75 Mo. 219 | Mo. | 1881
This was a suit originally against Harriet ■ and Patrick E. Smith, her husband, and Eobert, as trustee of the said Harriet, wherein it was sought to charge the separate estate of Mrs. Smith with the payment of the balance of a note'executed by her, her husband and her said trustee, payable to the plaintiff. Mrs. Smith died while the suit was pending and after defendants had answered, each admitting the execution of the note, and the husband and wife alleging her coverture when the note was executed; that she received no consideration for her signature; that it was procured by fraud on the part of the plaintiff; that it was not voluntarily executed by Patrick, and that Harriet signed by compulsion of her husband, to which plaintiff was a party, and that she did not thei’eby
On said trial plaintiff read as evidence those parts of the answer of the original defendants admitting the execution of the note, the note itself, a deed conveying the property in question to Robert as trustee for the separate use, etc., of Harriet Smith, and proved that she had no other estate, and that there had been no administration on her estate. No objection was made to the admission of any of the evidence, and the judgment must have been based upon the conclusion that the circuit court had no jurisdiction of the cause, Mrs. Smith having died while it was pending. In other words, the argument made here must have prevailed in the circuit court, that, alter the death of Mrs. Smith, the plaintiff had a legal demand which he could have presented for allowance in the probate court, or that the administrator of her estate, instead of the heirs, was the proper party, even if the circuit court could retain, -because it had once acquired, jurisdiction. The question is, therefore, presented, whether the plaintiff had a claim against Mrs. Smith or her property, of which the probate court had jurisdiction.
In Sockett v. Wray, 4 Brown Ch.485, the Master of the Bolls, said : “ It is argued that supposing her a femme sole, she could do the act; there the single woman can act, be
It follows from the foregoing premises that when Mrs. Smith died, the note in suit was not a debt against her for which her personal representative could be sued, and it could not be allowed in the probate court against the general assets of her estate in course of administration. It is no demand against her general estate. It could not be allowed as such. It was not a lien upon her separate estate. The right of the plaiutiff to satisfaction out of her separate property is a creation of equity, recognized nowhere else, and enforceable nowhere else.
Thus far we encounter no difficulty; but here one occurs, which should be met by an amendment of the administrati on law, inasmuch as in this progressive age it is not unusual for married women to execute promissory notes and incur other pecuniary obligations, and to hold property for their sole and separate use. When a femme covert dies, her separate property ceases to be such, and stands "upon the same footing as any other she may have owned. While her death does not extinguish the right of one to satisfaction of an obligation incurred by her while a femme covert, out of what was her separate property, he has no right to satisfaction out of any other of her property, which is subject to the debts of her general creditors, if she have any, and she may have such, while they, equally with the special creditors, have a right to resort to whatever was her separate property for payment of their demands. If, then, the court should find for plaintiff, what judgment shall it render ? If it decree the sale of this property for payment of plaintiff'’s demand, and it should thereby be paid, and there should be other creditors, either general or special, he would obtain a preference to which he is not entitled over either class. Nor can the court, in this cause, determine whether there are or not other creditors; for unless parties to the proceedings, if there were any they would not be bound by such adjudication. It has been ascertained in this case that Mrs. Smith was possessed of no other property; but it has not been, nor could it in this proceeding be, conclusively ascertained that she owed no other debts. The circuit court cannot bring other creditors in and take charge of the administration of the estate by-allowing demands against it, and making final distribution. That jurisdiction has been confided to the probate court. Titterington v. Hooker, 58 Mo. 593. That there is here