Pfeiffer v. Suss

• Decision Date: 31 October 1880
• Citation: 73 Mo. 245
• Parties: PFEIFFER v. SUSS, Administrator, Appellant.
• Court: Missouri Supreme Court

73 Mo. 245

PFEIFFER

v.SUSS, Administrator, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from St. Louis Court of Appeals.

REVERSED.

Lee & Chandler for appellant.

Walther did no other act by way of exhibiting plaintiff's claim within the first year than to hand to the administrator an imperfect statement of plaintiff's “commission” account against “A. Suss & Co.,” and a copy of another account, which is called the “deposit” account, which was also made out against “A. Suss & Co.;” and these accounts were so handed to the administrator, simply and solely for the purpose of comparing them with the books of A. Suss & Co., to ascertain whether the books and these accounts harmonized, and the commission account when handed to the administrator was not carried out as to price or quantity; moreover, after these accounts were checked off by the books of the firm, Walther put them in his pocket and returned to New York. The “copy of the account” handed to the administrator, was not even made out against the estate of A. Suss, deceased, and under the circumstances surrounding its delivery, did not give to the administrator any such notice as the statute requires. It provides that the administrator shall be served with a “notice in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which the claim is founded,” and requires that distinct and definite information in writing shall be given to him that the party presenting it has a claim against the estate, setting forth “its nature, and the amount thereof, together with a copy of the account.” There is no evidence in this record showing or tending to show any compliance with the requirements of this statute. The evidence plainly shows that neither Walther nor the administrator had any thought that plaintiffs were taking any steps toward establishing a classification of this demand against this estate. Wag. Stat., p. 102, § 1, par. 5; Ib., § 5; Ib., § 7; Miller v. Janney, 15 Mo. 265; Bryan v. Mundy, 14 Mo. 458; Dorsey v. Burns, 5 Mo. 334; Richardson v. Harrison, 36 Mo. 96; Burton v. Rutherford, 49 Mo. 258.

Nathaniel Myers for respondents.

1. There was a statutory exhibition of plaintiffs' claim during the first year. It was set forth in accounts, embodying all the items; these accounts were handed to the administrator as a statement of plaintiffs' claim, and he was also superfluously told the account would be asserted against the estate. All this was within a few days after the administration began. It is, however, suggested by defendant's counsel that the sole purpose of Walther in thus exhibiting plaintiffs' claim was to compare same with defendant's books. The defendant himself understood the exhibition differently, because he reported the claim as exhibited in the first year when he made his first annual settlement. Moreover, were there anything in this suggestion it was for the trial court to determine the effect of the testimony.

2. It was not the intention of the 5th section of the statute, (1 Wag. Stat., 102, § 5,) to make the method there indicated the exclusive mode of ““legally exhibiting” a claim, and a strict and literal compliance with every detail of its requirements is not indispensable. The word “may” here is not synonymous with “must,” but is used in its ordinary signification. Minor v. Bank, 1 Pet. 64; N. Y. & E. R. R. Co. v. Coburn, 6 How. Pr. 224; Cutler v. Howard, 9 Wis. 309; Wheeler v. Chicago, 24 Ill. 105. This section is directory only. St. Louis Co. Ct. v. Sparks, 10 Mo. 117. Similar statutes in other states have received this construction. Grimes v. Bush, 16 Ark. 647; Borden v. Fowler, 14 Ark. 471; Maddin v. State Bank, 13 Ark. 276; Grimes v. Booth, 19 Ark. 224; Goodrich v. Conrad, 24 Iowa 256; Wile v. Wright, 32 Iowa 451; Wells v. Miller, 45 Ill. 35; Calanan v. McClure, 47 Barb. 209; Gansevoort v. Nelson, 6 Hill 389; Johnson v. Corbett, 11 Paige 269; Perry v. West, 40 Miss. 237; Hallett v. Branch Bank, 12 Ala. 195; Harrison v. Jones, 33 Ala. 258; Frazier v. Paytor, 36 Ala. 694; Flinn v. Shackleford, 42 Ala. 204; Pollard v. Scears, 28 Ala. 487; Buckett v. Janiesot, 2 Humph. (Tenn.) 567; Ellis v. Carlisle, 8 Sm. & M. (Miss.) 553; Little v. Little, 36 N. H. 224; Tebbetts v. Tilton, 31 N. H. 273; Trigg v. Moore, 10 Texas 197; Kyle v. Kyle, 15 Ohio St. 20; Fillyau v. Laverty, 3 Fla. 106; Ellison v. Allen, 8 Fla. 206. It would appear to us that in Missouri, where the powers of the administrator in this regard are absolutely unimportant and trivial, where really nothing follows upon the particular mode of exhibiting the demand, it is rather straining a point to ignore settled rules of construction only in order to defeat a just claim! The sole object of the exhibition to the administrator is to give him information. The sole object of the information is to enable the administrator to reserve for the claims of whose existence he is informed, sufficient to pay a dividend on them in case they are ultimately allowed by the court.

3. If an administrator fraudulently keeps a creditor from exhibiting his claim within a year, and misleads him into the belief that he will lose nothing by waiting two years before exhibiting his claim, and that he has the latter period instead of one year in which to exhibit it--that he need do nothing further beyond what he has already done, except to get the claim allowed by the court any time within two years, such a fraud is like all others, both in law and equity, unavailing; and neither administrator, creditor nor heir, can profit by an advantage thus fraudulently obtained. Simon Suss did entertain that fraudulent purpose, and did misrepresent the facts and delude and lull Walther, and through him all the non-resident creditors, into belief that he had full personal knowledge of their claims, and, therefore, did not desire any further formal exhibition; that they had done all that was necessary except to have the court pass on the claim, and that they would lose nothing by waiting until the second year before presenting it to the court.

4. Even if the court should not be satisfied of the active fraud, the administrator is estopped from setting up that the claims were not properly exhibited to him within one year. Garnhart v. Finney, 40 Mo. 462; Chouteau v. Goddin, 39 Mo. 250; Newman v. Hook, 37 Mo. 207; Taylor v. Zepp, 14 Mo. 482; Bigelow on Estoppel, 437, 458; Ex Parte Rockford, etc., R. R. Co., 1 Lowell 345; Gregg v. Von Phul, 1 Wall. 274; Ridgway v. Morrison, 28 Ind. 201; McClellan v. Kennedy, 8 Md. 230; Swenson v. Walker, 3 Texas 93; Rogers v. Johnson, 70 Pa. St. 224; Preston v. Mann, 25 Conn. 118; Bigelow on Estoppel, (2 Ed.) 442; Camp v. Moseley, 2 Fla. 171; Sample v. Lipscomb, 18 Ga. 687; Jennison v. Hapgood, 10 Pick. 77; Thomas v. Brooks, 6 Texas 369; Horn v. Cole, 51 N. H. 287; Stevens v. Dennett, 51 N. H. 324.

The administrator waived both expressly and impliedly any further exhibition than such as was made. He had power to do this. North v. Walker, 66 Mo. 453; s. c., 2 Mo. App. 174; Horwitz v. Mut. Ins. Co., 40 Mo. 557; Grimes v. Bush, 16 Ark. 647; Borden v. Fowler, 14 Ark. 471; Calanan v. McClure, 47 Barb. 206; Gansevoort v. Nelson, 6 Hill 389; Leake v. Sutherland, 25 Ark. 221; Kincheloe v. Gorman, 29 Mo. 421; Kyle v. Kyle, 15 Ohio St. 20.

6. There was certainly a statutory exhibition of the cash claim of $1,767.67, and it was so understood by the administrator; for, in his first annual report to the probate court, he reported that claim as having been in fact exhibited to him in the first year by the plaintiffs.

HENRY, J.

This cause originated in the probate court of St. Louis county, on the presentation by plaintiffs of a claim for allowance against the estate of Alex. Suss, deceased, which was allowed and placed in the fifth class of demands. On appeal successively to the circuit court and court of appeals, the judgment was affirmed, and the administrator, defendant, has appealed from the judgment to this court. The only question to be determined is, whether there was error in placing the demand in the fifth class.

1. ADMINISTRATION: exhibition of demands: waiver: fraud.

Letters of administration were granted to Simon Suss on the 2nd day of February, 1875, and notice thereof was duly given on the next day. Formal notice of the intention to exhibit the demand for allowance in the probate court was not given to defendant until the 26th day of May, 1876, more than one year after the date of publication of said notice of administration, and if this were all, no doubt could be entertained that the allowance was improperly classed. Plaintiffs, however, rely upon an exhibition of said demand to the administrator, which, it is alleged, occurred within the first year of the administration, and is evidenced by the following facts:

Philip Walther, a member of the plaintiff firm, came to St. Louis, representing all the eastern creditors of the intestate, with a view to compromising their claims, it being understood by the eastern creditors that the estate was insolvent. He had the account of his firm against the estate, except the prices at which the goods were sold, and together with the administrator examined the books of the deceased to ascertain the prices, which were then placed upon the account. He made a proposition of compromise to the administrator, which the latter rejected, and he then left St. Louis with the understanding, as he testified, “that he was to see the eastern creditors, get their views and make report.” The only reference to the allowance of the claim against the estate made in any of the interviews between him and the administrator in St. Louis, was the following: “I, Walther, asked Suss, the administrator, what I had to do to establish those claims in case no settlement was made? He told me all I would have to do was to have the creditors go before a notary and make affidavit to the claims, and send them to him or any...