Luscher v. Security Trust Company

• Decision Date: 10 January 1918
• Citation: 178 Ky. 593
• Parties: Luscher, et al. v. Security Trust Company, et al.
• Court: Kentucky Court of Appeals

178 Ky. 593

Luscher, et al. v. Security Trust Company, et al.

Court of Appeals of Kentucky.

Decided January 10, 1918.

Appeal from Fayette Circuit Court.

J. S. LUSCHER for appellants.

J. PELHAM JOHNSTON and HUNT & BUSH for appellees.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

There is one question of law presented by this record, and it is this: in the settlement of the estate of a decedent, can one of the heirs be charged with a debt due by him to the decedent that is barred by limitation? It comes up on this state of facts: Charlotte Stahel, in April, 1893, was compelled to and did pay a note for one thousand dollars on which she was the surety of her son, George C. Stahel. In 1916, Mrs. Stahel died intestate, and after her death one of her children brought a suit to settle her estate. In this suit it was charged, and stands admitted, that Mrs. Stahel paid, under the circumstances stated, the one thousand dollar note, and it was sought to set off this sum with interest from the date of its payment against the distributive share of George C. Stahel in the estate of his mother.

George C. Stahel for defense relied alone on the statute of limitation in such cases made and provided, and the lower court held that the plea of the statute presented a good defense; and from that judgment this appeal is prosecuted by Emma Luscher, a daughter of Mrs. Stahel, who was plaintiff in the suit below.

It is admitted by counsel for Emma Luscher, the appellant, that as Mrs. Stahel paid this one thousand dollar note in the ordinary course of her liability as a surety, an action by her, if she were living, to recover the amount so paid from George C. Stahel, would be barred if it had been brought when this suit was begun. But it is said that in a suit to settle the estate of a person who dies intestate, or in the settlement of an estate without a suit, the statute of limitation does not run against a debt or demand due by one of the heirs or distributees to the intestate, and that there may be deducted at any time from the share of the estate to which the heir would be entitled the amount of the debt or demand due by him to the intestate at the time of her death.

So far as our investigation, which has been much aided by that of counsel in the case, goes, this question is a new one in this state, and curiously enough there are not many decisions of other courts directly in point.

If the sum paid by Mrs. Stahel for her son could be treated as an advancement, there could be no question that the son should be charged with it in the distribution of his mother's estate, because section 1407 of the Kentucky Statutes provides, in part that: "Any real or personal property or money, given or devised by a parent or grandparent to a descendant, shall be charged to the descendant or those claiming through him in the division and distribution of the undevised estate of the parent or grandparent; and such party shall receive nothing further therefrom until the other descendants are made proportionately equal with him, according to his descendible and distributable share of the whole estate, real and personal, devised and undevised."

There is, however, no contention that this indebtedness should be treated as an advancement within the meaning of the statute. On the contrary, it is affirmatively admitted that when Mrs. Stahel became liable as surety on the note of her son and afterwards was obliged to and did pay the note, the ordinary relation of creditor and debtor was thereby established between her and her son and that she simply had a claim against him for the amount paid as his surety, the collection of which she might have enforced in the same manner that she could have enforced the collection of any other indebtedness.

There being then no attempt to treat the matter as an advancement, and no evidence in the record on this subject, as the case went off on demurrer, the question recurs, should the amount paid by the mother as surety, with interest thereon from date of payment, be deducted from the distributable share of George Stahel in the estate of his mother, although it was admittedly barred by the statute of limitation applicable to such demands, at the time of her death? Of course if this indebtedness had not been barred by the statute, there would be no difficulty in the way of setting it off against his distributable share.

Section 2514 of the Kentucky Statutes, fixing the period in which certain actions must be brought at 15 years from the date of their accrual, and section 2515, fixing five years as the time when certain actions must be brought after their accrual, are substantially the same in so far as the nature of the bar interposed by the statute is concerned, although a different period of time is fixed and the sections apply to different states of case: Joyce v. Joyce, 1 Bush 474. It is, therefore, not material which one should be applied here; and as the cause of action in Mrs. Stahel to recover the amount paid as surety accrued when she paid the debt, which was more than fifteen years before her death, we may, for the purposes of the case, look to section 2514, which provides, in part, that "Civil actions, other than those for the recovery of real property, shall be commenced within the following periods after the cause of action has accrued, and not after . . . . . . upon a bond or obligation for the payment of money or property, or for the performance of any undertaking, shall be commenced within fifteen years after the cause of action first accrued."

But the argument is made that this statute merely precludes the maintenance of an action for affirmative relief if it is not brought within the prescribed time, but does not operate to defeat the assertion of a claim by the estate of an intestate against a distributee for the purpose of defeating or reducing the right of the distributee to participate in the estate, because, as said by counsel for the estate, this character of relief is negative in its nature and not embraced by the statute, which does not put an obstacle in the way of the estate's retaining at any time out of the share of a distributee a debt due by him to the estate.

We do not, however, find ourselves able to agree with counsel in the soundness of the distinction attempted to be...