Johnston v. Thompson

145 Mo. App. 463 | Mo. Ct. App. | 1909

GOODE, J.

This proceeding was begun in the probate court by plaintiff to recover $360 in cash out of the estate of Charles R. Ulrici, deceased, in lieu of an allowance of provisions for one year’s support. Plaintiff, Erika Johnston, is the widow of said Charles Ulrici, and defendant Thompson is the administrator of his estate. Erika Johnston was married to the deceased in 1891 and lived with him in the city of St. Louis until 1898, when he died. She subsequently married a man named Johnston and moved to Arkansas. Ulrici left no personal property whatever at his death, except his clothes, which he had bought with money advanced by plaintiff, but he was interested in a policy of insurance on the life of his father; a fact plaintiff was ignorant of at the time. This interest of the deceased Avas one-fourth of policy No. 172000, dated September 2, 1884, issued by the Connecticut Mutual Life Insurance Company, on the life of Rudolph W. Ulrich, being a paid up policy for $3112. Said Rudolph died March 4, 1907, whereby one-fourth of the policy, or $778, became payable to the estate of his son, Charles R. Ulrici. Plaintiff claimed the right to have $360, in lieu of the provisions, or money substitute therefor, the statute would have allowed her out of her husband’s estate if he had been possessed of property or money When he died. [R. S. 1899, secs. 105, 106.] The court found plaintiff was entitled to twenty dollars a month or $240 in lieu of such provisions, and entered judgment in her favor for said sum, and defendant appealed, contending the demand was barred by limitation. The statute cited as barring plaintiff’s claim is the one Avhich limits actions on a liability, other than a penalty or forfeiture, created by a statute, to five years. [R. S, 1899, sec. 4273.] The argument is that plaintiff’s, demand rests on a statute giving her a year’s provisions, or, in lieu of same, a reasonable appropriation out of the assets of the estate, and this statutory liability of the estate, not being a penalty or forfeiture, falls within the limitation prescribed in the cited section. Allowing-this reasoning to be sound, though we think its soundness dubious, the question comes up regarding when the statute began to run against plaintiff’s demand. No administration was granted on her deceased husband’s estate until April 2, 1907, or more than nine years after his death; and on June 12, 1907, shortly after administration was granted, plaintiff presented her demand. Commonly the statute limiting the presentation of demands for allowance against an estate, does not begin to run until letters are granted, and bars ordinary demands in two years after the grant. [R. S. 1899, see. 185.] But the two-years statute does not apply to a demand by a widow like the one in controversy. [Campbell v. Whitsett, 66 Mo. App. 444.] Counsel for defendant insists the five-years statute began to run against plaintiff before letters were granted, because she was entitled to take out letters; citing Bauserman v. Blunt, 147 U. S. 677. In that case the Supreme Court of the United States followed the Supreme Court of Kansas in its construction of a statute of the State of Kansas. The construction adopted was that if the limitation period was running in favor of a debtor when he died, the statute was suspended by the death, but only long-enough for the creditor to have an administrator appointed for the debtor’s estate; Said decision, which does not declare the general doctrine held by the United States Supreme Court, but merely announces a rule peculiar to the State of Kansas as established by the decisions of its Supreme Court, would be no authority even in Kansas for the proposition in support of which it is cited in the present case, to-wit, that a limitation statute will run in favor of the estate of a decedent, against a demand held by a claimant who is entitled to take out letters of administration on the estate, even though, in fact, letters have not been granted to the claimant or any one else. We know of no authority anywhere for that proposition. It is true plaintiff, as the widow of Charles R. Ulrici, might have asked for letters on his estate if she had been apprised of any ■assets left by him, but she was not bound, even then, to take out letters; and to hold the law will punish her for not availing herself of the privilege to administer, by barring a claim she holds against the estate for ¡statutory allowances, or arising out of other matters, would be a ruling without precedent in the adjudicated .cases. If the five-year Statute-of Limitations has anything to do with this demand, it would only begin to run after administration had been granted, so the demand could be preferred in the probate court.

Neither do we see how the interest of Charles R. Ulrici in the insurance policy could have been administered upon until the death of his father, the insured,, or plaintiff’s demand paid, except by having the expectancy sold by order of court; and this would have been a most improvident procedure, and one any court would be slow to authorize, because such an uncertain interest probably would be sacrificed in a sale. No doubt the insurance money was an asset of Charles R. Ulrici’s estate after the death of the insured and payment by the company. It then fell within that class of assets of a decedent which consists of property accruing after his, death. [11 Am. and Eng. Ency. Law (2 Ed.), p. 836, and citations; Conigland v. Smith, 79 N. C. 303; U. S. Trust Co. v. Ins. Co., 115 N. Y. 152.] And it was a vested interest in Charles R. Ulrici as beneficiary evens during the life of the insured. [U. S. Casualty Co. v. Kacer, 169 Mo. 301.] For these reasons the defense of laches is raised against plaintiff, it being asserted she should have taken out letters or presented her demand sooner. Suffice to say she was ignorant that her husband had any interest in the insurance policy or even of its existence, and hence laches cannot be imputed to her; especially as the estate has not been prejudiced by the delay.

The judgment is affirmed.

All concur.