Stirling v. Winter's Ex'r

• Decision Date: 31 October 1883
• Citation: 80 Mo. 141
• Parties: STIRLING, Appellant, v. WINTER'S EXECUTOR.
• Court: Missouri Supreme Court

80 Mo. 141

STIRLING, Appellant,

v.WINTER'S EXECUTOR.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Louis Court of Appeals.

REVERSED.

Fisher & Rowell and Gilliam & Ferriss for appellant.

Given Campbell for respondent.

HENRY, J.

This cause originated in the Probate court of the city of St. Louis, in which plaintiff prosecuted for allowance against said estate, of which Theodore Hunt is administrator, a promissory note, of which the following is a copy:

“$6,566.45.

BAYOU SARA, LA., June 1st, 1871.

One year after date we jointly and severally promise to pay to the order of Henry Stirling, minor, at whichsoever place he may designate, $6,566.45, for value received, with interest at the rate of eight per cent per annum from date until paid.

SARAH M. WINTER,

Administratrix and Tutrix to the minor children of W. D. Winter.

SAMUEL WINTER, Co-heir.”

The claim was allowed against the estate of Mrs. Winter by the probate court, and on appeal to the circuit court, was again allowed, but, on appeal to the court of appeals, that judgment was reversed, and the plaintiff has prosecuted his appeal to this court, and the only question of which we deem it necessary to take more than a passing notice, is whether, by signing the note in suit, as administratrix and tutrix, Mrs. Winter bound herself personally for its payment.

When the note was executed she was the administratrix of her husband's estate, and tutrix to his minor children. After the death of her husband, and soon after this note was made, she removed to the city of St. Louis, where she died, leaving an estate, estimated at about $60,000, mainly the proceeds of insurance upon her husband's life. Mr. Winter was the agent of Mrs. Mary C. Stirling, a widow, the mother of his wife and of the plaintiff, and after his death, was found to be indebted to her on open account in the sum for which the note in suit was given. The settlement on which that note was based, was made by his son, Samuel Winter, who also signed the note as coheir. At the request of Mrs. Stirling, the note was made payable to her son, the plaintiff, then a minor, to whom she was then indebted in that amount. The note was delivered to her, and when plaintiff arrived at age, was delivered by her to him.

The court of appeals, in the opinion delivered, very ably and elaborately reviewed the decisions of the supreme court of Louisiana, by the law of which state the question is to be determined, and only after a very careful examination of the same authorities relied upon by the court of appeals, have we reached a conclusion different from that arrived at by that court.

In Flower v. Swift, 5 Mart. (N. S.) 529; s. c., 8 Mart (N. S.) 449; Russell v. Cash, 2 La. 185; Hestres v. Petrovic, 1 Rob. (La.) 119; Winthrop v. Jarvis, 8 La. An. 434; Beatty v. Tete, 9 La. An. 130, and Livingston v. Gaussen, 21 La. An. 286, this general doctrine is distinctly recognized: “That an executor, or other administrator, by making or indorsing a note in that capacity, cannot thereby bind the estate, but will make himself personally responsible for the amount; that he cannot, in any transaction, in which he pretends to act as such, create any liability on the estate or change the nature of its obligations, or increase its responsibility in regard to its outstanding debts, and if he do so, he will be personally bound.”

By the code of Louisiana, an executor or administrator is authorized to examine a claim against the estate, and, if he approve it, it is presented to the probate judge for classation, but if he disapprove it, and the claimant persists in asserting it, it is then adjudicated in the probate court. Section 985 of the code provides on this subject, that on the presentation of a demand against the estate, the executor or administrator, if he approve it, “shall write on the evidence of the claim, or on a paper which he shall annex to it, a declaration, signed by him, stating that he has no objection to the payment of such claim.” It is contended by respondent, that the execution of the note in question was only an approval of the claim, under that section of the code; and that, although Mrs. Winter was prima facie personally bound by the note, it may be shown that it was her intention, and the understanding of the parties, when she signed the note, that the estate, and not she, was bound for its payment, and that such testimony is admissible; and he cites Gillet v. Rachal, 9 Rob. (La.) 276, and The Bank of Louisiana v. Dejean, 12 Rob. 16.

The controversy, however, is not whether the understanding of the parties, or intent of the makers, that she was not to be held personally bound for the payment of the note, may be shown, but in regard to the character of the evidence by which such understanding or intent may be established, respondent contending that proof of a verbal understanding to that effect, contemporaneous with or antecedent to the execution of the note, is admissible for that purpose; and such seems to have been the opinion of the court of appeals.

The cases mainly relied upon to establish this view, are the two cases last cited. In Gillet v. Rachal, the administrator had given a note as such for a demand against the estate, but at the foot of the account for which the note was given the curator gave to the administrator a receipt, at the time, stating that when the note was paid it was to be in full of the account. The court held that this was not a novation, and that the administrator was not personally bound. The following are the observations of the court in this connection: “An executor or administrator, by making or indorsing a note, in that capacity, cannot thereby bind the estate, but will make himself personally responsible for the amount. In this case it is shown that the debt for which the administrator signed the note, was due by the estate of Pierre Baulos, and that the note, by the express agreement of the parties, created no new liability but only acknowledged that of the succession.” The note and receipt...