North v. Walker's Adm'r

• Decision Date: 31 October 1877
• Citation: 66 Mo. 453
• Parties: NORTH et al. v. WALKER'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

66 Mo. 453

NORTH et al.

v.WALKER'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

The decision of that court is reported in 2 Mo. App. 174.

John M. & C. H. Krum for appellant.

1. The statute of limitations pleaded by appellant bars the right of respondents to a judgment in this case. Letters testamentary were granted December 10th, 1868. Publication of notice to creditors of the grant of these letters was made December 17th, 1868. The note sued on, by its terms, became due March, 1870. This suit was begun April, 1872, more than two years after the note became due. Prior to the institution of this suit, the note had never been exhibited as a claim or allowed against Walker's estate. Wag. Stat., p. 86, Sec. 19; Wag. Stat., p. 102, §§ 2, 4, 5, 6 and 8; Wiggins v. Lovering's Admr., 9 Mo. 262; Montelius v. Sarpy, 11 Mo. 237; Tevis v. Tevis, 23 Mo. 256; Richardson's Admr. v. Harrison, Admr'x, 36 Mo. 96.

2. An administrator cannot, in any case, waive the statute of limitations, and suffer a claim to be allowed which is barred by the statute.

3. An administrator cannot, himself, admit or allow a claim against the estate he represents. All claims against an estate must be exhibited and proved by the methods, and in one of the courts prescribed by statute. No court can admit or allow a claim against an estate, except on proper proof.

4. There are but two methods provided by law for the allowance of claims against the estates of deceased persons. 1st. By serving on the administrator a notice in writing, stating the nature and amount, and a copy of the instrument or account upon which the claim is founded; 2nd. Bringing suit on the demand in some court of record. Wag. Stat., Art. 4, §§ 4, 5 and 8, p. 102, and § 15, p. 104. No demand can be allowed unless the claimant first makes oath that he has allowed the estate for all payments and offsets to which it is entitled. Ib. § 12. The clerk of the court shall keep an abstract of all demands established, showing their amount, date and class. Ib. § 26. No claimant can avail himself of the benefit of the notice given under the 5th section, unless he present his demand to the court in the manner provided by law for allowance, within three years after the granting of letters. Ib. § 26.

5. It is the policy of the laws of Missouri, pertaining to probate administration of estates, that they shall be speedily settled and distributed. Even provision is made for the allowance of claims not yet due, (by making a rebate) so that they may be classed in the 5th class.

6. As the note was never proved and allowed before this suit was brought, the vital question is, was the debt exhibited in such way, form and effect as to prevent the statute of limitations from running against it. It is not sufficient for the claimant to inform the administrator that he has a demand against the estate, and stop there, and and allow more than two years to elapse before moving again. True, it appears in this case that the administrator admitted that he knew the claim was right and valid, still as the administrator himself could neither admit or allow the claim against his intestate's estate, and as the claim was not, in fact, proved and allowed, the whole proceeding amounted to nothing, and the claim remained neither approved nor allowed. Nor was it sufficient to produce the note before the judge of probate, notice and all objection having been waived by the administrator. The claim of plaintiff remained unproved and not allowed, more than two years before this suit was begun, and more than three years elapsed after the granting of letters before this suit. Thus, it is shown, that notwithstanding the administrator waived notice (as he was authorized by statute to do, § 17), the claimants in the prosecution of this suit can have no benefit of their notice to the administrator because more than three years elapsed after the granting of letters before this suit was begun.

7. The Court of Appeals assumed that the act of the executor extending the time of payment of the note was beneficial to the estate, but there is no proof whatever in the record that such was the case; and is immaterial whether it was or not. The executor had no power to grant the extension.

8. The judgment of the Court of Appeals is excessive, because that court computed ten per cent. interest on the note instead of nine, from its maturity.

Davis, Thoroughman & Warren, for respondents.

1. The evidence shows that the claim was exhibited to the executor under section 5 of the administration act, and the executor with the approval of the court, having prevented the allowance, by the agreements for extension, is estopped from availing himself of the limitation of Sec. 6, of the same act. That the executor himself applied for the indulgence granted is sufficient to take the claim out of the statute. Calanan v. McClure, 47 Barb. (N. Y.) 206; Cartwright v. Greene, Ib. 479; Harrison v. Jones, 33 Ala. 258; Puckett v. Janus, 2 Humph. (Tenn.) 565; Cheeseman v. Kyle, 15 Ohio 15; Herman on Estoppel, §§ 418, 420; Wells v. Miller, 45 Ill. 33.

2. The executor had the power to make the agreements for extension. Smarr v. McMaster, 35 Mo. 351; Kee v. Kee, 2 Grattan 116, 128; Boyd v. Ogelsby, 23 Gratt. 674; Williamson v. Anthony, 47 Mo. 299; Williams on Executors, 1196; W. S., p. 74, § 29.

3. The claim was substantially exhibited within the meaning of the law, under §§ 15, 16 and 17, of the act, (W. S., p. 104,) within two years after letters granted; and the subsequent delay in establishing it does not prejudice the right of recovery. Tevis v. Tevis, 23 Mo. 258; Williamson v. Anthony, 47 Mo. 300; Wells v. Miller, 45 Ill. 33; Wile v. Wright, 32 Iowa 451; Stiles v. Smith, 55 Mo. 368. A substantial compliance with the statute is all that is required. Gansevort v. Nelson, 6 Hill 389; Wells v. Miller, 45 Ill. 33; Mason v. Tiffany, 45 Ill. 392; Johnson v. Corbett, 11 Paige 265; Cheeseman v. Kyle, 15 Ohio 15; Flinn v. Shackleford, 42 Ala. 202; Boyd v. Ogelsby, 23 Grattan, 674.

NORTON, J.

This suit was instituted in the circuit court of St. Louis county, on the 30th of April, 1872. It is founded on a note dated March 14, 1867, for $24,000, payable to plaintiffs three years after date, and executed by one Isaac Walker, with interest at ten per cent. after maturity.

It is alleged that said Walker died in October, 1868, leaving a will in which Thomas A. Walker was appointed executor, to whom letters testamentary were duly issued by the probate court of St. Louis county, on the 10th of December, 1868; that the said Isaac Walker, in his life time, to more effectually secure the payment of said note, executed to plaintiffs a deed of trust to certain property in St. Louis county, from the proceeds of the sale of which plaintiffs, on the 18th of April, 1872, received the sum of $17,226.21; that all interest on said note up to September 14th, 1871, had been paid, and that the balance was due and unpaid. The answer of defendant sets up that letters testamentary were issued to defendant on the 10th of December, 1868, and that on the 17th day of said month, he gave the required statutory notice that letters testamentary had been granted him, and that all creditors should present their claims for allowance within two years, &c. that the note in question was not exhibited nor allowed by the probate court, and that no suit was brought thereon within two years after the publication of said notice. It was further alleged that said note had not been exhibited or proved, and that no suit had been brought thereon within three years after the publication of said notice

To this answer plaintiffs filed a replication in substance as follows: 1st. They admit that the note sued on was not presented for allowance or allowed in the probate court, and that no suit was brought on it within two years after the executor had published his said notice; but the plaintiffs allege that said note was exhibited to the executor within two years after granting of his letters, and within two years after he published his said notice, and within two years after the note became due, and that suit was begun on the note withing three years after the note became due. 2nd. The plaintiffs allege that the note in question was exhibited to the executor within two years after letters were granted to him, and that this suit was begun within three years after the note became due. 3rd. That the plaintiffs and executor on February 8th, A. D. 1870, entered into a written agreement, by which the time of payment of said note was extendend to one year from March 14th, 1870, the executor agreeing to pay nine per cent. interest on the note during the extended time. It is also further alleged therein that a similar agreement in writing was made on the 28th day of February, 1871, whereby the time for the payment of said note was extended another year from March 14th, 1871, to March 14th, 1872 that both these agreements were filed in the St. Louis probate court, with the papers of the estate of said Isaac Walker; that under said agreements they were not bound to present said note for allowance within two years after notice, nor to sue on the same within three years from the publication of the executor's notice. A demurrer was filed to so much of the replication as set up the agreements to extend the time of payment of said note from March, 1870, to March, 1871, and to March, 1872. The cause was tried by the court and a judgment rendered for defendant, which was, by the general term, affirmed, from which plaintiffs appealed to the St. Louis Court of Appeals, where, upon a hearing, the judgment was reversed, and judgment rendered for plaintiffs for the balance due on their note, from which judgment defendant has appealed to this court.

On the trial, at defendant's instance, the court gave an instruction to the effect that, if the executor duly published in December, 1868...