Ryans v. Boogher

• Decision Date: 30 June 1902
• Citation: 69 S.W. 1048,169 Mo. 673
• Parties: RYANS v. BOOGHER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Supreme Court

69 S.W. 1048

169 Mo. 673

RYANS v. BOOGHER et al.¹

Supreme Court of Missouri, Division No. 2.

June 30, 1902.

DECEDENT'S ESTATES — PRESENTING DEMANDS TO PROBATE COURT — FILING JUDGMENT — LIMITATIONS — LACHES.

1. The repeal, before the statute had run against plaintiff's demand, of the quoted words in Rev. St. 1889, § 184, providing that all demands against a decedent's estate not exhibited "and presented to the [probate] court" in two years shall be forever barred (the remaining words constituting Rev. St. 1899, § 185), left his demand, presented in due time by action against the executors in the circuit court, as allowed by section 187, and there reduced to judgment, subject to be barred only by the general statutes governing the limitation as to judgments.

2. Though a judgment against executors is required by Rev. St. 1899, § 208, to be filed in the probate court and there classified, — section 3177 prohibiting an execution against executors, — yet an appeal by executors from the judgment, operating as a supersedeas, having been taken, so that the probate court would not have had jurisdiction to classify it, failure to file it in the probate court till after affirmance on appeal is not laches.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Proceedings between Wyatt Ryans and Jesse L. Boogher and another, executors of Charles H. Bradford, deceased. From a judgment affirming a judgment of the probate court adverse to the executors, they appeal. Affirmed.

R. M. Nichols, for appellants. W. B. & Ford Thompson, for respondent.

GANTT, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis affirming a judgment of the probate court of said city refusing to permit the appellants, who are the executors of the last will and testament of Charles H. Bradford, deceased, to make a final settlement of said estate pending their appeal from a judgment of the circuit court of said city in favor of plaintiff, Wyatt Ryans, against said estate for $7,605.73. The facts, briefly, are these: Dr. Charles H. Bradford, a resident of St. Louis, died April 20, 1898, leaving a last will, which was probated May 26, 1898, by which will Jesse L. Boogher and Howard A. Blossom were appointed executors. On May 26, 1898, letters testamentary with the will annexed were duly issued to Boogher and Blossom, who qualified without bond. Notice of their administration was made and proof filed June 22, 1898. Subsequently a contest of said will was commenced, and evidence thereof filed in the probate court on July 6, 1898, and on the same day their letters were revoked, and Richard Hospes was appointed administrator pendente lite. The executors thereupon made a turn-over settlement, and passed the estate to the administrator pendente lite. On November 16, 1898, the plaintiff, Wyatt Ryans, commenced his action against said estate in the circuit court of St. Louis for services rendered Dr. Bradford in his lifetime. The summons was duly served on Hospes November 19, 1898. In due course of law, Ryans obtained judgment against the said estate for $7,605.73, on March 11, 1899. On June 2, 1899, the administrator pendente lite obtained an appeal from said judgment to this court, which judgment was affirmed in this court March 11, 1902. 67 S. W. 285. Pending this appeal in this court an appeal was also prosecuted from a judgment in the will-contest case to this court, but the said appeal was dismissed November 12, 1900. The executors, prior to the dismissal of the will-contest appeal, and on November 3, 1900, published notice that they would make a final settlement of said estate. Afterwards, on December 21, 1900, the letters of the administrator pendente lite were revoked, and the said executors again took charge of said estate. On January 19, 1901, the said executors, pursuant to their notice, filed their exhibits for their final settlement, and plaintiff, Ryans, filed his exceptions thereto, calling the attention of the probate court to the fact that the appeal of said estate from his judgment against said estate was still pending and undetermined in the supreme court, and the said settlement was continued by the probate court until its March term, 1901. On January 29, 1901, the plaintiff filed his motion in the supreme court to make said executors parties defendant in the said appeal, which motion was duly sustained by the court in banc, and process was duly served on each of them, and thereafter they filed their briefs and abstracts in this court, and the cause stood against them and was affirmed against them as executors on March 11, 1902. On March 13, 1901, the final settlement was duly heard and considered in the probate court, and on July 10, 1901, the probate court sustained said exceptions of plaintiff, refused to permit the executors to be discharged, and required them to retain $15,000 in their hands to await the final judgment of this court on said appeal from plaintiff's judgment. From that judgment of the probate court the executors appealed to the circuit court of St. Louis, and on January 6, 1902, the circuit court affirmed the judgment of the probate court, and on January 29, 1902, the executors appealed from the circuit court to this court.

The one question for decision upon the foregoing facts is whether the estate of Dr. Charles H. Bradford was forever discharged from the judgment rendered in the circuit court of the city of St. Louis, and affirmed in this court, because the same had not been classified in the probate court of the city of St. Louis within the two years after letters testamentary were granted to his executors, to wit, within two years from May 26, 1898. The contention of the executors is that said judgment presented no obstacle whatever to their making their final settlement and receiving their discharge, as it was barred by the special statute of limitations found in sections 185, 189, 191, 208, 3177, Rev. St. 1899. Section 185 provides that "all demands not thus exhibited in two years shall be forever barred, saving to infants, persons of unsound mind, or imprisoned and married women, two years after the removal of their disability, and said two years shall begin to run from the date of the letters where notice shall be published within thirty days, as provided in section 86, and in all other cases said two years shall begin to run from the date of publication of the notice." Section 187 provides that "all actions commenced against such executor or administrator, after the death of the deceased, shall be considered demands legally exhibited against such estate from the time of serving the original process on such executor or administrator." Section 190 requires "every executor and administrator to keep a list of all demands thus exhibited, classing them and make return thereof to the court at each settlement." Section 191 provides "that any person having a demand against an estate may establish the same by the judgment or decree of some court of record in the ordinary course of proceeding and exhibit a copy of such judgment or decree, and shall also exhibit copies of all judgments or decrees rendered in the lifetime...