Waltemar v. Schnick's Estate
| Citation | 76 S.W. 1053,102 Mo.App. 133 |
| Parties | WALTEMAR, Respondent, v. SCHNICK'S ESTATE, Appellant |
| Decision Date | 03 November 1903 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Warren Circuit Court.--Hon. E. M. Hughes, Judge.
AFFIRMED.
Judgment affirmed.
Peers & Peers for appellant.
(1) The affidavit to the demand is an essential prerequisite to its allowance, and the affidavit in this case is fatally defective. R. S. 1899, sec. 195; Hood v. Maxwell, 66 S.W. 276; Lanigan v. North, 69 Ark. 62; Clancy v. Clancy, 7 N. Mex. 405; Cole County v Dallmeyer, 101 Mo. 57. (2) There can be in this case no presumption in favor of the affidavit, since the affidavit was introduced in evidence, and the defect appears upon its face. Erhart v. Dietrich, 118 Mo. 418, 427; Brownlow v. Wollard, 61 Mo.App. 124; Sackberger v. Nat. Grand Lodge, 73 Mo.App. 38; Haycraft v Grigsby, 88 Mo.App. 354. (3) No exhibition of the demand was made to the executor, as required by section 188 of the Revised Statutes, 1899; without such exhibition the probate court had no jurisdiction. Pfeiffer v. Suss, 73 Mo 245; Burton v. Rutherford, 49 Mo. 255; Bank v. Burgin, 73 Mo.App. 108; Bank v. Suman, 79 Mo. 527; Gewe v. Hanzen, 85 Mo.App. 136; Williams v. Gerber, 75 Mo.App. 18; Watkins v. Donnelly, 88 Mo. 322; Seligman v. Rogers, 113 Mo. 642; Thurmond v. Sanders, 21 Ark. 255; In re Morton's Estate, 7 Misc. 343; King v. Todd, 27 Abb. N. C. 149; Pike v. Thorp, 44 Conn. 450; McDowell v. Jones, 58 Ala. 25; Jones v. Peebles, 30 So. 564. (4) The notice of presentation for allowance is fatally defective. R. S. 1899, sec. 197. (5) There was no waiver by the executor of either the exhibition of the demand, or the notice of presentation. R. S. 1899, secs. 188, 199; Milan v. Pemberton, 12 Mo. 598. (6) The witness, Lydia Waltemar, was incompetent and her testimony should have been excluded. Green v. Ditsch, 143 Mo. 1; Donnell Newspaper Co. v. Jung, 81 Mo.App. 577; Edwards v. Warner, 84 Mo.App. 200. (7) The court erred in excluding testimony relating to the testator going to the poorhouse, and as to the payment of checks drawn by the testator. (8) This is not a case where the court will presume that a proper affidavit was made. The affidavit itself being in evidence, there is no room for presumptions. It must speak for itself. As is said by the Supreme Court: "Presumptions are out of place when the facts are known."
J. W. Delventhal and E. Rosenberger & Son for respondent.
(1) Where the transcript on an appeal is composed of two sections, one supposably intended for the bill of exceptions, without any preliminary heading or authentication, and the other containing a mere statement that a bill of exceptions was filed in the cause, but not identifying or authenticating the other section as such bill, such papers can not be considered. Reno v. Fitz Jarrell, 163 Mo. 490; State v. Baty, 166 Mo. 561; State v. Winegard, 168 Mo. 490. (2) If a bill of exceptions is filed in term time, the filing must be evidenced by a record entry of the court showing the filing, and if a bill of exceptions has not been authenticated in that manner it can not be considered. Lafolette v. Thompson, 83 Mo. 199; State v. Rolley, 136 Mo. 677; Wilson v. Railway, 167 Mo. 323. (3) The transcript fails to show that a motion for a new trial was filed and when. This is fatal. Bank v. Stone, 80 Mo.App. 406.
Plaintiff presented in the probate court the following note for allowance against the estate of Herman Schnick, to-wit:
(Signed) "HERMAN SCHNICK."
Upon the back of the note appear the following credits:
Ditto $ 25.
1892"
Plaintiff made the following affidavit to her de mand:
(Signed) "MARGARET WALTEMAR."
(Seal) "C. F. POISSE, Judge of Probate."
Of her intention to present said demand plaintiff served on defendant, as executor of the estate of Herman Schnick, the following notice:
(Signed) "MARGARET WALTEMAR."
Defendant appeared in the probate court at the term he was notified that said demand would be presented for allowance, and contested the demand. The probate court rendered judgment in favor of the plaintiff and placed the allowance in the sixth class of demands. The defendant appealed.
On a trial de novo in the circuit court, plaintiff again recovered judgment from which the defendant appealed.
1. Defendant contends that the affidavit to the demand was insufficient to confer jurisdiction on the probate court to hear and determine the same. Section 195, of the administration law, provides: "The court shall not allow any demand against any estate unless the claimant first make oath in open court, or file his affidavit with such claim, stating to the best of his knowledge and belief that he has given credit to the estate for all payment and offsets to which it is entitled, and that the balance claimed is justly due." The only defect in the affidavit pointed out by the defendant and relied upon by him for the reversal of the judgment is, that the amount claimed to be due is not stated in the affidavit. The demand presented for allowance was a promissory note with credits thereon. The affidavit was that all just credits had been given on the note. The exact amount due was a mere matter of calculation. It is a maxim of the law that, "that is certain which can be made certain." It was a mere matter of calculation to determine the amount that was due on the demand as presented. The object of the statute is to purge the conscience of the claimant. This was done when the claimant made affidavit to the fact that the note was due, less the credits that had been given thereon, and we think the affidavit substantially met the requirements of the statute, certainly sufficiently so to give the probate court jurisdiction of the claim.
2. Defendant makes the further contention that the demand was not exhibited to defendant, as executor, as required by section 188, Revised Statutes 1899, and that the notice of plaintiff's intention to present it to the probate court for allowance is also insufficient. The notice required to be given by a claimant, who desires to present his claim to the probate court for allowance is, that "the claimant shall deliver to the executor or administrator a written notice containing a copy of the instrument of writing or account on which his demand is founded," etc. Sec. 197, R. S. 1899. The notice served on defendant did not contain a copy of the note, which was the foundation of the plaintiff's demand. It was for this reason insufficient. But this notice "may be waived by the executor or administrator appearing in court when the claim is presented for allowance" (sec. 199, R. S. 1899.) The record shows that defendant did voluntarily appear in the probate court without making any objections to the insufficiency of the notice, and submitted to a trial of the claim before the court and a jury. By his appearance he clearly waived the necessity of notice.
In respect to the exhibition of a claim to the executor, the statute (sec. 188, supra) provides that "any person may exhibit his demand against an estate by serving upon the executor or administrator a notice in writing stating the amount and nature of his claim, with a copy of the instrument or writing or account upon which his claim is founded." The exhibition of plaintiff's claim to the defendant did not contain a copy of the note (the instrument of writing upon which her claim is founded) and for this reason was wholly insufficient under the statute.
A preceding section (185) provides that "all demands not exhibited in two years from the grant of letters shall be forever barred, saving to infants," etc. Another section provides that "all demands exhibited after the end of one year and within two years after letters are granted shall be placed in the sixth class of demands" (sec. 184, R. S. 1899.) It seems to us that the object gained by an exhibition of a demand under the statute it to stop the running of the statute of limitations. But it is not the commencement of a suit on the demand, it is only the exhibition of the foundation of a suit to be thereafter commenced.
We think it is clear from the foregoing statutes that if no exhibition of a demand is made, nor suit brought on it within two years, that it will be...
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