Thompson v. McCune

• Citation: 63 S.W.2d 41,333 Mo. 758
• Decision Date: 24 August 1933
• Docket Number: 30853
• Parties: Cora S. Thompson, Appellant, v. Henry L. McCune, Executor
• Court: United States State Supreme Court of Missouri

63 S.W.2d 41

333 Mo. 758

Cora S. Thompson, Appellant, v. Henry L. McCune, Executor

No. 30853

Supreme Court of Missouri

August 24, 1933

Appeal from Jackson Circuit Court; Hon. C. A. Burney Judge.

Affirmed.

Charles W. German, Lee C. Hull, Charles Z. German and Charles T Given for appellant; Tyree G. Newbill of counsel.

(1) The court erred in giving a peremptory instruction, at the close of the case, instructing the jury that under the law and the evidence their verdict must be for defendants. Cook v Railroad Co., 63 Mo. 397; Holliday v. Jones, 59 Mo. 482; Emerson v. Sturgeon, 18 Mo. 170; Brock v. Railroad Co., 51 S.W.2d 100. (2) The court erred in holding, as a matter of law, that the evidence showed a valuable consideration for the $ 25,000 note set up in the answer. Glassbrenner v. Morgan, 296 S.W. 201. (3) On the issue of consideration for the $ 25,000 note set up in the answer, there was a controverted question of fact to be determined by the jury, and the court erred in holding otherwise. (4) The court erred in holding that the notes set up in the answer could be received in evidence, notwithstanding that the Statute of Limitations had run against them. Lietman's Executor v. Lietman, 149 Mo. 121; In re Excelsior Mfg. Co. Assignment, 164 Mo. 330; State ex rel. v. Ennis, 7 S.W.2d 737, 222 Mo.App. 713; Ford, Administrator, v. O'Donnell, 40 Mo.App. 51; Hopkins v. Thompson, 73 Mo.App. 401; Gorg v. Rutherford, 31 S.W.2d 585; Schouler on Wills (6 Ed.) 1926 Supp., p. 286; West v. Smith, 8 Howard, 402, 12 L.Ed. 1130; The Matter of the Estate of Rebecca Schaeffer, 53 Cal.App. 493; Luscher v. Security Trust Co., 178 Ky. 593; Greene v. Greene, 110 So. 218, 145 Miss. 87; Harrod v. Carder's Administrator, 13 Ohio C. C. 479; Milne's Appeal, 99 Pa. 483; Reed v. Marshall, 90 Pa. 345, 16 A. L. R. 341; St. Charles Savings Bank v. Thompson, 223 S.W. 734, 284 Mo. 72.

McCune, Caldwell & Downing for respondent.

(1) The court did not err in directing a verdict for defendant. There were adequate considerations for the notes. (a) Plaintiff not only failed to prove lack of consideration for her notes but affirmatively proved they were supported by valid considerations. Secs. 2653, 2654, R. S. 1929; Starr v. Crenshaw, 279 Mo. 344; Holland Banking Co. v. Griggs, 323 Mo. 289; Glascock v. Glascock, 217 Mo. 362; First Natl. Bank v. Fulton, 28 S.W.2d 368; 8 C. J. 212; Sec. 965, R. S. 1929; Restatement of the Law of Contracts, sec. 75, subsec. 2. (b) The authorities cited by plaintiff do not support her contention that there was an issue of fact as to consideration for the notes. (2) The Statute of Limitation was of no avail to plaintiff. (a) The indebtedness of plaintiff was a charge against her legacy and deductible as directed by the will. In re Lietman, 149 Mo. 112; Duffy v. Duffy, 155 Mo. 144; Ayres v. King, 168 Mo. 344; Trabue v. Henderson, 180 Mo. 625; Yates v. Burt, 161 Mo.App. 267; State ex rel. v. Ennis, 222 Mo.App. 713; Oerly v. Renken, 222 Mo.App. 1094. (b) The indebtedness of plaintiff was properly deducted from her legacy regardless of the lapse of more than ten years between the dates of the demand notes and the filing of the executors' answer in this proceeding, even if the will had not so directed. In re Lietman, 149 Mo. 112; Re Lindmeyer, 235 N.W. 377; Re Reiser, 195 P. 317; Noble v. Tait, 37 So. 278; Jordon v. Jordon, 201 Ill.App. 44; Holmes v. McPheeters, 149 Ind. 587, 49 N.E. 452; Re Monahan, 180 N.W. 644; Goodnough v. Webber, 75 Kan. 209, 88 P. 879; Holden v. Spier, 65 Kan. 412, 70 P. 348; Cucullu's Estate, 9 La. Ann. 96; Lockerby v. Sawyer, 189 N.W. 989; Re Bogart, 28 Hun, 466; Re Foster, 77 N.Y.S. 922; Armour v. Kendall, 15 R. I. 193, 2 A. 311; Ex parte Wilson, 84 S.C. 444, 66 S.E. 675; Wilson v. Kelly, 16 S.C. 218; Tinkham v. Smith, 56 Vt. 187; Courtenay v. Williams (Eng. 1844), 3 Hare, 539, affirmed in 15 L. H. Ch. (N. S.) 204; Re Wheeler (Eng. 1904), 2 Ch. 66, 73 L. J. Ch. (N. S.) 576, 52 Week. Rep. 586, 91 L. T. (N. S.) 227; L. R. A. 1918C, 619; 1 A. L. R. 1007; 30 A. L. R. 778; 75 A. L. R. 878. (c) The Statute of Limitation is one of repose, does not extinguish the debt, and merely bars the remedy. McMerty v. Morrison, 62 Mo. 140; Stock v. Schloman, 322 Mo. 1217; Cowan v. Mueller, 176 Mo. 198; Miller v. Miller, 169 Mo.App. 432; 17 R. C. L. 666. (d) With the will of Mr. Armour specifically directing deduction of indebtedness from legacy the right of retainer, offset, or deduction is indisputable. In re Fussell, 105 N.W. 503; Lockerby v. Sawyer, 189 N.W. 989; Cummings v. Bramhall, 120 Mass. 552; Gillingham's Estate, 69 A. 809; Avery v. McAdams, 7 S.W.2d 770; Gray v. Hayhurst, 157 Ill.App. 488; Baker v. Safe Co., 93 Md. 368, 48 A. 920; 1 A. L. R. 1009; L. R. A. 1918C, 619. (e) At the date of probate of the will the notes were less than ten years old and the effect of deducting plaintiff's indebtedness as directed by the will left the legacy a minus quantity. (f) The authorities relied upon by plaintiff do not convict the trial court of error. (3) Reply to miscellaneous arguments of plaintiff. (4) There is no merit in plaintiff's claim that her indebtedness was affected by its use as a deduction for federal income tax purposes. Putnam Natl. Bank v. Commr. of Internal Revenue, 50 F.2d 158.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The plaintiff (appellant) filed in the Probate Court of Jackson County, Missouri, her petition or application asking for an order of that court directing and compelling the defendant as sole surviving executor of the estate of Charles W. Armour, deceased, to pay to her the legacy of $ 30,000 given her by the will of said deceased. Testator died in March, 1927, and his will was duly probated in Jackson County, Missouri, which will made defendant, Henry L. McCune and Rebecca C. Armour, his widow, executors and they qualified and entered on the administration of his estate under authority of the Probate Court of Jackson County. Said will, among other provisions, contains this clause:

"I give and bequeath to Cora S. Thompson, widow of Hugh E. Thompson, of Kansas City, Missouri, on condition that she shall survive me, the sum of Thirty Thousand ($ 30,000.00) Dollars; her indebtedness, if any, to my estate to be charged against this."

It is this bequest which plaintiff by her motion asked the probate court to order defendant as executor to pay to her. The motion or application was filed in the probate court on April 5, 1928, a little more than a year after the Armour will was probated. The motion was against both executors, the widow of testator being then living, but since deceased.

The executors having filed their answer contesting the application or motion, the case was first tried in the probate court in June, 1928, resulting in a finding and judgment against plaintiff. She then appealed the matter to the circuit court where a trial de novo was had in February, 1930, which resulted in the circuit court directing a verdict for defendant, and judgment was entered accordingly, from which plaintiff has duly appealed to this court. After the trial in the probate court and before the trial de novo in the circuit court, the widow of testator, one of the executors, died and under the terms of the will defendant McCune became sole executor and the case has proceeded against him.

The answer of the defendants (executors), after admitting that the will of Charles W. Armour contained the clause mentioned giving to this plaintiff $ 30,000, with the further provision that "her indebtedness, if any, to my estate to be charged against this," set up as a defense to paying the bequest that this plaintiff was and is indebted to the estate of the testator in a sum exceeding $ 30,000, the amount of the bequest, said indebtedness being evidenced by two promissory notes, to-wit:

"$ 25,000.00

Kansas City, Mo., August 15, 1917.

"On Demand after date I promise to pay to C. W. Armour or order Twenty-Five Thousand and no/100 Dollars, at office of , Kansas City, Mo.

"For value received, with interest thereon at 5 per cent per annum from date until paid, interest payable semi-annually.

"(Signed) Cora S. Thompson."

"$ 2557.36

Kansas City, Mo., May 1, 1918.

"On Demand after date I promise to pay to C. W. Armour or order Twenty Five Hundred Fifty-Seven and 36/100 Dollars, at office of same, Kansas City, Mo.

"For value received, with interest thereon at 5 per cent per annum from until paid, interest payable annually.

"(Signed) Cora S. Thompson."

The answer containing this defense was filed in the probate court on June 4, 1928, and it will be noticed that at that time the larger note was nine months more than ten years past due and the smaller note was a month more than ten years past due. Hence it was that plaintiff by her reply set up the bar of the ten-year Statute of Limitations against the notes, claiming that same, being barred or "outlawed," did not constitute any indebtedness on her part to the Armour estate and afforded no legal reason for the executors not paying the legacy given her by the will. In this connection, however, it appears and is conceded that at the time Charles W. Armour executed his will in July, 1926, neither of these notes were barred by the ten-year Statute of Limitations, and such was also true at the date of his death and the probate of the Armour will in March, 1927. Also it appears that at the time plaintiff filed her motion or application for an order to compel the executors to pay her the legacy, to-wit, April 5, 1928, the larger note for $ 25,000 was then barred by the ten-year statute, but the smaller note lacked nearly a month of being barred.

In addition to the Statute of Limitations, the plaintiff set up by her reply that "there was no...