Swift v. Martin

• Decision Date: 23 November 1885
• Citation: 19 Mo.App. 488
• Parties: LOUISA SWIFT, ADMINISTRATRIX, Respondent, v. ALEXANDER K. MARTIN, ADMINISTRATOR, Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 488

LOUISA SWIFT, ADMINISTRATRIX, Respondent,

v.ALEXANDER K. MARTIN, ADMINISTRATOR, Appellant.

Kansas City Court of Appeals, Missouri.

Nov. 23, 1885.

APPEAL from Nodaway Circuit Court, HON. H. S. KELLEY, Judge.

Rever sed and remanded.

Statement of case by the court.

In 1869 Luther Swift died intestate, the owner and in possession of a certain promissory note for five hundred dollars, executed by one Enoch Liggett to Isaac Lillybridge, and by him endorsed for value to said Luther Swift. At the time of said Luther Swift's death Isaac Lillybridge was indebted to him in the sum of five hundred dollars. Luther Swift died without children, but left a widow, Nancy Swift. Nancy Swift was not appointed administratrix of her late husband's estate, but nevertheless took the note and some other personal property into her control and possession, and collected the said note and also the debt due from Lillybridge to her husband. The amount thus collected was between $1,050 and $1,100. Nancy Swift died in 1880 intestate. After her death plaintiff was appointed administratrix of the estate of Luther Swift.

This action was instituted in the probate court of Nodaway county against the defendant, administrator of Nancy Swift's estate, for the purpose of recovering against said estate the amount so collected by Nancy Swift.

Plaintiff had judgment in the probate court. On a trial de novo in the circuit court, the plaintiff offered in evidence the deposition of Isaac R. Lillybridge, to which the defendant objected, because the petition in this case does not state facts sufficient to constitute a cause of action, and also “because said testimony related to transactions had with the plaintiff's intestate in her lifetime, and witness' wife is interested as an heir of Luther Swift deceased.” Which objections were overruled by the court. In his deposition Lillybridge stated that his wife was a sister of the deceased, Luther Swift.

The defendant asked, but the court refused the following declarations of law:

“1. The court, sitting as a jury, declares the law to be, that if one Liggett and one Lillybridge were indebted to one Luther Swift in his lifetime, and that after said Swift's death the said Liggett and the said Lillybridge paid the amount of their indebtedness to one Nancy Swift, widow of said Luther, and that at the time of such payment, the said Nancy Swift was not the administratrix of said Swift, deceased, nor entitled by law to receive the same, then such payments constituted no extinguishment of said indebtedness of said Liggett and Lillybridge to the estate of said Luther Swift, deceased, nor their liability to said estate. Nor does the fact of such payment to said Nancy Swift render her liable to repay to the administratrix of said Luther Swift, deceased, in this case; and the fact that Nancy Swift was the widow of said Luther Swift would make no difference in this case.”

“3. The court further declares the law to be that if the debts owing by said Liggett and Lillybridge were due and payable to said Swift in his lifetime, then the statute of limitations began to run, and the death of said Swift would not cause said statute to cease to run. And if more than ten years have elapsed since the account owing by said Lillybridge became due before the commencement of this action, then said statute became a bar to plaintiff's right of recovery, and she cannot recover in this action.”

The court, sitting as a jury, “after allowing and deducting from the money collected and received by said Nancy Swift, the sums she was entitled to as the widow of Luther Swift, deceased, out of his estate, found the balance for plaintiff.”

JOHNSTON & ANTHONY, for the appellant.

I. There is no difference in principle between the admissibility of the husband and that of the wife where the other is a party. According to this rule, the deposition of Lillybridge, who was incompetent because of his wife's interest in the result, should not have been admitted in evidence, and without this the payment of Nancy Swift, executor de son tort, was not shown. Greenleaf on Evidence (14 Ed.) sect. 355.

II. The statute of limitations had become a bar to plaintiff's right of recovery. Wood on Limitations, 8; Lebeaume v. Hampstead, 1 Mo. 772. And when the statute began to run no subsequent disability could arrest it, notwithstanding no administrator was appointed until after the time for the statute to become a bar.

III. The court erred in overruling defendant's objection to the introduction of any evidence, because of the insufficiency of statement, and the giving of plaintiff's and rejecting of defendant's instruction. Graves v. Exchange Bank, 17 N. Y. 265; People ex rel.. etc., v. Treasurer, 43 Ill. 219; Story on Promissory Notes, sect. 375; Maxwell v. Longnecker, 82 Ill. 308; Seamon v. Whitney, 24 Wend. 260.

IV. Notwithstanding she was the widow of Luther Swift, she had no right to collect these debts, and the payment to her was voluntary, and without legal sanction; no payment at all, and consequently no extinguishment of the contracts.

DAVID REA, for the respondent.

I. There was no error in admitting the deposition of Lillybridge, because of the interest of his wife in the result of the suit. Rev. Stat., sect. 4010. The common law rule of evidence has been modified by the statute, so that no person is now disqualified as a witness by reason of his interest in the event of the suit. And the interest of Lillybridge's wife, whatever it may be in this case, does not disqualify her husband as a witness.

II. If any limitation existed in favor of defendant, under the statute applying to suits against administrators, it could only be taken advantage of by pleading the same in bar of the action. Stiles v. Smith, 55 Mo. 363. There is no such plea in this case.

III. The payments to Nancy Swift did extinguish the debts. She could not make defence to the contrary, if living, nor can her administrator make it for her estate. She was liable both to the wronged estate and to creditors of it.

IV. The instructions were very favorable to the estate of Nancy Swift, and the representative of her estate has no reason to complain, and the judgment is clearly for the right party. Foster v. Nowlin, 4 Mo. 18; Graves, Adm'r, v. Page, 17 Mo. 91; 1 Parsons on Contracts (6 Ed.) 132; Sherwood, Adm'r, v. Hill, 25 Mo. 301; Craslin v. Baker, 8 Mo. 437.

I.

HALL, J.

“If one, who is neither executor nor administrator, intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, he thereby makes himself what is called in law, an executor of his own wrong, or, more usually, an executor de son tort.” 1 Williams on Executors, 148; see, also, Foster v. Nowlin, 4 Mo. 18; Craslin et al. v. Baker, 8 Mo. 437; Graves, Adm'r, v. Poage, 17 Mo. 91; Magner v. Ryan, 19 Mo. 196.

“When a man has so acted as to become in law an executor de son tort, he thereby renders himself liable, not only to an action by the rightful executor or...