Smith v. Settle, 128 Mo. App. 379

Smith v. Settle

128 Mo. App. 379 | Mo. Ct. App. | 1908

ELLISON, J.

Defendant’s wife, in her lifetime inherited the sum of $1,131.50. Defendant received the money in May, 1890, and he used it as his own, but he never had the written consent of the wife. The wife died intestate in July, 1904, and plaintiff was appointed administrator of her estate and began this action in October, 1905. Among other things, the petition alleges that after the death of Ms wife defendant concealed from the heirs the facts concerning said moneys, for the purpose of preventing them from collecting. The answer was a general denial and a plea of the Statute of Limitations. The judgment in the trial court was for the plaintiff.

When the defendant received the money belonging to his wife without her consent in writing, it remained hers and he held it in trust for her. The period of limitation began to run the day he received the money. But as she was under coverture and died under that disability, another statute applied to such case (sections 4279 and 4281, Revised Statutes 1899) which gave her representative one year from her death. The latter section reads that “If any person so entitled to sue die before the expiration of the time herein limited for the commencement of such suit, if such cause of action *383shall survive to his representatives, his executor or administrator may, after the expiration of such time and' within one year after such death, commence such action, but not after that period.” Under this section it is imperative that the action be begun within one year. [Rosenberger v. Mallerson, 92 Mo. App. 27.]

Concerning real estate the extended period for suit after the removal of disability is three years (section 4267, Revised Statutes 1899) and the Supreme Court held that, though the wife is under coverture, the action may accrue to her even as against the husband; though if she allow the period of limitation to run without bringing an action against him and dies, the action is yet saved to her heirs or those claiming by or under her, for three years. And so even if the period of limitation had not run when she dies, yet only three years are allowed after her death in which to commence the action. [Reed v. Painter, 145 Mo. 341.] That case is authority for the position we have taken as to personalty where one year is the period allowed after death. And so it was considered by the St. Louis Court of Appeals in Rosenberger v. Mallerson, supra.

But it is said by plaintiff that defendant became a trustee for the deceased wife and that limitation does not run in such case, and that the statute aforesaid requiring suit to be brought within one year after death does not apply. It is true where the husband appropriates the wife’s money inheritance, as here, she can treat him either as a trustee, or simply as a debtor. [Winn v. Riley, 151 Mo. 61, 67.] But if treated as a trustee it is not such a trust as is exempt from the operation of the Statute of Limitations. It was not an express trust; it was an implied or constructive trust, and the statute ruus against such from its creation. [Landis v. Saxton, 105 Mo. 486; Reed v. Painter, 145 Mo. 341, 356.]

It is however suggested by plaintiff’s counsel in *384support of the allegation in the petition to which we have referred, that conceding the statute would ordinarily run, yet there was a fraudulent concealment by defendant which prevented its running in this case under our decision in State ex rel. v. Hawkins, 103 Mo. App. 251. We have examined the evidence relied upon to establish concealment and find it falls far below what is required. There was no concealment of the estate or that defendant had taken possession of it. The existence of the estate was known to the claimants. One witness testified that defendant told him that “they” (he and his wife), had spent most of the money. But surely such character of evidence would not justify claimants in lying by without making further investigation. It does not appear that an investigation was had as to how much of the money which “they” spent may have been expended by him for his private or individual purpose. The evidence fails to show a fraudulent concealment. There was every opportunity for claimants to have made investigation. It was their duty to be diligent in that respect. [Callan v. Callan, 175 Mo. 346; Shelby Co. v. Bragg, 135 Mo. 291.]

Finally it is said that the statute should not be applied since this action was begun within one year from the time the plaintiff was appointed as administrator, and that limitation only begins to run against an administrator from the time of his’ appointment, citing Polk’s Admr. v. Allen, 19 Mo. 467. But the specific statute with which we are here concerned affirmatively declares that the administrator must bring the action within one year after the intestate’s death and not afterwards. The general exception invoked by plaintiff does not apply to this statute.

The result of our consideration is a reversal of the judgment and it is so ordered.

All concur.