State ex rel. McGeever v. Shires, 39 Mo. App. 560

State ex rel. McGeever v. Shires

39 Mo. App. 560 | Mo. Ct. App. | 1890

Ellison, J.

This suit was instituted July 5, 1887, upon the bond of Harvey Shires, public administrator of Atchison county, given March 3, 1874. The suit was dismissed as to Shires and Stivers, who are dead, and is pending against the sureties.

James McG-eever, the husband of one and father of another of the relators, who had left home in New York in 1855 on a supposed peddling expedition to the West, died August 23, 1871, in Atchison county, Missouri, without the knowledge of relatives, and leaving, 'as- was supposed in Atchison county, no known heirs. He left an estate amounting to about six hundred dollars which was first placed in the hands of Jerre Purdom, public administrator, and afterwards, on Purdom’s election as probate judge, the estate was placed in the charge of Harvey Shires, the newly elected public administrator. Notice of the grant of letters of administration in due *565form and a general notice, intended as a notice to unknown heirs, was given by advertisement in the “Atchison County Journal,” but no proof of notice was ever made in the probate court, and no copy of either notice was ever filed there, nor do the records show any reference to the same. And Shires gave no public notice on assuming control. Both public administrators had made annual settlements during their respective administrations, and Shires, on the second of January, 1887, made what he called a final settlement, showing a balance in his hands of $347.14. The settlement and finding of the court show there are no known heirs, but neither public administrator nor probate court took any steps to dispose of the money. They simply ascertained the amount in his hands without taking any further steps. Shires, for a year after-wards, did business as public administrator, but did nothing further in the McGeever case, and finally died in 1884, without having accounted for the money. Defendants pleaded the statute of limitations, three, five and ten years, the court gave declaration of law under the ten years’ plea, and found for defendant; so that the principal point is the statute of limitations.

Conceding but not deciding, that notice of the grant of letters of administration and notice to the unknown heirs was necessary to set the general statute of limitation in motion as distinguished from administrative limitation, we will consider the question presented, whether there has been proof of such notices. Though no copy of these notices was filed in the clerk’s office of the probate court as required by sections 88, 89 and 93, Revised Statutes, 1879, yet such notices were shown to have in fact been given and the question is, can proof other than the affidavits which have been filed in the cleric’ s office be allowed. The trial court permitted such other proof in this case and, as we think, properly.

It is true that section 90, Revised Statutes, provides that, “ The affidavit of the publisher or editor, so *566filed and recorded, or a certified copy of' the record thereof, shall be received in evidence in all the courts of this state.” Bnt we can see no reason why this should exclude other competent evidence of the fact. The statutory mode of proof was not intended to be exclusive. The case of Henry v. Esty, 13 Gray, 336, is in point. The Massachusetts statute is similar to ours. It appeared in that case that no affidavit of the administrator, that he had given notice of his appointment as required by statute had been filed and recorded as was also required by statute, but the trial court, against objection, allowed the‘fact to be proved by witnesses and the action was sustained by the supreme court. That statute provided, as does ours, though not in the same words, that such “filed and recorded” notice “shall be admitted as evidence of the time, place and manner in which the notice was given.”

Objection is taken to the sufficiency of the notice itself. It is as follows :

“legal notice.

“Notice is hereby given that James McGeever, a native of Ireland, of dark complexion, about five feet, eight inches high, and about forty-five years of age, died in Atchison county, Missouri, on the twenty-fifth of August, 1871, and that the appraised amount of his estate is $562.59.

“ Jeeke Puedom,

“Public Administrator.”

This is in compliance with section 93, Revised Statutes, and though not addressed to any one, it does not appear to be required by the statute that it should be.

Those cases cited us by appellant that limitation does not run in favor of a trustee of an express trust until the trust is closed or disavowed have no application here. In this case final settlement was made and approved- January 2, 1877, and this suit was instituted *567July 5, 1887, being more than ten years thereafter. There can be no question that a cause of action accrued to the heirs at the date of the final settlement, and this even though there was no order of distribution. State v. Matson, 44 Mo. 305; Moorehouse v. Ware, 78 Mo. 100. See, also, State ex. rel. v. Grigsby, 92 Mo. 419. The fact that the administrator could retain the amount found due the estate on final settlement before turning it ovér to the state under sections 258, 265, Revised Statutes, does not alter the time when the cause of action accrued to their heirs.

We have examined other points presented but think them not well taken. Our opinion is the cause of action was barred by the statute, and we affirm the judgment.

All concur.