Montelius & Fuller v. Sarpy

| Mo. | Oct 15, 1847

Napton, J.,

delivered the opinion of the Court.

The first point of law presented by the demurrers is, whether the publication of notice of the grant.of letters which the act concerning administration directs, must be completed, as well as commenced, within thirty days from their date. The affirmative of this proposition is maintained by the plaintiff in error, and the argument in support of it is based altogether upon a literal construction of the act. We are not disposed to adopt this construction, because its language does not require it, and because such a construction of this law, at the date of its originál enactment, would have rendered it impracticable, and is not at this time necessary to carry out the designs of the Legislature. There is no connection in our administration law, as there is in some of the other States, between the running of the statute of limitation and the time when the public notice is required to be given by the administrator. The statute runs from the date of the letters, and has no reference to the period when the publication' is commenced or completed. It was only necessary to attain the purposes which the law contemplated, that a reasonable period should be prescribed within which the publication should be commenced. In 1825, when this administration law was first passed, with a provision exactly similar to the one now under consideration, the construction now contended for would have been inconvenient, if not entirely impracticable. At that period, there was, I believe, but a single newspaper printed in what was then known as the “ Boon’s Lick Country,” and that was a weekly periodical. If the three weeks notice was necessary to be completed within the thirty days, only nine days would be allowed the administrator in which to procure the first publication. Where he resided on the frontier, three or four days would be requisite to enable him to reach the office of publication, (which was in Howard county) and if he happened to arrive on the day of publication, but after the paper had been struck off, or the one succeeding it, he could not comply with the law. This, too, would be making no allowance for casualties, and it is quite apparent that, in nine cases out of ten, the law so construed, could not be complied with. This provision, therefore, could not have received.this construction practically in 1825, or for several years thereafter, and as the law now remains precisely as it was then, a different construction cannot prevail, although the situation of the country now would render such construction practicable.

The second position of the plaintiff in error is, that the special limitation of the administration act is subservient to the general statute of limitations; that the former is confined entirely to proceedings in courts of probate, and consequently is no bar to the present action. The words of the act are, that “ all detnands not thus exhibited, shall be forever barred.” It is provided in the same article, that the administrator may be sued either in the Circuit or County Court, and a proceeding in the former court is declared to be a demand from the time process is served. The language of the act is therefore against the construction now contended for. Is there any thing in its general scope or in the general requirements of justice which calls for such a construction?

It is admitted, that after the lapse of three years, a suit against the administrator, either in the Circuit Court or Probate Court, could not be made available against the estate of the deceased. But, to explain the necessity for the.distinction urged, it is said that the judgment sought in the Circuit Court, although it could never be presented as a claim against the estate of Chouteau, might be made the foundation of a collateral proceeding against persons who have become Chouteau’s voluntary or fraudulent alienees in his lifetime. This explanation certainly establishes, that the plaintiff may be benefitted by the construction he contends for, but. is not, I think, a sufficient reason for its adoption. If a party, by his laches, loses his right to a judgment, he necessarily loses all contingent or collateral benefits which he might have derived from such judgment. And the question at last returns, is the statute a bar to the action ? The object which the plaintiff may have in view when he institutes a suit, is of no consequence. If a bar to his recovery is presented, he cannot remove it by disclaiming any wish to use the desired judgment against the defendant. The construction of the statute of limitations must be, uniform; the statute cannot be enforced or waived, according to the purposes of the suitor.

Our construction of the administration law is, that the limitation therein provided for entirely supercedes the general statute on that subject; that when a man dies, there is no mode of proceeding against his personal representatives, except those pointed out in that act, and that those proceedings, in whatever court they may be instituted, must be governed by the provisions of the administration law, and subject to its limitations and restrictions. As the act concerning administration recognizes a suit in the Circuit Court as one of the modes of proceeding against an administrator, and at the same time declares that all demands against him or against the estate, which are not prosecuted within three years from the (date of the letters, shall be forever barred, the limitation must apply to both classes of suits. If any distinction had been designed, it would have been expressed. Indeed, the plaintiff’s argument seems to admit this construction of the statute. It is admitted that all remedy against the estate of the deceased is gone; but it is argued that this is the sole object of the statute, and that this object will be as well affected by confining the limitation to suits in the Court of Probate, in which all demands against the estate must ultimately be allowed. The distinction, then, rests entirely upon the assumption that a creditor may have a cause of action against his debtor or against his debtor’s estate, the remedy upon which, either against himself or his estate, as the case may be, is entirely extinguished, and yet enforce the same cause of action against some, third person. Whether this can be done or not, depends upon another question, and that is, whether his right to enforce his cause of action against such third person be independent of the enforcement of his remedy against the original debtor, or be dependent upon it. If the latter, the collateral action is as completely barred as the original suit. If Chouteau were now alive, and the plaintiff’s cause of action was barred by the general statute, could he enforce a covenant in a collateral suit in which the condition precedent was the recovery against Chouteau ? Certainly not. And the case is not altered by Chouteau’s death, except that the special limitation is shorter than the general limitation law.

The other Judges eoncurring,

the judgment is affirmed.