Stevens v. Stevens

• Decision Date: 18 February 1903
• Citation: 172 Mo. 28,72 S.W. 542
• Parties: STEVENS et al. v. STEVENS et al.
• Court: Missouri Supreme Court

72 S.W. 542

172 Mo. 28

STEVENS et al. v. STEVENS et al.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

DECEDENTS' ESTATES—PARTITION—CONTINGENT CLAIMS.

1. Nine notes given by an intestate to his father and mother were payable on the 1st day

of January of each year for nine years, and each note provided that it was executed on the sole condition that the death of the payees should be equivalent to payment. Seven of the notes were unpaid at the time of intestate's death, and the father was then about 80 years of age, and the mother but little younger. Held, in an action for partition of certain realty covered by a deed of trust securing the notes, it was error to charge the land with the present value of the notes, without regard to the contingency expressed therein; the proper practice being to reserve a sufficient amount of the proceeds of the sale of the mortgaged land to meet the notes as they fell due, distribute the balance, and provide that if the payees die the remainder of the fund should be also distributed.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action by Eli Stevens and others against Sarah A. Stevens and others. From a judgment for plaintiffs, defendant Sarah A. Stevens appeals. Reversed.

This is an action for the partition of the N. W. ¼ of section 2, township 52, range 7, in Audrain county. Alexander E. Stevens died in February, 1899, without issue, intestate, owning this land, and leaving his wife, the defendant Sarah A. Stevens, and his father and mother and three brothers, the plaintiffs herein, surviving him as his heirs. His widow elected to take a child's share. On the 24th of December, 1896, said Alexander E. Stevens and Sarah A., his wife, executed a deed of trust upon the S. ½ of the said property to secure the payment of nine promissory notes, for $200 each, payable on the 1st day of January of each year from 1898 to 1906, inclusive, payable to his father and mother, Eli and Lucinda. The notes each contained this provision: "This note is made and executed to the payees herein on the sole condition that the death of the payees shall act as the equivalent of a payment of this note and satisfy the same in full." The deed of trust contained an equivalent provision. The two notes maturing January 1, 1898 and 1899, were paid before Alexander Stevens' death. The personal estate was sufficient to pay all the debts, except the seven notes aforesaid. The trial court decreed partition, ascertained the present value of the seven notes to be $1,184.65, adjudged the land incapable of partition in kind, ordered the land sold, and directed the proceeds of the portion subject to the deed of trust to be applied to the payment of the ascertained value of the seven notes, and directed the balance, with the proceeds of the sale of the portion not subject to the deed of trust, to be divided as follows: One half to the widow, the defendant, and the other half to be divided between the mother, father, and three brothers of the deceased in equal shares. The court, however, concluded its judgment as follows: "The court not being satisfied from the evidence that the personal property belonging to the estate of A. E. Stevens is more than sufficient to pay all claims and demands against the same, it is ordered that distribution be suspended until said estate shall have been finally settled, and all claims against the same are fully discharged." The father was about 80 years old at the time of the trial, and the mother a year or two younger. The father and mother, the beneficiaries in the deed of trust, are parties plaintiff herein, and the trustee in the deed of trust is made a party defendant with the widow of the deceased. The widow appealed from the judgment of the circuit court.

W. W. Fry, for appellant. P. H. Cullen, for respondents.

MARSHALL, J. (after stating the facts).

1. The sole question arising on this record for adjudication is as to the ruling of the trial court in ascertaining the then present value of the seven notes not then due, and ordering that value to be presently paid out of the proceeds of the sale of the portion of the property covered by the mortgage which secured those notes. The plaintiffs, in supporting this ruling, rely chiefly upon the case of Schmieding v. Doellner, 13 Mo. App. 228. That was a case where a husband bound himself, by a bond secured by a deed of trust, to pay his wife a certain annuity during her life. The husband died, and the wife asked to have her contingent claim allowed against the estate of her deceased husband. The court ascertained the present value of the annuity, and allowed it against his estate. The case was controlled by sections 205 and 206 of the Statutes of 1879, which provided as follows:

"Sec. 205. When the demand or set-off is not due at the time of the trial, the court may adjust the same, and a judgment may be rendered thereon for the amount, according to the finding of the jury or judgment of the court, or, at the option of the parties, by rebating therefrom, at the rate of six per cent. per annum, from the time of trial until due.

"Sec. 206. In case the parties do not agree to rebate the demand or set-off, as provided for in the preceding section, no execution shall issue upon any such judgment until the demand or set-off upon which the judgment was rendered shall become due and payable."

It will be noted, however, that that case is unlike the case at bar, in that it was presented as a demand against the personal estate of the obligor, while this is a suit for partition among the heirs of the obligor. Of course, the claim against the estate of a deceased person must be presented within the time limited by statute, or it will be barred. Hence, if the claim is not due, the probate court must adjust it, as the statute now is (Rev. St. 1899, § 204), or, as the statute of 1879 was, the court was required to adjust it, or, at the option of the parties, rebate it at the rate of 6 per cent. per annum, or, if the parties refused to accept the rebate, the court allowed the claim, but stayed the execution until the debt became due. Woerner's American Law of Administration (2d Ed.) vol. 2, sec. 393, speaking of allowing claims that have not matured against an estate, says: "In accordance with the policy of speedy settlements of the estates of deceased persons, aimed at in most of the statutory provisions of the American states, most of them enable debts payable, according to the contract entered into by the deceased, at a future time, to be presented to the administrator and adjusted before their maturity." The author points out that in 33 states statutory provisions to this end have been adopted, and refers to section 203, Rev. St. 1889 (being section 204, Rev. St. 1899), as the statute in this state on the subject. The author further says: "To be proved and allowed as subsisting claims, they must constitute absolute debts running to certain maturity, such as promissory notes and the like. In Missouri unaccrued rent under a covenant to pay rent is held to be a demand entitled to be proved against the lessee's estate as an unmatured claim; but elsewhere this is denied, unaccrued rent being held to be neither debitum nor solvendum—never payable if the lessee should be evicted before the day on which it is payable. Reason and the trend of authorities seem clearly to support this view." Section 393. The case of Traylor v. Cabanne, 8 Mo. App. 131, is cited as the Missouri case holding that unaccrued rent could be proved against an estate. That case does so hold, but there was no extended discussion or examination of the question indulged in. The statute was simply referred to as covering the case. The question arose again in Kavanaugh v. Shaughnessy, 41 Mo. App. 657, and the St. Louis Court of Appeals (which court had also decided the case of Traylor v. Cabanne), after referring to sections 205, 206, Rev. St. 1879, said: "The defendant claims that the word `demand,' in those sections, does not and cannot include rent not due and unearned, as rent is in no sense a debt before the day on which it is covenanted to be paid. As Gray, C. J., aptly says in Deane v. Caldwell, 127 Mass. 242, `It is neither debitum nor solvendum; for, if the lessee is evicted before that day, it never becomes payable. * * * It is not an existing demand, the cause of action on which depends upon a contingency, but the very existence of the demand depends upon a contingency.' If the case were one of first impression, we would not hesitate to say that this objection is well taken. It seems to us that the statute, when speaking of demands, has reference to cases of absolute liability, which, although not due when presented, are running to a certain maturity, and not to cases where the existence of the future liability is contingent and uncertain. But this court at an early day, in Traylor v. Cabanne, 8 Mo. App. 131, 135, took a different view of the law; and it is fairly presumable that courts exercising probate jurisdiction in this state have since that time followed that ruling, and it should not be disturbed unless such ruling not only is logically incorrect, but also leads to unjust results. Now, while we incline to the opinion that the interpretation of the word `demand' contended for by the defendant is the correct one, yet it is of no practical importance which one of the two...