Lipperd v. Lipperd's Estate

• Decision Date: 03 February 1914
• Citation: 163 S.W. 934,181 Mo. App. 106
• Parties: LIPPERD v. LIPPERD'S ESTATE et al.
• Court: Missouri Court of Appeals

163 S.W. 934

181 Mo. A. 106

LIPPERD v. LIPPERD'S ESTATE et al.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. EXECUTORS AND ADMINISTRATORS (§ 3) — APPOINTMENT OF ADMINISTRATOR—NECESSITY —FILING OF CLAIM.

While the filing of a claim against a decedent's estate in the probate court without presentation to the administrator was not sufficient as a presentation of the claim, it was proper to so file it, to advise the probate court that there was a creditor desiring her claim adjudicated, and that the appointment of an administrator was necessary.

2. APPEAL AND ERROR (§ 1043) — HARMLESS ERROR.

On the trial of a claim against a decedent's estate, which was certified into the circuit court of S. county and taken on change of venue to another county, defendant, before the impaneling of the jury, moved to require the clerk of the S. circuit court to send up an amended transcript and the original papers, including the original demand. A full transcript and the original papers were afterwards sent up and filed on the second day of the trial, and though defendant objected to the filing as out of time, he made no attack on the transcript or application for a continuance. The parties had previously stipulated that an office copy which had been filed was a true copy of the papers in question and might be considered for all purposes. Held, that defendant was not harmed by the failure to file duly certified papers in the first instance or by the subsequent filing.

3. EXECUTORS AND ADMINISTRATORS (§ 225) —CLAIMS—DELAY IN PRESENTATION.

Code Iowa 1897, § 3349, providing that certain demands against a decedent's estate, if not filed and allowed, or if filed and notice be not served within 12 months of the giving of the notice of the issuance and letters of administration, are barred, does not apply to a claim by a resident of this state, where the decedent has property in this state, notwithstanding Rev. St. 1909, § 1895, providing that, when a cause of action has been fully barred by the laws of the state in which it originated, such bar shall be a complete defense to any action in this state, since a creditor residing in this state is entitled to have the estate administered and her claim adjudicated in this state.

4. TRIAL (§ 191) — DISPUTED CLAIMS — INSTRUCTIONS.

On the trial of a claim against a decedent's estate, an instruction to find for defendant unless notice in writing of the presentation of the claim was served on the administrator or waived by him within one year after the publication of the notice of the granting of letters of administration in Iowa, the laws of which state required such presentation and notice, was properly refused, where one of the questions of fact in the case was whether the claimant was a resident of Iowa or of Missouri.

5. EXECUTORS AND ADMINISTRATORS (§ 256) —DISPUTED CLAIMS—TRIAL—EVIDENCE.

On the trial of a claim against decedent's estate, an order of the probate court directing the public administrator to administer the estate was properly received in evidence, notwithstanding the recital therein that there were no known relatives of the deceased in the state entitled to administer the estate, except the claimant, whether claimant was a resident being one of the disputed questions in the case, especially where defendant, though he objected to its admission, made no specific objection because of the presence of such recital.

6. APPEAL AND ERROR (§ 237) — LIMITING CONSIDERATION OF EVIDENCE.

On the trial of a claim against a decedent's estate, where claimant's residence was disputed, if defendant objected to a recital in the order directing administration of the public administrator that she was a resident, he should have had it stricken by an instruction to exclude it from consideration.

7. APPEAL AND ERROR (§ 690) — RECORD — CONCLUSIVENESS.

Where the record on the trial of a claim against a decedent's estate showed affirmatively that claimant's affidavit to her claim was not offered or in evidence, error could not be predicated thereon notwithstanding the apparent concession of respondent's counsel that it was in evidence.

8. TRIAL (§ 260)—CURE BY OTHER INSTRUCTIONS.

On the trial of a claim for services rendered a decedent by his sister, if, as claimed, the instructions given for the claimant failed to require a finding of a mutual agreement that the services should be paid for, the omission was supplied by instructions given for defendant to find for defendant unless there was such a mutual agreement, and unless the decedent expected to pay for the services, and that a statement by one member of a family that another would be paid for services out of his property after death was not such a promise to pay as would support a recovery.

9. APPEAL AND ERROR (§ 882) — REVIEW — INVITED ERROR.

A party cannot complain of instructions given at his request, even though erroneous.

10. EXECUTORS AND ADMINISTRATORS (§ 256) —DISPUTED CLAIMS—JUDGMENT—FORM.

On the trial of a claim against a decedent's estate, certified into the circuit court, the judgment for claimant should not have awarded execution, but should have been ordered certified to the probate court for classification against the estate.

11. APPEAL AND ERROR (§ 1144) — DISPOSITION OF CAUSE—MODIFYING JUDGMENT.

Under Rev. St. 1909, § 2083, requiring the Supreme Court and Courts of Appeals to award a new trial, reverse or affirm, or give such judgment as the circuit court should have given, as to them shall seem agreeable to law, a judgment on the trial of a claim against a decedent's estate would not be reversed for the error in awarding execution, but judgment would be rendered for the claimant and certified to the probate court for classification against the estate.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Proceeding on a claim by Elizabeth Lipperd against the estate of N. B. Lipperd, and J. H. Jeffries, administrator. From a judgment for claimant, the administrator appeals. Amended and affirmed.

The points relied on by appellant are as follows:

The court erred in refusing to sustain defendant's motion requiring the Schuyler county circuit clerk to send up amended transcript and the original papers, including the original demand, in the cause. Rev. St. Mo. 1909, §§ 1934, 1939; Becker v. Lincoln Real Estate & B. Co., 118 Mo. App. 74, 93 S. W. 291.

The court erred in requiring defendant, to go to trial without the original account having been sent up from Schuyler county circuit court, without it being on file or in court, or present at the trial. Rothwell v. Morgan, 37 Mo. 107; Graham v. Morstadt, 40 Mo. App. 333, 336, 337; Christie v. Mo. Pac. Ry. Co., 94 Mo. 453-456, 7 S. W. 567; Han. & St. Jo. R. R. Co. v. Knudson, 62 Mo. 569-571.

Action on the account was barred by the general statutes of limitations. Rev. St. Mo. 1909, § 1895; Berkley v. Tootle, 163 Mo. 584-592, 63 S. W. 681, 85 Am. St. Rep. 587; Wojtylak v. Kansas & T. Coal Co., 188 Mo. 262, 87 S. W. 506; Merritt Creamery Co. v. Atchison, T. & S. F. Ry. Co., 128 Mo. App. 424, 107 S. W. 462; McCoy v. C., B. & Q. Ry. Co., 134 Mo. App. 622, 114 S. W. 1124; Baker v. Stonebraker's Adm'rs, 36 Mo. 338-349; 19 Am. & Eng. Enc. of Law. p. 157.

The account was barred by the statutes of Iowa requiring demands against estates to be presented in one year after letters of administration were granted. Rev. St. Mo. 1909, § 1895; McCoy v. R. R., 134 Mo. App. 622, 114 S. W. 1124; Code Iowa 1897, §§ 3304, 3349; Noble v. Morrey, 19 Iowa, 509; Willcox v. Jackson, 51 Iowa, 296, 1 N. W. 536; Brownell v. Williams, 54 Iowa, 353, 6 N. W. 530; Schlutter v. Dahling, 100 Iowa, 515, 69 N. W. 884; Bentley v. Starr, 123 Iowa, 657, 99 N. W. 555; Insurance Co. v. Lisker, 122 Iowa, 341, 98 N. W. 127; Rev. St. Mo. § 1899. In re Estate of Williams, 130 Iowa, 553, 107 N. W. 608; Sullivan v. Kenney, 148 Iowa, 361, 126 N. W. 349; Durston v. Pollock, 91 Iowa, 668, 60 N. W. 221; Hunt v. Fay, 7 Vt. 170; 19 Am. & Eng. Enc. of Law, p. 157, limitation; Commercial Bank v. Slater, 21 Minn. 172, 174.

The court erred in permitting plaintiff to file amended transcript and original papers during the second day of the trial.

The court erred in admitting the original demand sued on. Rev. St. Mo. 1909, § 201; Koch v. Hebel, 32 Mo. App. 103, 113, 115.

The court erred in admitting order of probate court authorizing the public administrator to take charge of and administer the estate, which showed the probate court found plaintiff was then a resident of Missouri. Rev. St. Mo. 1909, § 201; Koch v. Hebel, 32 Mo. App. 193.

The court erred in admitting order of probate court certifying the cause to the circuit court.

The court erred in refusing to sustain defendant's objection to question propounded to witness Jerry F. Barnett, if Frank Lipperd was the son of N. B. Lipperd, and in failing to withdraw the answer from the jury and also answer of witness stating "he thought plaintiff mostly had care and raising of the child."

The court erred in not excluding the evidence of witness Mitchell, who had been duly subpœnaed and had absented himself from court without permission of court or consent of defendant, and gone to Iowa, beyond the jurisdiction of the court, and for that reason could not be further cross-examined by defendant's counsel.

The court erred in refusing to charge, at the close of all the evidence, to find for defendant. Bash v. Bash, 9 Pa. 260; Anderson v. Osborn, 62 Wash. 400, 114 Pac. 160; Stone v. Troll, 134 Mo. App. 308, 114 S. W. 82; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S. W. 200; Hall v. Finch, 29 Wis. 278, 9 Am. Rep. 559; Duffey v. Duffey, 44 Pa. 399; Candor's Appeal, 5 Watts & S. (Pa.) 513; Baird v. Citizens' Ry. Co., 146 Mo. 265, 48 S. W. 78; Hayden v. Parsons, 70 Mo. App. 493; Lillard v. Wilson, 178 Mo. 145, 77 S. W. 74; McMorrow v. Dowell, 116 Mo. App. 289, 90 S. W. 728; Rose v. Mays, 139 Mo. App. 246, 122 S. W. 769.

The court erred in giving...