Pearce v. Calhoun

• Decision Date: 28 February 1875
• Citation: 59 Mo. 271
• Parties: DAVID PEARCE, Respondent, v. JOHN C. CALHOUN, Appellant.
• Court: Missouri Supreme Court

59 Mo. 271

DAVID PEARCE, Respondent,

v.JOHN C. CALHOUN, Appellant.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Linn Circuit Court.

A. W. Mullins, for Appellant, cited 4 Kent. Com., 419, 422 and authorities there cited; Metcalf vs. Smith's Heirs, 40 Mo., 576; Wagn. Stat., 102, §§ 2, 4, 6.

WAGNER, Judge, delivered the opinion of the court.

In November, 1870, the plaintiff commenced his action in the Circuit Court against several defendants who were the heirs of William Calhoun, deceased, to recover judgment on two promissory notes alleged to have been executed by the said William in his life-time.

The petition alleged that the said William Calhoun died in the year 1864, and left surviving him the defendants in this suit as his children and only heirs at law, and that he owned certain real estate which descended to them; that letters of administration were duly granted on his estate; and that the estate was fully administered and the assets distributed among the heirs.

The answer, for a defense, set up that on the 2nd day of January, 1865, letters of administration were duly granted upon the said estate by the Probate Court, and that at the time plaintiff commenced his action the estate was not fully administered, and that the administration thereof was still pending; that three years and more had elapsed after the letters of administration were granted, and notice thereof duly published, as required by law, before the action was commenced; and that under the act of the legislature, entitled “an act to establish courts of probate in the counties of Ralls,” etc., approved March 19, 1866, the Probate Court had, when the action was brought, exclusive original jurisdiction of the matter. The answer also alleged that there were ample assets in the hands of the administrator to pay off the amount of plaintiff's claim.

There was no replication filed to this answer, and its truth was therefore admitted; but, aside from this, the proof fully sustained its averments.

At the hearing, the plaintiff dismissed as to all the parties except the defendant, who took this appeal, and the court rendered judgment against him only, for the full amount of the claim.

This judgment was evidently wrong in charging the defendant with the full amount, for the rule is, that where heirs are proceeded against on account of assets which they have received from their ancestor, they are to be charged only with their pro rata share, and one cannot be made liable for the whole. (Metcalf vs. Smith's heirs, 40 Mo., 576.)

The record shows that there were assets in abundance in the administrator's hands to have paid off and satisfied the plaintiff's demand, for there was nearly five times the amount of the claim for distribution upon final settlement, which was made after the institution of this suit.

No creditor can be permitted to proceed against the real estate in the possession of the heirs, till he has first exhausted his remedy against the personalty, where it is shown that there were assets in the hands of the administrator. In all personal claims the proceeding must, in the first instance, be against the administrator, either in the Probate or Circuit Court, as directed by statute.

At the time this suit was instituted, the Circuit Court had no jurisdiction of the cause, for there was a special sta...