Spaulding v. Suss

• Decision Date: 11 December 1877
• Citation: 4 Mo.App. 541
• Parties: HENRY T. SPAULDING ET AL., Appellants, v. SIMON SUSS, ADMINISTRATOR, Respondent.
• Court: Missouri Court of Appeals

4 Mo.App. 541

HENRY T. SPAULDING ET AL., Appellants,

v.SIMON SUSS, ADMINISTRATOR, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 11, 1877.

1.That a demand against an estate may be placed in the fifth class, the administrator must have plain and unmistakable notice thereof during the first year, which notice may be given by service of process upon the administrator, or by proving up the demand in legal form, or by serving notice upon the administrator in writing, according to the provisions of section 5, page 102, of Wagner's Statutes.

2.The provision of section 5 was enacted from motives of public policy, and an administrator has no right to waive its terms.

3.The doctrine of estoppel will not avail the claimant, though he was plainly misled by false and fraudulent statements of the administrator as to the terms of the law as to notice, inasmuch as he must prove actual notice within the first year, before the court can place the demand in the fifth class.

4.The time for proving claims begins to run from the date of publication of notice, and not from the date of letters of administration.

APPEAL from St. Louis Circuit Court.

Affirmed.

NATHANIEL MYERS, for appellants: Where the word “may” is used in a statute, its ordinary meaning will be presumed to be intended, unless it would manifestly defeat the object of the provision.-- Minor v. Mechanics' Bank of Alexandria,1 Pet. 64;New York & Erie R. Co. v. Coburn,6 How. Pr. 224;Centler v. Howard,9 Wis. 309;Wheeler v. City of Chicago,24 Ill. 105;Williamson v. Anthony,47 Mo. 300.A strict compliance with the provisions of the statute is not indispensable to the exhibition of a claim, and the administrator may waive such exhibition.-- Gaines v. Bush,16 Ark. 647;Borden v. Fowler,14 Ark. 471;Madden v. State Bank,13 Ark. 276;Grimes v. Booth,19 Ark. 224;Goodrich v. Conrad,24 Iowa, 256;Calanan v. McClure,47 Barb. 209;Gansevoort v. Nelson,6 Hill, 389;Johnson v. Corbett,11 Paige, 269;Halbitt v. Branch Bank,12 Ala. 195;Willis v. Miller,45 Ill. 35;Little v. Little,36 N. H. 224;Perry v. West's Admr.,40 Miss. 237;Harrison v. Jones,33 Ala. 258;Flinn v. Shackelford,42 Ala. 204;Buckett v. Janiesot, 2 Humph.567;Tibbetts v. Tilton,31 N. H. 273;Triggs v. Moore, 10 Texas, 197;Kyle v. Kyle,15 Ohio, 20;Leake v. Sunderland,25 Ark. 221;Kincheloe v. Gorman,29 Mo. 421.Where the administrator fraudulently keeps a creditor from exhibiting his claim within time, neither the administrator nor the estate can profit thereby.-- Clarkson v. Creely,40 Mo. 114;Turner v. Turner,44 Mo. 539;Marshall v. Buchman,35 Cal. 268;Smith v. Newby,13 Mo. 164.Estoppel in pais.-- Garnhart v. Finney,40 Mo. 462;Chouteau v. Goodin,39 Mo. 250;Newman v. Hook,37 Mo. 207;Tyler v. Teff,14 Mo. 482;McClellan v. Kennedy,8 Md. 230;Fitz v. Brown,9 Barb. 17;Preston v. Mann,25 Conn. 118;Chapman v. O'Brien,34 N. Y. 524;Horn v. Cole,51 N. H. 287, 324;Liverson v. Walker, 3 Texas, 93.

LEE & ADAMS, for respondent: The provisions of section 5, page 102, of Wagner's Statutes, in relation to the notice to be given the administrator, is mandatory, and cannot be waived.-- Miller v. Jannings,15 Mo. 265;Nelson v. Russell,15 Mo. 356;Bryan v. Mundy,14 Mo. 458;Dorsey v. Burns,5 Mo. 334;Richardson v. Harrison,36 Mo. 96;North v. Walker,2 Mo. App. 174;Smarr v. McMartin,35 Mo. 349.

BAKEWELL, J., delivered the opinion of the court.

The plaintiffs established a claim for $1,594.24 against the estate of Abraham Suss, in the Probate Court of St. Louis County; the demand was placed by the court in the sixth class.As the fifth class demands will not be paid in full, this classification makes the demand worthless, and an appeal was taken to the Circuit Court, where, on trial anew, the claim was again placed in the sixth class; and plaintiffs appeal to this court.

The only witness examined was Philip Walter.It appears from his testimony, and from the documentary evidence in the case, consisting to a great extent of correspondence between Walter and the administrator, that Abraham Suss died insolvent on January 31, 1875.Letters of administration were granted to his son, the defendant, Simon, on February 4th, and notice of the letters was duly published on February 11th.The year within which fifth class claims must be proved expired on February 11, 1876, and not on February 4, 1876, as counsel on either side inadvertently state.The law underwent a change in the revision of 1865, and the time for proving claims begins to run now from the date of publication of notice, and not from the date of letters, as was formerly the case.Wag.Stat. 86, sec. 19.

The deceased was supposed to be in prosperous circumstances, and it was to the astonishment of his son, his family, and his friends that he was found to have died insolvent.He left a widow and several daughters, and it was decided by friends and relatives in St. Louis, creditors of the estate, to buy up claims against the estate as cheaply as possible.Walter, the witness, was a salesman of a New York house, creditors of deceased; he was an old personal and business friend of deceased, and had been largely instrumental in obtaining credit for Suss in New York.He was himself a creditor.The administrator at once opened a correspondence with Walter, suggesting such an arrangement as a compromise of the claims.Walter called together the New York creditors, eight or ten firms, representing an indebtedness of about $20,000, and they placed their claims in his hands, with authority to sell, compromise, establish, or collect their claims, as he might see fit.Walter shortly afterwards came on to St. Louis, for the purpose of attending to the interests of the New York claimants.On his arrival a meeting was held, at which the administrator, Walter, and several friends and relatives of the deceased were present.Walter stated at this business meeting that the New York claims which he had come on to represent would be asserted against the estate; and negotiations were at once entered into between the friends of deceased and Walter, with the knowledge of the administrator, for the purchase of these claims in the interest of the estate.These negotiations were continued for several days.The administrator, meanwhile, who had been the confidential book-keeper of deceased, went through the books with Walter, and drew off for him a statement showing the condition of the business at the time of his father's death; and also drew off, in his own hand, a list of debts due by the deceased, giving the amounts and names; and Walter pointed out which claims he represented, amongst which was that of plaintiffs.

As to the correctness of the account of plaintiffs, and that it was due in all its particulars, there is no question, and there never was any question.It was for goods sold on November 21, 1874, and was entered, in all its items, by the administrator, at the date of the purchase, on the books of the deceased, and was pointed out as it stood on the books, by Walter, to the administrator, as a claim represented by him.

On the basis of the showing of the books of deceased, the friends of the family, with the assent of the administrator, offered twenty-five per cent for the claims represented by Walter, stating then, in the presence of the administrator, that the estate was insolvent, that the administrator had by law three years in which to pay demands, and that he would take the time allowed to settle up the estate.Walter declined to recommend the New York creditors to take less than thirty-seven and one-half per cent; but it was agreed that he should take the statements already furnished by the administrator and submit them to the creditors in New York, and see what could best be done.Walter then asked what had to be done to establish the claims against the estate if the negotiation fell through, and the administrator replied, “All you need do is to go before a proper officer and have the claims sworn to and sent to me, or to any one else, for allowance by the court.”Walter then returned to New York, and a correspondence ensued in regard to the matter.On April 13, 1875, the administrator writes: “I have shown Mr. Cook and the Messrs. Meyer, as well as all the balance of my friends, your letter; and they say that, much as they would like to see the matter of these Eastern claims settled, still they do not feel justified in involving themselves to the extent of a settlement on the basis proposed by Mr. Whittemore, namely, forty per cent in three and six months, as they do not think I will be able to pay that sum, even after my term of administration expires.They evidently are not in a hurry to have the matter closed up, because they say that, as I am not compelled to make a final settlement for three years, there is no sense nor reason in paying within six months more than the estate will realize altogether.”On October 9th the administrator writes: “My brother-in-law, Mr. Meyer, of the firm of Meyer, Bannerman & Co., has told me that in order to assist me, and also to enable Eastern creditors to get a satisfactory settlement before the time of a final settlement of the estate, he would be willing to buy up all claims against the estate, provided he could get them at reasonable rates; he would not name any specific percentage and said that if any of the creditors, or all of them, would correspond with him on the subject, he would answer them.This is all I could get out of him.My uncle will also assist me to the full extent of his abilities.”On November 27, Walter writes to Suss, the administrator, asking why he has no answer to a former letter offering to sell for the New York creditors at thirty-seven and one-half per cent, at three, six, and nine months, and proceeds: “Now the creditors press me because the claims have to be filed, and they ordered me to write to a lawyer (I proposed Meyers) for instructions as to...