Wilson v. Gregory

• Citation: 61 Mo. 421
• Parties: D. B. WILSON, Plaintiff in Error, v. JNO. H. GREGORY, ADMINISTRATOR, OF C. H. GREGORY, DEC'D, Defendant in Error.
• Decision Date: 31 October 1875
• Court: United States State Supreme Court of Missouri

61 Mo. 421

D. B. WILSON, Plaintiff in Error,

v.JNO. H. GREGORY, ADMINISTRATOR, OF C. H. GREGORY, DEC'D, Defendant in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Osage County Circuit Court.

Ewing & Smith, for Plaintiff in Error.

The period of limitation against demands can only avail the administrator when he has given the notice in the manner and with the time prescribed by law. (Wagn. Stat., 86 § 19; Bryan vs. Mundy, Adm'r, 17 Mo., 556; Wiggins vs Green, Adm'r, 9 Mo., 264; 13 Mo., 125; Emmerson vs Thompson, 16 Mass., 434; McLinn vs. McNamari, 2 Dev & Bat., 85; Pendelton vs. Phelps, 4 Day., 476.)

Lay & Belch, for Defendant in Error.

I. The notice states the facts of the granting of letters, their date, and to whom granted, and requires parties to procure allowance of their demands. This is sufficient. (Merchants' Bank vs. Ward's Adm'r, 45 Mo., 310; see also, 1 Gall., 41; 7 Cr., 506; Greenabaum vs. Elliot, 60 Mo., 25.)

The notice need not state the law or their rights.

The notice is right, and the difficulty arises out of a disregard or a confounding of the words “exhibit” and “present,” as used in the statute. The exhibition must be within the two years, (Wagn. Stat., 102, § 2,) and the presentation within three years. (Id., § 6.)

WAGNER, Judge, delivered the opinion of the court.

The record shows that the plaintiff presented an account for allowance against the estate of C. H. Gregory, deceased, at the May term, 1873, of the Osage county court. Due notice of the presentation of the account was regularly served on the administrator, and the county court allowed and classified the same. The administrator appealed the case to the circuit court, where it was tried by the court sitting as a jury, and upon a hearing thereof, the administrator objected to the introduction of any testimony by the plaintiff, and assigned as a reason for his objection, that the account was not exhibited within two years after the granting of letters of administration. The objection was sustained and the court declared the law governing the case to be, that if the demand was not exhibited within two years after the granting of letters, it was barred. The plaintiff thereupon took a non-suit, and upon a refusal by the court to set the same aside, he has prosecuted his writ of error.

At the time of exhibiting the demand for allowance two years had elapsed.

The decisions in this court are numerous, holding that an administrator cannot avail himself of the limitation prescribed in the statute as a bar to a demand, unless he has given notice of his letters in the manner and within the time directed by law.

The statute under which this proceeding was had, prescribed that the administrator should give notice by publication, “requiring all persons having claims against the estate to exhibit them for allowance to the executor or administrator within one year after the date of the letters, or they may be precluded from any benefit of the estate; and that if such claims be not exhibited within two years from the time of such publication, they shall be forever barred.” (1 Wagn....