State ex rel. Morrison's Adm'r v. St. Gemme's Adm'r

• Decision Date: 31 October 1856
• Citation: State ex rel. Morrison's Adm'r v. St. Gemme's Adm'r, 23 Mo. 344 (Mo. 1856)
• Parties: THE STATE, TO THE USE OF MORRISON'S ADMINISTRATOR, Appellant, v. ST. GEMME'S ADMINISTRATOR, Respondent.
• Court: Missouri Supreme Court

23 Mo. 344

THE STATE, TO THE USE OF MORRISON'S ADMINISTRATOR, Appellant,

v.ST. GEMME'S ADMINISTRATOR, Respondent.

Supreme Court of Missouri.

October Term, 1856.

1. No action on an administrator's bond will lie in favor of one claiming to be a creditor of the intestate's estate, until his demand against the estate has been established in some one of the ways prescribed by law; consequently the statute of limitations will not run in favor of the administrator in such a case until such demand is so established.

Appeal from Ste. Genevieve Circuit Court.

The facts sufficiently appear in the opinion of the court.

Young, for appellant.

Frissell, for respondent.

LEONARD, Judge, delivered the opinion of the court.

The plaintiff commenced his suit originally on the 26th August, 1839, and, having suffered a non-suit, brought the present action within the year, so that it may be considered, in reference to the statute of limitations, as commenced on that day. The beneficiary in it is Zeigler, administrator of Morrison, who, in his lifetime, recovered a judgment in the Ste. Genevieve Circuit Court, in November, 1829, against Madame St. Gemme, as administratrix of her late husband; and this judgment was afterwards, in April, 1830, exhibited in the County Court of Ste. Genevieve county, and there allowed and placed in its proper class for payment out of the assets of the estate. The present suit is against Lecompte, as administrator of Madame St. Gemme, upon her administration bond to the governor; and the petition, after suggesting the recovery and allowance of the debt against the estate, and that certain slaves of the estate came to her hands to be administered, which she had appropriated to her own use and died possessed of, charges substantially, as the breach of duty complained of, that she omitted to pay the debts of the deceased, as far as the assets in her hands extended. Upon a trial by the court, the facts found are, that Madame St. Gemme, on the 2d day of September, 1828, applied to the Ste. Genevieve County Court for leave to retain certain slaves out of the inventory of her husband's estate (where she had placed them), on the ground that they belonged to her under a marriage contract with her late husband, and that the court made the order accordingly, and that she ever afterwards, down to her death, openly claimed the ownership of them; and thereupon the court decided that the plaintiffs' cause of action accrued at the time of this open claim of ownership, and that ten years having elapsed afterwards and before the commencement of the suit, it was bound by the statute of limitations, and the propriety of this decision is the question here for our determination.

Although an administrator's bond is given to the state or the governor, and must therefore be sued upon in the name of the formal party, it is substantially a bond to all who are legally interested in the proper discharge of the official duties it is intended to secure; and a suit upon it, for the use of any one, is substantially the suit of the beneficiary, and so treated by the courts. Hence, in the State, to the use of Menard, against Pratte, (8 Mo. 286,) upon an administrator's bond, it was holden, that the plaintiff's cause of action was bound by the lapse of ten years, notwithstanding the principle that the statute does not run against the State, on the...