Munday v. Leeper

• Decision Date: 27 February 1894
• Citation: 25 S.W. 381,120 Mo. 417
• Parties: Munday v. Leeper, Administrator, et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 381

120 Mo. 417

Munday v. Leeper, Administrator, et al., Appellants

Supreme Court of Missouri, Second Division

February 27, 1894

Appeal from Lewis Circuit Court. -- Hon. B. E. Turner, Judge.

Affirmed.

Blair & Marchand and Clay & Ray for appellants.

J. C Anderson and George Ellison for respondent.

OPINION

Sherwood, J.

This case, like that of Miller against the same parties defendant, was a proceeding in the nature of a creditor's bill, and, upon evidence similar in all respects, a decree setting aside the deed made to Dorothy Knight at the tax sale was entered.

There is one point of divergence, however, between this case and the former one, and that is this: The claim of plaintiff was allowed in the probate court on the twenty-first day of August, 1883, for the sum of $ 218.28, and placed in the sixth class of demands. Leeper, as public administrator, took charge of the estate of Zebulon T. Knight on the eighth day of August, 1881. He published a notice that he had thus taken charge of such estate. The first publication of the notice was made on the twelfth of August, 1881; the second on the nineteenth day of the same month; and the third on the twenty-sixth of that month. The statute requires that the notice of the granting of letters of administration shall be published by the administrator for three weeks, which means for twenty-one days. R. S. 1879, sec. 87. Here the notice was only published for two weeks.

It has frequently been ruled by this court that unless an administrator makes publication in the time and manner required by law, the publication is invalid, and constitutes no basis on which to rest the special statute of limitations. Wiggins v. Lovering's Adm'r, 9 Mo. 262; Montelius v. Sarpy, 11 Mo. 237; Blackwell's Adm'rs v. Ridenhour, 13 Mo. 125; Bryan v. Mundy's Adm'r, 17 Mo. 556; Clark v. Collins, 31 Mo. 260; Wilson v. Gregory, 61 Mo. 421. See, also, State ex rel. v. Tucker, 32 Mo.App. 620, and cases cited.

And where an administrator pleads the special statute of limitations he must aver the giving of notice of the grant of such letters, and make proof of such allegations on the trial. 9 Mo. 262. Revised Statutes, 1879, section 307 makes public administrators "subject to the same duties, penalties, provisions and proceedings as are enjoined upon or authorized against executors and administrators by this chapter, so far as the same may be applicable."

The provisions of the statute respecting private administrators have been in practice held to apply to public administrators as to publication that estates have been taken charge of by them or ordered into their hands though the statute relating to their duties does not in terms, require such publication to be made by them. So...