Kingsbury v. Gastrell's Estate

• Decision Date: 11 October 1915
• Docket Number: 17222
• Citation: 69 So. 661,110 Miss. 96
• Parties: KINGSBURY et al v. GASTRELL'S ESTATE
• Court: Mississippi Supreme Court

69 So. 661

110 Miss. 96

KINGSBURY et al v. GASTRELL'S ESTATE

No. 17222

Supreme Court of Mississippi

October 11, 1915

APPEAL from the chancery court of Adams county. HON. J. S. HICKS Chancellor.

Petition of Maude E. Barton, executrix of Mrs. L. E. Gastrell deceased, against Ruth S. Kingsbury and others to construe the will.

From a decree, Ruth S. Kingsbury appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Brandon & Brandon, for appellants.

First Said chancery court erred in its decree of August 2, 1913, in holding that the notes of Horace E. Kingsbury and Ruth S Kingsbury in question are not barred by the statute of limitations.

In response to our contention the counsel for appellees will of course reply on the doctrine of stare decisis. We are taking this appeal with a full knowledge of the case law on the subject in point, and are asking this court to disregard the same and establish a new rule.

We are aware that the general rule of law, broadly stated, is that where a cause of action against a person has not accrued at the date of his death, the general statute of limitations does not commence to run until there is an administration on decedent's estate--in the absence of legislation to the contrary. And, on the other hand, if the cause of action accrued in decedent's lifetime, his death (in the absence of legislation to the contrary) does not suspend the running of the statute until administration is taken out. See 25 Cyc. 1278 (2), and 17 Cyc. 930, and note 53.

We are aware that this honorable court has theretofore recognized and followed the above rule in a number of cases. See: Abbott v. McElory, 10 S. & M. 100; Bingaman v. Robertson, 25 Miss. 501; Pope v. Bowman, 27 Miss. 194; French v. Davis, 38 Miss. 218; Buckingham v. Walker, 48 Miss. 609; Sively v. Summers, 57 Miss. 712; Jennings v. Pearce, 14 So. 318. If the court is unwilling to alter the rule hitherto followed, we are frank to admit that our first assignment of error is not good.

But what is the reason for the rule that the general statute of limitations does not begin to run in this and similar cases until administration is taken out. Because, as laid down in Cyc., "until that time a cause of action has never accrued, there being no one who could be sued."

We suggest that this rule does not rest upon a sound foundation in Mississippi, because under our statutes, after the expiration of the first thirty days within which the next of kin has the prior right to apply for administration upon a decedent's estate, any creditor has a right to apply for and receive administration, or, if a creditor does not care to qualify himself, after sixty days he can ask that letters be granted to the county administrator. If a creditor, who is presumably the person most interested in the collection of his claim, chooses to sleep upon his rights, to abstain from taking steps to subject the decedent's estate to the payment of his claim, why should he be given the benefit of the rule which the courts have established, and which in this state does not rest upon any statutory provision, especially when in so many cases the application of the established rule, after the lapse of years, may (as in the present instance), work a hardship upon the dependent widow and children of the deceased, to the extent even of depriving them of a home.

As shown by the record, Horace Kingsbury died in 1901, and no administration was ever taken out on his estate. After the lapse of twelve years, in 1913, three promissory notes secured by mortgage on his home, came into the hands of the executors of his aunt, Mrs. Gastrell, who had purchased them from a former holder and with the intention of protecting his widow from that holder and in fact of giving them to her. Had Mrs. Gastrell desired to bring suit upon said notes or to subject the estate of Horace Kingsbury to the payment thereof, she could have qualified as his administratrix or had some one else do so. Even this was unnecessary in the present instance, for she could have foreclosed the deed of trust without administration.

Not one of our several statutes of limitations contains any provisions that it shall not operate for the benefit of the estates of decedents till administration is taken out. If our law-makers desired such restriction, would it not be embodied in the law? Is it not the fact that such restriction was not contemplated, and therefore the right of creditors to take out administration was given?

We therefore ask the court to consider in this case (as it has occasionally done in other cases), a departure from the doctrine of stare decisis, and a modification of the rule heretofore followed. We ask the court to hold that in this case and in further cases that creditors of decedents are chargeable with a reasonable amount of diligence in collecting their claims, and with the duty of availing themselves without unreasonable delay of the provisions of the law intended to enable them to do so; and to modify the established rule by holding that if a person dies owing a note or other debt which does not become due till after his death, that if some one has not already been appointed to administer the estate, yet nevertheless the statute of limitations commences to run immediately after thirty days from the date the note or debt became due--and for the reason that the creditor holding the note has the right to apply for and take out administration after thirty days from decedent's death, if those first entitled have not already done so.

The establishment of such rule would work a hardship on no one; it would obviate the hardship which often occurs, as in the present case; and we respectfully submit under the statutes of Mississippi would readily bear the test of the "rule of reason."

Upon second Assignment of Error.

Second:--The court erred in decreeing that said notes were never given by the testatrix, Mrs. Gastrell, to any one, but constituted a part of her estate at her death, and are now assets thereof.

This second suggestion of error presents a question of fact rather than of law. What was the manifest intention of Mrs. Gastrell, as disclosed by the record. Her nephew, Horace Kingsbury, died in debt, leaving notes secured by a deed of trust on his modest home. These notes were held by a stranger. They had not matured at the date of his decease. Subsequently Mrs. Gastrell purchased these notes, but not till after the last one had matured, after the time when Mrs. Merrick had a right to foreclose the deed of trust on the home. Why did Mrs. Gastrell purchase these notes? She told her brother, Mr. A. T. Gastrell, that she did it to save the home for Ruth Kingsbury (her nephew's widow) and his child Lucy--the namesake of Mrs. Gastrell. It is further admitted by the executors of Mrs. Gastrell, that in her lifetime she said she did not intend to enforce said notes and deed of trust, and that she intended to give up said notes and security. And when she died twelve years after the death of Horace Kingsbury, she had never attempted to collect the notes or to foreclose the deed of trust, and had never taken out any administration upon his estate. During all this time the widow and child of Horace Kingsbury, his sole heirs at law, continued and still continue to live in the little home he left, claiming it as theirs and feeling safe in its ownership and possession; and considering that their aunt, Mrs. Gastrell, had given them the debt thereon, and that they would never be disturbed.

But Mrs. Gastrell died, and her executors found the notes in question among her papers. They were not mentioned in her will, although that will goes into the most minute detail in disposing of all her property, both real and personal. Manifestly she did not consider these notes any longer as property to be disposed of by will. Manifestly she must have considered that her expression of purpose that she bought the notes for the protection of her nephew's widow and child, that it was her intention to give them the debt; her failure for so many years to foreclose the deed of trust or to take out administration on the estate of Horace Kingsbury; manifestly she must have considered that all this constituted a gift of the indebtedness to those for whose benefit she purchased the notes.

We respectfully submit to the court that under the facts of the case our second assignment of error is good, and that had the learned chancellor not erred, he would have decreed that whilst physical possession of the notes was not parted with, that nevertheless Mrs. Gastrell had given and forgiven the debt unto her nephew's widow and child, and that at her death said notes did not constitute any part of her estate or the assets thereof.

W. C. Martin, for appellee.

The first assignment deals with the point as to whether the notes in question, and deed in trust securing them, were, or are, barred by the statute of limitations, or any statute of limitations.

That they are not barred is admitted by the candid brief on the other side--counsel there citing the several cases in our jurisprudence which...