Bryan v. Mundy

14 Mo. 458 | Mo. | 1851

Birch, J.,

delivered the opinion of the court.

In the lifetime of Felix Mundy, John G. Bryan obtained a judgment against him before a justice of -the peace, made a portion of the-money on execution, filed a transcript in the circuit court clerk’s office, from which issued a second execution, upon which a small additional sum was made. The defendant subsequently denying, a transcript of this judgment was filed in the county court clerk’s office on the 22nd of December, 1847, and the demand classed against his estate at the February term, 1848. Two years after the judgment was thus classed, the administrator of Mundy appeared in the county court and moved to set aside the allowance against his decedent, for reasons which we are to presume were satisfactory, inasmuch as the party complaining then and complaining yet, although causing them to be referred to, has not embodied them in the record by which he has brought the case here. In the circuit court, to which Bryan appealed from the judgment of the county court, the administrator proved by the clerk of the county court that he had never seen any notice to the administrator of Mundy, when the. transcript was filed or allowed, and that such notice was not waived in open court.

The defendant thereupon, in order to sustain the issue on his part, produced Israel McGready, who testified that as clerk of the circuit court he had made out the transcript offered in evidence; that some 12 months or more before he bad prepared it, Dr. Bryan had applied to him to do so, stating that the administrator had been making preparations to settle the debt, without carrying it to the county court. Witness stated that the widow of the deceased had dower in a house and lot purchased by Dr. Bryan (the defendant in this proceeding) under an execution in his favor against the deceased, and that the administrator had proposed that the widow would relinquish her dower, and they would convey to him, if he would give up the debt, and that Dr. Bryan had agreed to do it. He stated at that time that he would wait awhile and see whether the administrator and widow would come up to their promise before he got the transcript. Mr. McGready further stated that he had been connected with the clerk’s offices in that county for 18 years, and had lived in the county for 32 years, and that the unvarying practice had been not to give notice to administrators in filing transcripts of judgments against their intestates estates.

The question before us is, did the circuit court do right in affirming the action or proceedings of the county court, rescinding or setting aside the allowance in favor of Bryan, on the ground that the administrator had had no notice.

The first section of the fourth article of the administration law explicitly recognizes “judgments rendered against the deceased in his life time,” (as demands “against his estate, and assigns them ordinarily, though not invariably, to the fourth class. By the twelfth section of the same article, it is enacted (peremptorily, it would seem,) that “any person desiring to establish a demand against any estate, shall deliver to the executor or administrator a written notice, containing a copy of the instrument of writing or account on which it is founded, and stating that he will present the same for allowance at the next term of the county court; and by the 14th section it is provided, that the administrator may appear in court and waive the service of any such notice.

It is not perceived in what respect, if any, the legislature has discriminated in favor of establishing a demand evidenced by a judgment against the party during his lifetime, in preference to one that is evidenced by a note or a bond, and there seems to us no sufficient reason why they should have done so. Hence, the 9th and 10th sections unquestionably require that the claimant should take the same oath in respect to every species of demand, for it makes no discrimination in favor of one of this nature, and it would be too absurd to do so. So, also, the 6th section enacts that “every executor and administrator shall keep a list of all demands thus exhibited, classing them, and make return thereof to the county court every year, at the term at which he is to make settlement.” This section evidently contemplates that the administrator will be in court pursuant to notice, or to waive notice, upon the exhibition and allowance of every demand agaipst his decedent, for how, otherwise, could he “keep” a list of the demands exhibited? True, he might go to the clerk just before his settlement and procure such a list. But such a course is neither in fulfilment of the letter or the spirit, of the law. It may as well be added that it will have been in vain that the legislature has enacted proper rules for the protection of the estates of the dead, unless the courts hold all parties to their more punctual observance, for our observation upon the bench has abundantly confirmed us that in no branch of the jurisprudence of the State has the “practice” of the courts been more loose and inexcusable than in the allowance of demands on the general settlement of estates.

That the words of the- 12th section of the administration act, which require that the written notice to the administrator shall contain “a copy of the instrument of writing or account” upon which the demand is founded, do not technically fall within this case is no sufficient argument when applied to a jurisdiction and a subsequent matter (sec. 15) when the trial is summary and without the form of pleading. A compliance with the spirit and object of the law would have required no ingenuity even, if indeed a compliance with its very letter would not have been quite as practicable as in reference to many other species of demands, which have to pass the same ordeal, and of course are governed by the same requisition. Because the legislature has not always employed apt words wherewith to meet every case that may occur, the courts are not therefore to lose sight of the object which was manifestly in their view, but are to give to the whole enactment such a construction and effect as, if possible, to promote and accomplish the general object which was aimed at. Had that been done in the case before us, by notifying the administrator of Mundy that a demand founded upon an unsatisfied judgment, (reciting a copy of it) would be presented to the county court fur classification, (the same thing as allowance,) who can say that the administrator might not have availed himself of an offset, or even of some equitable defence, accruing or developing itself after the rendition of the judgment, and thus have defeated its allowance? Far from supposing or iutimating that this would have been done, the whole object of the law seems to contemplate that it may be done ; and because no notice was given, and no opportunity thereby afforded the ad-rainistrator to do so, or in any other manner to defend the interests of his intestate’s estate, the original classification of the demand was un-authoritative and illegal, and both the county court and the circuit court did right, when the facts were brought to their knowledge,, and undenied, to so declare it, and to set aside the allowance, or declare the judgment void, accordingly.

The judgment is therefore affirmed.