Robbins v. Robbins' Estate

• Decision Date: 24 June 1913
• Parties: ROBBINS v. ROBBINS' ESTATE.
• Court: Missouri Court of Appeals

158 S.W. 400

ROBBINS v. ROBBINS' ESTATE.

St. Louis Court of Appeals. Missouri.

June 24, 1913.

Rehearing Denied July 5, 1913.

1. EXECUTORS AND ADMINISTRATORS (§ 202½) — CLAIMS AGAINST ESTATE — CONTRACT OF DECEDENT.

An instrument by which decedent promises to pay to the order of "R. or family" a certain amount, though it may not be good as a promissory note, because of the payee being in the alternative, as a special contract, for a sufficient consideration, is an enforceable claim of R. against decedent's estate.

2. WILLS (§ 89) — CONTRACT TO PAY AFTER DEATH — TESTAMENTARY CHARACTER.

That a contract, for value received, is to pay "on demand after death," does not make it testamentary or unenforceable.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Suit by E. M. Robbins against Estate of Harriet Robbins, deceased. Judgment for plaintiff. Defendant appeals. Affirmed.

Wm. K. Koerner, Chilton Atkinson, and Lloyd L. Adams, all of St. Louis, for appellant. Pierce B. Barnard and Henry Higginbotham, both of St. Louis, for respondent.

NORTONI, J.

This suit originated in the probate court through the filing of a demand for allowance against the estate of a deceased person. It found its way to the circuit court on appeal, where the finding and judgment were for plaintiff. From this judgment the appeal here is prosecuted.

The demand so filed against the estate and in judgment is as follows: "100.00. St. Louis, Aug. 9th, 1903. On demand after death I promise to pay to the order of E. M. Robbins or family one hundred dollars, payable at ____. Value received in board from time to time from 1892 to time of death, negotiable and payable without defalcation or discount with interest at the rate of 7 per cent. per annum, from ____. Harriet Robbins. Witness: S. H. Ferris. Indorsements."

It appears that plaintiff, E. M. Robbins, to whom the promise of payment appears by the above instrument to have been made, resided in the state of Illinois at the time of its execution. It appears, too, that the decedent, Harriet Robbins, executed and delivered to E. M. Robbins the instrument in the state of Illinois whereby she promised to pay him $100 on demand after her death. Because the contract appears to have been executed and delivered in the state of Illinois, a decision of the Supreme Court of that state touching promissory notes made payable in the alternative was introduced in evidence. It is insisted that as the promise in the instant case is to pay to the order of "E. M. Robbins or family" no recovery may be allowed thereon. There can be no doubt that such is the law of Illinois when the instrument in suit is relied upon as a promissory note. It is said promissory notes must be payable to a certain person either specified on the face of the note or one who may be certainly identified by proof aliunde the note not inconsistent with the face of the note as the assignee or bearer. See Musselman v. Oakes, 19 Ill. 81, 68 Am. Dec. 583. In other words, the degree of certainty required by the law merchant in a promissory note affords a rule which inhibits the designation of the payee therein in the alternative. See 7 Cyc. 568. But though such be true, it is certainly competent for the parties to contract between themselves for the payment of money in the manner here employed. It does not appear that the instrument above copied and which itself was filed as the foundation of the suit in the probate court is proceeded upon or asserted as a promissory note. The peculiar attributes of a negotiable promissory note are neither invoked nor involved in the case here, for it proceeds between the original parties to the instrument. It does not appear that the contract, whatever it may be, has been negotiated, but, on the contrary, E. M. Robbins, one of the payees therein, filed it for allowance in the probate court against the estate of Harriet Robbins, the maker, who executed and delivered it to him several years prior to her death. Our statute (section 206, R. S. 1909) authorizes the probate court to hear and determine all demands filed against the estate of a deceased person in a summary way without the form of pleadings. From this it appears that it is not necessary to declare upon the instrument as by filing a petition on a promissory note, and, indeed, no such course was pursued. E. M. Robbins, the payee, first named therein, merely filed the instrument in the probate court for allowance against the estate and gave the notice required by statute with respect to the matter. As the statute referred to expressly dispenses with formal pleadings in the probate court, it is clear that, when the demand relied upon is one executed in writing by the decedent as...