Wiggins v. Adm'r of Lawson Lovering

• Decision Date: 31 July 1845
• Citation: 9 Mo. 262
• Parties: WIGGINS v. ADM'R OF LAWSON LOVERING.
• Court: Missouri Supreme Court

9 Mo. 262

WIGGINS

v.ADM'R OF LAWSON LOVERING.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO ST. CHARLES.

LEONARD & BAY, for Plaintiff. 1. That the executrix not having given notice to creditors as required by the 25th section of the act concerning Administration, Rev. Laws, 1835, p. 101--the defendant, as administrator de bonis non, cannot set up the limitation of three years in bar of the plaintiff's demand. Emerson v. Thompson, 16 Mass. 431; McLinn v. McNamarin, 2 Dev. & Batt. 85; Pendleton v. Phelps, 4 Day, 476. 2. That before the defendant could, as such administrator, avail himself of the bar of three years, it was incumbent on him to show that notice had been duly published as required by the administration law; or that the plaintiff had either actual or constructive notice of the granting of letters testamentary to said Barbara Lovering. 3. That the plaintiff having had no notice of the granting of letters testamentary to said Barbara Lovering, either actual or constructive, it would be a fraud upon his rights to permit the defendant to set up the limitation act in bar of his claim. It is a principle well settled that a party shall not be precluded by a proceeding affecting his rights, when he has had no notice of such proceeding. 4. That the property devised in the will of Lawson Lovering to Barbara Lovering, is expressly charged with the payment of his debts, and that as executrix and devisee she held said property subject to the payment of such debts. Jones v. Earl of Sanford, 3 P. Williams, 83; Shallcross v. Finden, 3 Vesey, 737; Rosevelt v. Mark, 6 Johns. Ch. R. 294; 1 Russ. & Mylne, 255, Jones v. Scott. 5. That the letters testamentary were granted to said Barbara Lovering in violation of the express provision of the administration act, requiring bond with security to be given by all executors, &c., she having given no such bond. This provision of the administration law is intended for the benefit and security of creditors, as well as of the heirs, legatees and devisees, and cannot be dispensed with by the testator.

WM. M. CAMPBELL, for Defendant. 1. The statute requiring an admistrator or executor to give notice to creditors of the existence and date of their letters, is a useful directory statute, but does not in any manner affect the length of time allowed by law to creditors for the exhibition of their demands against the estate, nor does the failure to give that notice repeal or nullify the statute of limitations against such demands. 2. The fact of property having been devised by will to the executrix, in trust, to pay the debts of the estate, might possibly be used with propriety in a private suit against the trustees, but cannot affect the statute limiting the time for exhibiting demands against the estate. 3. Barbara A. Lovering was executrix in fact, of the estate of Lawson Lovering, for more than nine years after the date of her letters; during that time the present demand was never exhibited for allowance and is forever barred. 4. The administrator is bound by law to plead the statute of limitations against all demands to which it is applicable, and he cannot waive the defense openly and directly, even if he should desire to do so, and of course cannot do the same thing indirectly by an omission of duty or a failure to give no

SCOTT, J.

Wiggins presented a claim against Fine, as administrator of the estate of Lawson Lovering, to the County Court of St. Charles county, which was allowed by the court. On an appeal to the Circuit Court a judgment was rendered against the plaintiff, Wiggins, who is the plaintiff in error.

It seems that Barbara Lovering, the wife of Lawson Lovering, deceased, was appointed executrix by her husband. She took out letters testamentary, but failed to give the notice of the fact, required by law. Barbara Lovering after having acted as executrix for more than three years from the date of her letters, was replaced by Joshua Fine, the present administrator and party to this suit. The claim was not presented within three years from the date of the letters. The instructions filed in the cause, are full of obscurity, and it is more difficult to discover their point, than to declare the law arising on them. It is for gentlemen concerned in the management of causes in the inferior courts to determine how far the interest of their clients is promoted by involving the records of causes in so much doubt and obscurity.

The question on which it would seem the cause turned in the Circuit Court, and which has been the only one argued in this court, is, whether an executor or administrator can avail himself of the bar created by the statute limiting the exhibition of demands against an estate, to three years from the date of the letters testamentary or of administration, unless he shows that he has given the notice of taking out the letters required by law?

The law directs that a notice be published in some newspaper in this State, for three weeks, by an executor or administrator of an estate, informing all persons having claims against said estate, that unless they are presented for allowance within three years from the date of the letters testamentary or of administration, they will be forever barred. This notice must in contemplation of law be effectual, otherwise, why should it be required? Is it not a presumption of law, that the want of this notice may prove an injury to the creditor of a decedent's estate? Why inform creditors that their claims would be forever barred unless some mode of communicating that notice was devised, which would bring home to them a knowledge of it. The publication of it in a newspaper, was thought by the Legislature, sufficient for this purpose. Suppose that a personal notice had been required to make the limitation a defense, would it be contended that any claim was barred without proof of such notice? That...