Woltemahr v. Doye

• Decision Date: 03 November 1903
• Citation: 76 S.W. 1053,102 Mo. App. 133
• Parties: WOLTEMAHR v. DOYE.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

76 S.W. 1053

102 Mo. App. 133

WOLTEMAHR v. DOYE.^*

Court of Appeals at St. Louis, Missouri.

November 3, 1903.

EXECUTORS AND ADMINISTRATORS—CLAIMS—PRESENTATION —AFFIDAVIT—NOTICE—ACTION —LIMITATIONS—WITNESSES—COMPETENCY—TRANSACTIONS WITH DECEDENT.

1. Under Rev. St. 1899, § 195, directing that the court shall not allow any demand against any estate unless the claimant make affidavit that he has given credit to the estate for all payments, and that the balance claimed is justly due, an affidavit presenting for allowance a note with credits indorsed thereon is not defective because the amount claimed to be due is not stated.

2. Under Rev. St. 1899, § 197, providing that the claimant shall deliver to the executor a written notice containing a copy of the instrument or account on which his demand is founded, a notice to an executor of a claim founded on a note which fails to present a copy of the note is insufficient.

3. Under Rev. St. 1899, § 199, providing that an executor may appear in court, or by writing waive the service of any notice of a claim, the voluntary appearance of an executor in court without any objection to the insufficiency of the notice of the claim is a waiver of it.

4. Under Rev. St. 1899, § 188, providing that any person may exhibit his demand against an estate by serving on the executor a notice stating the amount and nature of the claim, with a copy of the instrument, the exhibition of a claim founded on a note which does not contain a copy of the note is insufficient.

5. Under Rev. St. 1899, § 185, providing that all demands not exhibited in two years after the grant of letters shall be barred, and section 184, directing that all demands exhibited after one year and within two years shall be placed in the sixth class, if a suit is brought against an executor on a claim within two years, the claim will not be barred, though it was not exhibited to him before suit was commenced.

6. Where appellant in due time procured the judge's signature to his bill of exceptions, and delivered it to the clerk to file, and he marked it "Filed," but omitted an entry on his minutes showing the filing, the appellant will not be charged with omission.

7. Where payments on a note executed by a decedent and presented for allowance against his estate were made personally to the claimant, and their indorsement was made as credits by a third person at the claimant's request, the indorsements were but clerical performances, to which such third person was competent to testify.

8. Where an action on a note is within 10 years from the date of the last payment indorsed thereon, it is not barred.

Appeal from Circuit Court, Warren County; Elliott M. Hughes, Judge.

Action by Margaretha Woltemahr against Frank Doye, executor of the estate of Herman Schnick, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

C. E. Peers & Son, for appellant. E. Rosenberger & Son, for respondent.

BLAND, P. J.

Plaintiff presented in the probate court the following note for allowance against the estate of Herman Schnick, to wit:

                                   "February 25 day, 1869
                

"One day after date I promise to pay to the order of Margret Waltemar the sum of eight hundred and forty-five dollars for value received negotiable without defalcation or discount and with interest from date at the rate of six per cent per annum.

                  "[Signed.]            Herman Schnick."
                

Upon the back of the note appear the following credits:

                  " Binfe bezahlt big     -       1871
                  " Pade interest op to           1874
                  " Ditto $50.00 Doller      -    1878
                  " Ditto $25.     -        -     1881
                  " Received $50.00        -      1882
                  " Received $100.00 in gold      1884
                  " Ditto $50.00     -      -     1884
                  " Paid $100.00      -      -    1886
                  " By oats $5.00      -          1891
                  " Paid $50.00 Aug.        -     1892"
                

Plaintiff made the following affidavit to her demand:

"State of Missouri, County of Warren—ss. Margret Waltemar, being duly sworn according to law, says that, to the best of her knowledge and belief, she has given credit to the estate of Herman Schnick, deceased, for all payments or offsets to which it is entitled, on demand above described, and that the balance there claimed is justly due.

                  "[Signed]             Margret Waltemar
                

"Subscribed and sworn to before me this 24th day of December, 1901.

                  "[Seal.]   Witness my hand and official 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:

                              "Warrenton, Mo., Dec. 24, 1901
                

"To Frank Doye, Executor of the estate of Herman Schnick, deceased: Take Notice, that on the first day of the next November adjourned term of the Probate Court of Warren County (to be holden at the Court House in said county, on Saturday, the eleventh day of January next) or as soon thereafter as I can be heard, I shall present to said Court for allowance against the estate of Herman Schnick, deceased, a demand for the sum of ____ dollars founded on a note.

                  "[Signed.]          Margret 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 payments 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 indorsed 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, Rev. St. 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. Section 197, Id. 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,...