Watkins v. Donnelly

88 Mo. 322 | Mo. | 1885

Sherwood, J.

In the probate court of Jackson county a claim was presented against th.e estate of which the above nameda executors had charge. It was as follows :

“'Estate of Mary A. Troost to J. Q. Watkins, Dr.

“ To services rendered from July, 1869, to February, 1872, $2,500.”

This demand was allowed in the probate court to the amount of $2,000, and on appeal to the .circuit court, where the cause remained some years before being tried, the demand was there allowed in the sum of $2,375, and the executors have appealed here.

I. The statute requires that the person about to exhibit a claim against an estate shall serve upon the executor or administrator a notice, in writing, stating the nature and amount of the claim with a copy of the .instrument, or writing, or account upon which the claim is founded. R. S., 1879, sec. 188. While it is true that in probate courts formal pleadings are not requisite, .still common justice and ordinary honesty require that .an account or statement,of a matter, about which those in charge of the estate probably know nothing, should, when presented for allowance, at least, be sufficiently ■specific to apprise them of'the facts involved, so that they can be prepared properly to protect the interests ■confided to their care, and thus prevent unjust demands from swallowing up the estate. It is difficult to conceive -of a statement more vague than the one presented in this case. What the services were for, what was their-nature, whether rendered on a salary, on a contract, general or special, or for what they were reasonably worth, or just when the “ services ” began, or just when they ended the paper filed does not show. Such attempts at statements or accounts have frequently met with rebuke at the hands of this court. Casey v. Clark, 2 Mo. 11; Wathen v. Farr, 8 Mo. 324; Brashears v. Strock, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508.

Besides all that, when the cause reached the circuit court, where, under the statute, it was to be tried de novo and the executors, as they had the right, moved for a more specific and definite statement under the rulings in this court (Bush v. Diepenbrock, 20 Mo. 568; Brashears v. Strock, supra; Gilmore v. Dawson, 64 Mo. 310; Rowland v. Railroad, 73 Mo. 619) their motion was denied. This ruling was altogether erroneous, and cannot be permitted to stand. If, in ordinary cases, cases between living parties, it be necessary that a substantial statement of the facts constituting the ground of recovery be set forth in order that the defendant may make necessary preparations for his defence, then a fortiori is such statement necessary when like recoveries are sought against the estates of the dead. As the demand in question was insufficient, and as the trial court refused to' have the same made sufficient by amendment, the objection of the defendants to the introduction of any evidence was well taken, and should have prevailed.

II. Since there was no evidence as to a special contract between plaintiff and the testatrix that she would pay him a salary of one thousand dollars per year as her agent or business manager, the first instruction given at the instance of the plaintiff is plainly erroneous.

III. The evidence offered on the part of the plaintiff is very vague and unsatisfactory, and it is difficult, if not impossible, to tell just what services were rendered or how much they were really worth. And in this connection it is not to be forgotten that plaintiff neither made, kept nor presented an account for his “services,” during the two and one-half years and more that said services are now claimed to have been rendered. The failure in this respect affords some evidence which is adverse to the claim of plaintiff. Aull Sav. Bk. v. Aull's Adm’r, 80 Mo. 199. As far as I am able to judge from the evidence the allowance was nothing less than exorbitant.

In order that a fair trial may be had, the judgment is reversed and the cause remanded.

Judge Black not sitting, the other judges concur.