Keys v. Keys' Estate

• Decision Date: 25 February 1909
• Citation: 116 S.W. 537,217 Mo. 48
• Parties: KEYS et al. v. KEYS' ESTATE et al.
• Court: Missouri Supreme Court

116 S.W. 537

217 Mo. 48

KEYS et al. v. KEYS' ESTATE et al.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

1. TIME (§ 10)—FILING CLAIMS AGAINST DECEDENTS' ESTATES—SUNDAY.

Under Rev. St. 1899, § 4160 (Ann. St. 1906, p. 2252), providing that time shall be computed by excluding the first day and including the last, except where the last day is Sunday, where the last day for filing a claim against the estate of a decedent fell on a Sunday, the claimant had all of the following Monday in which to file it.

2. EXECUTORS AND ADMINISTRATORS (§ 228)— "PRESENTATION" OF CLAIMS.

Where a claim against the estate of a decedent is exhibited to the administrator and filed in the probate court, the claim is presented within the statute requiring the presentation of claims; the word "presentation" not meaning an actual presentation to the judge and a hearing on the claim.

3. BILLS AND NOTES (§ 448)—RIGHTS OF INDORSER—RECOVERY FROM MAKER.

Where a creditor who had advanced money to a firm took notes secured by chattel mortgages, and thereafter took up the notes at maturity on failure of the firm to pay the same to indorsees, and placed the amount thereof in an account running between him and the firm, his right of action against the firm was on the notes, and not on the account.

4. PRINCIPAL AND SURETY (§ 182)—PAYMENT OF DEBT BY SURETY—RIGHT OF ACTION.

A surety paying the debt of his principal may sue the principal on the implied promise to repay.

5. BILLS AND NOTES (§ 440)—INDORSEMENT—RIGHTS OF INDORSER ON PAYMENT.

A contract of indorsement is an independent contract binding the indorser to pay the note, and, where the indorser is compelled to pay the note, he is entitled to its return from his indorsee, and the note is the evidence of the debt against the maker.

6. PAYMENT (§ 67)—PAYMENT BY NOTES.

Where a debtor on account delivers to the creditor his note for the amount thereof secured by a chattel mortgage, the presumption is that the old obligation is paid, while the giving of a note without security may not extinguish the original debt.

7. EXECUTORS AND ADMINISTRATORS (§ 227)—CLAIMS—STATEMENT.

Where a claim against the estate of a decedent was on a note, the claimant could not recover on stating an account.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Proceedings by Cary M. Keys and another to establish a claim against the estate of Cary M. Keys, Jr., deceased, in which George R. Henderson, administrator ad litem, appeared and contested its allowance. From a judgment of the circuit court disallowing the claim rendered on appeal from the probate court allowing it, claimants appeal. Affirmed.

R. M. Nichols, for appellants. Wm. F. Woerner and Rudolph Schulenberg, for respondent.

GRAVES, J.

This cause originated in the probate court of the city of St. Louis. In that court the plaintiffs had judgment for nearly $11,000. From that judgment an appeal was taken to the circuit court, wherein Hon. Jno. W. Dryden was appointed as referee, and made a finding of facts as well as a statement of his conclusions of law. The referee recommended judgment for the defendant, and judgment was so entered by the court, after overruling the plaintiffs' exceptions to the report of the referee. From that judgment the plaintiffs appeal, and thus the case is here. The referee in his report carefully stated the issues as well as his findings of fact. So carefully was this done that we shall use the same as the statement of this case. He says:

"The Issues.

"The cause arose in the probate court of the city of St. Louis at its December term, 1901. This appears by the transcript from that court filed in the St. Louis circuit court on February 2, 1902, upon an appeal taken from a judgment of that court rendered January 17, 1902, in the matter of the estate of one Cary M. Keys, Jr., deceased, allowing a demand against said estate in favor of C. M. Keys & Co. (a firm composed of Cary M. Keys and Hugh Mills), as claimants, in the sum of $10,992.22, taken by George R. Henderson, who had been appointed by that court to defend the estate in the matter of said demand. From the transcript and the original papers transmitted therewith to the circuit court it appears that the demand sought to be allowed was set out in a written notice thereof given to Cary M. Keys as administrator of said estate of Cary M. Keys, Jr., on November 30, 1901, by Hugh Mills for himself and copartner, and filed in said probate court on Monday, December 2, 1901; also, that on December 5, 1901, said probate court on its appearing that said Cary M. Keys, one of the claimants, was the administrator of said estate, appointed the said Henderson to represent and defend it in respect of said demand. It also appears from said papers that said demand was for a balance of $10,992.22 on an open account in favor of said Cary M. Keys & Co. against the firm of Fields & Keys, Jr., and set out in said notice. The account so set out therein was headed thus. `Dr. Fields & Keys, Jr., in Account with Cary M. Keys & Co., Cr.'— and consisted of 278 debit items of various dates between November 8, 1897, and November 25, 1901, and of 114 credit items of various dates in the same period. Said debit items were for various sums aggregating $507,439.15, and said credit items were for various amounts aggregating $496,446.93; and, after deducting the aggregate of said credit items from that of said debit items, the account showed a balance of $10,992.22 in favor of claimants. The debit items in said account appeared to be almost entirely either charged for cash paid on drafts, or for the amount of notes or interest or discounts; and the credit items therein appeared to be almost wholly credits for cash, the amounts of net sales of cattle or of notes or bills receivable.

"It did not from anything stated in the account appear for or to whom the debit items of cash noted in it were paid, or whether they were paid at the request of the deceased or of Fields & Keys, Jr., or not, or by or to whom the notes named in it were made, or when they were so made. It appeared in the account that all the credit items in it up to and including February 28, 1900, aggregated the same amount as all the debit items to that day, also, that all the credit items therein up to and including the 23d of October, 1901, were equal in amount to the total of all the debit items to that day; that is, to and including said 23d day of October, 1901.

"After the appeal taken in the cause to the circuit court under authority of an order made herein on December 26, 1902, the account was amended by the claimants by their adding to the balance in their favor of $10,992.22, shown thereby as originally filed, two further debit items under date of November 25, 1901, reading as follows:

                 1901
                Nov. 25. To balance due on note
                         No. 1,574, amended by
                         order of court..........      $ 9,931 47
                 1901
                Nov. 25. To interest paid on note
                         No. 1,574, amended by
                         order of court..........         518 80
                         Which two items being so
                         added to said balance of      10,922 22
                                                      __________
                         Made the total balance
                         claimed at the time of the
                         hearing by me.............   $21,442 49
                

"Findings of Facts.

"On and before November 7, 1897, and up to the time of the presenting of the demand sued for herein for allowance, the claimants, Cary M. Keys and Hugh Mills, were copartners in trade under the name of Cary M. Keys & Co., engaged in the business of selling cattle on commission at the National Stockyards in Illinois and elsewhere. From said November 7, 1897, and up to November 11, 1899, the decedent, Cary M. Keys, Jr., who was a son of the claimant Cary M. Keys, was a resident of the Indian Territory, and was there engaged in the business of buying, feeding, and forwarding for sale at the National Stockyards and elsewhere divers sorts of cattle. He was during said time carrying on said business in partnership with one B. T. Fields under the name of Fields & Keys, Jr. On November 11, 1899, while still a resident of said Indian Territory, he died in said territory. No letters of administration upon his estate or upon the partnership estate of the firm of Field & Keys, Jr., were ever granted to any one in said Indian Territory, nor was there any administration of the partnership estate of said firm, either by the surviving partner or by any one else in Missouri. On the 1st day of December, 1899, letters of administration of the estate of said Cary M. Keys, Jr., were granted by the probate court of the city of St. Louis to his father the said claimant, Cary M. Keys, and he at once qualified and began the administration of said estate. Due notice of the grant of such letters was published by him within 30 days after their date, and on December 27, 1899, due proof that such publication had been made was filed by him as administrator in said court.

"Between November 7, 1897, and the death of said Cary M. Keys, Jr., the claimants paid to the use of him and his said firm of Fields & Keys, Jr., the amounts of sundry drafts drawn on them, some by said firm and some by himself. The total of the drafts so drawn on and paid by them before decedent's death was $72,424.65, and the amounts thereof are included in the debit items of the account set out in their notice of demand. Said Fields & Keys, Jr., from time to time in the period mentioned, and before decedent's death, paid to the claimant divers sums on account of their indebtedness to them for the amounts of said drafts so paid, all of which appear as credits in the account. They also from time to time in said period made to claimants sundry promissory notes payable to their order in settlement of their said indebtedness for the moneys so paid by them for their use upon said drafts. The amounts of these notes are also included in the credit items of the account. Most of these...