Nelson v. James Russell's Adm'rs

• Decision Date: 31 January 1852
• Citation: 15 Mo. 356
• Court: Missouri Supreme Court
• Parties: NELSON & O'BRYAN, TRUSTEES, v. JAMES RUSSELL'S ADM'RS.

15 Mo. 356

NELSON & O'BRYAN, TRUSTEES,

v.JAMES RUSSELL'S ADM'RS.

Supreme Court of Missouri.

January Term, 1852.

ERROR TO COOPER CIRCUIT COURT.

ADAMS & MILLER, for Plaintiff. 1. The law fixes the class to which demands belong, against the estates of deceased persons, and by law all demands, legally exhibited within one year from the date of the letters of administration, properly belong to the 5th class. Rev. Code, 1835, title Administration, art. 4, §§ 1, 5. 2. It is not necessary that the demand should be allowed within twelve months from the date of the letters of administration, nor that it should be presented for allowance within that time. To place the demand in the 5th class, it is only requisite to give the administrator notice in writing of the demand within the twelve months, and in this case the administrator was one of the payees and the sole custodian of the bond. He could not notify himself and his remedy was in his own hands. He had the right of retainer and when funds came to his hands, this demand was entitled to its due proportion thereof as a 5th class demand, and was ipso facto extinguished to the extent that funds for the payment of 5th class debts came to his hands. He had no right to keep it on foot and let the interest accum the estate. See § 5, art. 4, Rev. Codes 1835 and 1845; 2 U. S. Dig. 404; Montaigne v. Keith, 2 Hill, 340; 3 Johns. Dig. 338; 2 Paige, 149 3 Blacks. Com. 19, 20; 1 Bos. & Pul. 630; 8 Term R. 407; 2 Johns. R. 474; 1 Tucker's Com. 429; Toller's Ex'r, 295; 1 Salk. 306. 3. The class to which demands belong is fixed by law, and the statute requiring the County or Probate Court to determine the class of demands is merely directory, and its failure to determine the class, could not affect the rights of the claimant, and if the court should act upon the matter, its action is not such a res adjudicata that it could not upon a proper state of facts, and under proper notice be inquired into and corrected. The classification is no part of the allowance of the demand--is not a question that is ever submitted to a jury or to the court upon the issue whether a party is entitled to the allowance of his demand, but is a matter arising upon motion after the demand is allowed, and is in the nature of a summary proceeding--is similar to a motion in the progress of a cause or after it has been determined, and in all such cases it has ever been held that the matter may be reinvestigated upon a proper state of facts. Simson v. Hartt, 14 Johns. R. 75, 76; Callahan v. Griswold, 9 Mo. R. 785, 791. 4. As the facts upon which this motion is based were not before the County Court, and the attention of that court was confined to the date of the allowance, they formed a proper basis for the interposition of the Probate Court in placing the allowance in its proper class; the fifth class, to which under the statute, it properly belonged. 5. The fact that no money was in the hands of the administrator at the time this motion was made, is no reason why it should not be entertained, and the demand placed in its proper class; for money might hereafter come to his hands and the other creditors, especially the 6th class creditors, might be compelled to refund (either by the administrator or by his creditor), their due proportion of this demand, inasmuch as by mistake or ignorance of the facts, they have received more money on their demands than they were entitled to. Walker v. Hill, 17 Mass. R. 380. 6. This demand, in point of fact, never was classed by the County Court. That court is a court of record, and can only speak by its records. The minute books of a court are not its proper records and unless a matter is transferred to the records at large, it will not be considered as an act of the court. The very fact of its not being transferred to the records at large, is evidence that it was not considered as the act of the court.

HAYDEN, for Defendants. 1. The Probate Court, at its January term, 1848, had no power or jurisdiction to revise and correct the judgment of the County Court rendered in the year 1845, in the classification of said demand for payment by the administrator. 2. If the Probate Court possessed the power contended for by the plaintiffs in the motion (which is denied) there is no evidence in the record showing that it ought to have been exercised by the court for these reasons: First, the claim was not exhibited to Trigg and Russell, as said administrators, or either of them, within the meaning of the Administration law, so as to entitle it as a demand, to a place in the fifth class. Second, the two out of the three plaintiffs, in having the claim placed in the 6th class, could not, against the will of the third plaintiff, change the order of the court or its judgment. Third, the judgment re-classing a claim, after the application of all the funds of the estate by the administrator, in the payment of the 6th class of demands, pro rata including the claim in controversy, under the judgments of the County Court, would, under the circumstances of this case, be most iniquitous. For the admininistrators were bound to pay the debts allowed against them in the order they were classed. See art. 4, §§ 1, 4, 5, 6, 8, 12, 21, 22, 23, 24, 28. 3. If Trigg neglected to present the claim, as payee, for allowance against the estate of J. H. Russell, as soon as it ought to have been, or might have been done, Nelson & O'Bryan, as payees, were equally guilty of negligence, being joint payees of the note, and therefore, as such parties, they have no right to complain of Trigg, having failed to show that Trigg had taken upon himself the burthen of collecting the debt, and in the further absence of proof, that they, as his co-payees had requested him to act and that he had refused, though bound to do so. The question as to the consequences resulting from any supposed negligence of Trigg, as one of the payees, is one to be settled between him...