Collamore v. Wilder

1. Claims Against Estate op Decedent ; Laches of Claimant; Waiver of Light. Where A. exhibits his demand against the estate of a decedent, by causing a notice and statement of the amount due him to he served upon the administrator, and thereafter takes no further steps to have his demand allowed or established during the administration of the estate, and such administration continues over four years from the date of the letters of administration granted in the case, and said administrator makes a final settlement of such estate, which final settlement is approved by the probate court, and thereon the said administrator is finally discharged, and no claim is made of error, fraud, or concealment as to said final settlement, or the discharge of the administrator, A. cannot maintain his action in the district court against the heirs of the deceased, to whom lands have descended from him, to have his demand adjusted and allowed, and said lands sold to satisfy the same. 2. Appointment op Administrator ; Actual Notice; Omission to Publish Notice. Where a creditor of a decedent has actual notice of the appointment of an administrator, treats with such appointee as the legal administrator, and exhibits to him his demand against the estate of such deceased person, he cannot thereafter complain that he has been misled or prejudiced by the neglect of such administrator to give the notice required by $ 74 of ch. 91, Comp. Laws of 1862. 3. Administrator ; Powers and Duties. An administrator is merely the agent or trustee of the estate of the decedent, acting immediately under the direction of the law prescribing his duties, regulating his conduct, and limiting his powers. 4.--Agreement with Creditor. An agreement between a creditor of an estate and the administrator thereof, to the effect that no further action should be had in Kansas toward the establishment of a demand of the creditor, beyond legally exhibiting to said administrator said claim, until the determination of a suit pending in another state on the same claim against the executor of the same estate, and that the determination of said suit in such other state should settle the matter here, is not binding on the estate, nor on the heirs of said estate. 5. Will ; Direction to “Pay all Just Debts.” The formal and general language in a will, requiring that all the just debts of a deceased should be paid by his executors out of his estate, cannot be successfully invoked in behalf of a person who, having a just claim against such testator, neglects the legal proof of his demand until more than three years have elapsed after the issuance of letters testamentary, and until after the estate has been finally settled according to the provisions of law, and the administration closed.

Error from Douglas District Court. Action commenced by original petition filed in the district court by John H. Collamore as plaintiff, against John II. Wilder, as administrator of the estate of George W. Collamore, deceased, and the widow and children of said decedent, as defendants, to establish a demand against said estate, and subject certain lands in the hands of said widow and children to the payment of such demand. The defendants demurred, “for that said petition does not state facts sufficient to constitute a cause of action.” The district court, at the April Term 1876, sustained the demurrer, and gave judgment against the plaintiff for costs. The plaintiff brings the case here. The averments of the petition are fully stated in- the opinion. Did the petition state facts sufficient to constitute a cause of action ? Of course the petition is taken as confessed, for the purpose of this debate. The nature of the plaintiff’s claim, grew out of the fiduciary relations of the deceased to him. The funds for which he brought his action were received by the deceased, as agent and trustee for his brother. During the time these funds were being collected by the deceased, the plaintiff was resident in the Empire of Prance for some seventeen years, up to and prior to November 1863; and during all this time no settlement was ever had by and between the plaintiff and deceased, and no demand for any such settlement was had so far as the Kansas estate is concerned, until July 25th 1866. Said Geo. W. Collamore died August 21st 1863, leaving all the defendants his heirs-at-law, save Wilder, who is administrator. The heirs-at-law at once removed from Kansas to Massachusetts, and ever since have resided away from Kansas. The deceased left a will whereby he appointed Gov. Andrew of Massachusetts, where the bulk of his estate was situated, his executor. This will was probated in Douglas county, on the 3d of May 1864, and Gurdon Grovenor duly appointed administrator with-the-will-annexed, but he never gave the notice required by law of his appointment. January 29th 1864, Gov. Andrew, in Massachusetts, duly qualified as executor under the will. Two legal representatives of the estate of the deceased then existed in July 1866. But before this, in the courts of Massachusetts, the plaintiff had commenced proceedings to establish his claim against his brother’s estate, and these proceedings were pending when the claim was exhibited and demand made here to the legal representative in July 1866. When this was done, as was to be supposed, it was conceded that there ought not to be two litigations prosecuted for the same matter against really the same parties, for the heirs-at-law at the last are the parties directly interested in the amount of claims proven against the estate of the deceased. So it was mutually agreed by the parties that no litigation should take place here, but that the rights of the parties should be determined in the pending suit in Massachusetts. On the 12th of March 1867, Grovenor made a final settlement of his duties here, and was formally discharged in May 1868. The suit in Massachusetts was not determined until February 1874, and after applying all the estate in Massachusetts to the satisfaction of the amount thereby found due the plaintiff, there is still due the plaintiff the sum of over $20,000. The Kansas estate of the deceased, so far as the realty is concerned, is not touched. May 22d 1875, defendant Wilder became administrator de bonis non of the deceased, (there having been no other administrator since the discharge of Grovenor,) and thereupon this suit was begun. 1. In the light of the foregoing facts, I suppose the question here is this: Is the debt or demand of plaintiff barred by the statute of limitations? As the last payment made by the deceased was in 1862, and as the funds in his hands were held by him as trustee, it will be conceded that up to the appointment of Grovenor in 1864 the statute had not run. The general statute would not begin to run until a demand, the funds being held in a fiduciary capacity by the deceased for the plaintiff: 12 Mo. 3,8; 3 Johns. Ch. 190, 216; 7 Johns. Ch. 122; 6 Hill, 540; 23 Wend. 528; 33 Conn. 67; 6 Cal. 31. The demand made upon the administrator, Grovenor, was in July 1866. Hence no action could have been maintained by the plaintiff until that time, and the general statute of limitations began then to run. But in March 1867, Grovenor made settlement of his actions as administrator, and in May 1868 was discharged, and no successor was appointed until the commencement of this action, and all the heirs-at-law of the deceased were continuously out of the state. There was no one to sue. Beyond dispute then, the general statute had not run when this action was commenced. 3 Kas. 399. 2. No notice of his appointment as administrator was given by Grovenor, on his appointment in May 1864, as required by law. His appointment did not start the statute of limitations found in the executors act until such notice was given; 3 Kas. 399; 19 Mo. 259; 19 Cal. 85. 3. The claim of plaintiff below was duly and properly exhibited to the administrator, July 25th 1866. It does not appear whether the administrator made due return thereof to the probate court or not: the presumption must be that he did. The claim or demand being thus exhibited, suspended the statute of limitations: 36 Mo. 96;. 47 Mo. 299; 19 Cal. 98. And again—the claim once legally exhibited to the administrator cannot be barred. The statute nowhere requires it to be followed at once by an adjudication; and the petition shows ample reason why no further steps were taken in Kansas. Surely it needs no words to show that we are not pleading a promise of the administrator to revive a stale demand. And if the court will look at Putnam v. Collamore, 109 Mass. 509, it will see some of the reasons for the long delay in Massachusetts, and will be fully apprised of the nature of this litigation in that state. 4. The agreement made by Grovenor with plaintiff, when the account was presented, that the adjudication in Massachusetts should determine the amount of the liability of the estate, estops the defendants from any defense, unless it is one grounded in the fraudulent acts of the plaintiff. At least it estops them from any defense save one that' tests the merits of the claim. Both parties acted upon the agreement. The-matters in dispute between the representative of the deceased and the plaintiff covered very long and multiform transactions; and without stopping now more than to refer to the record made in Massachusetts, it is sufficient to say that that record shows how tedious was the work of getting the plaintiff’s claim from the tangle in which the decedent had involved them. I do not care to insist that that adjudication is conclusive upon the estate here, as to amount, or liability, unless the defendants chose to so regard it. But the fact that the litigation to settle these matters was then pending in Massachusetts, and that both sides a*greed to have proceedings here await that decision, makes any attempt to defeat a. full inquiry here of the merits of plaintiff’s claim inequitable. The doctrine of estoppel is very well settled in cases-of this kind. 2 Pars, on Contr., ch. 4, §4, p. 801. In Home Ins. Co. v. Balt W. H. Co., Cent. Law Journal, March 2d 1877, page 206, the supreme court of the United States seem to hold such an agreement valid. (33 Iowa, 505; 50 N. Y. 538.) Within about nine months from the day the claim was-exhibited to him, the administrator made a final settlement in the probate court of his acts, and in less than two years-after the exhibition of the claim, he obtained a final discharge. 5. The will left by the deceased required that all his “just-, debts ” should be paid by his executor out of his estate. Does the statute of limitations run against such a provision? If the debt is just, does not the law hold this provision for its payment beyond statutes of limitation of all kinds? Is it riot in the nature of a direct disposition of the decedent’s es-« tate, for a purpose clearly conscionable, and worthy of the support of the law? In Rosenthal v. Reniek, 44 111. 202, 206, a clause of a will something like the one at bar, is commented on. The court say it shows that- the testator “intended his devisees should derive nothing from his bounty, until his creditors had received their dues.” That case has many features like the one before the court, and the general tenor of the reasoning fully confirms many of the considerations hereinbefore advanced. The equities involved, to my mind, are all and entirely with the plaintiff. As stated by counsel for plaintiff, the question presented is, was the demand of plaintiff barred by the statute of limitations? The statute applicable to the case is the statute of 1862. Whether the limitation is fixed by § 21 of the civil code, or by § 2 of ch. 27 of laws of 1862, is immaterial in this case. Counsel for plaintiff assumes that this claim grew out of fiduciary relations between George W. Collamore deceased, and John H. Collamore; that such fiduciary relations are sufficiently pleaded, and that the operation of the statute of limitations was suspended. The only trust exempted- from the bar of the statute of limitations is direct or express trust; Angelí on Lim., §§166,178; 6 Johns. Ch. 110; 9 Pick. 242. It will hardly be contended that the claim exhibited to Grovenor as the administrator, and. which was the basis of this action, partakes of the nature of an express trust. But it may be claimed that the trust involved in the relations between the parties is an implied trust—that the operation of the statute of limitation was suspended until demand, and that the facts operating to suspend the statute are sufficiently pleaded. An effort was made in the petition to plead payment, absence of demand, and a new promise—each and all being intended to take the case out of the statute. We claim that such effort has not been successful. Again: Authorities are numerous, holding that no acknowledgment, however unequivocal, and no promise, however explicit, made by an executor or administrator, will operate to take a case out of the statute. Chancellor Kent uses this language: “Is the heir to be charged, at the mere pleasure of the executor, with the debts of the ancestor? Does it rest entirely in the discretion of the executor whether the heir is or is not to be permitted to use the statute of limitations which the law has provided as a means of defense against a simple contract demand, which, perhaps, he knows to be unjust, though his ancestor has not left him the requisite proof?” 6 Johns. Ch. 273; Angelí on Lim., §§263, et seq.; 7 Conn. 176; 1 Wharton, (Pa.) 66; 12 Wheaton, 565. The administrator takes only such powers as are conferred by law. Those who deal with him are bound to take notice of the extent of his powers, and of the limitations imposed by law upon the exhibition, presentation and proof of claims. It is not within the power of the administrator to enlarge the rights of creditors in the matter of the exhibition and proof of demands. But even if the administrator had the power to make a promise which would take the case out of the statute, the petition alleges no such promise. The agreement alleged contains no express promise to pay. It contains no acknowledgment of existing liabilities. It has none of the elements of the acknowledgment and promise contemplated by §31 of the civil code of 1862; nor is it the positive and unqualified acknowledgment of liability, with the clear, unequivocal and explicit promise to pay, which Mr. Justice Story holds necessary to remove or suspend the bar of the statute. 1 Pe-' ters, 351; Angelí on Lim., §§230, 231. If it should be held that a specific demand was necessary to put the statute of limitations in operation, and that such demand must have been made upon Grovenor, the administrator in Kansas, then we claim that such demand was made on the 25th of July 1866, when the claim was exhibited to him by plaintiff; and the statute, beginning to run from that time, was not suspended by the discharge of Groven’or as administrator’in May 1868. We are aware that in the case of Tobey v. Allen, 3 Kas. 399, this court held that the death of a debtor operates to suspend the statute of limitation until an administrator is appointed, because there must be a party to be sued. But the reason of that decision does not apply in this case. Upon the death of a debtor there is a period during which ■ certain persons named in the statute are preferred in the matter of taking out administration—when creditors, as such, have no right to apply for, or procure administration — when by the operation of our laws, the right of creditors to sue is absolutely suspended. In the case at bar, plaintiff was in court in Douglas county, having exhibited • his demand to the administrator. It was his duty to have followed up his exhibit of his claim with his proof; or if delayed in the production of his proofs, to have asked a continuance of the administration for the purpose of producing such proofs. The purpose of the notice of the final settlement provided for by § 194 of ch. 91, laws of 1862, was, among other things, to enable creditors to make proof of claims duly exhibited. There is no claim that such notice was not given. Further, it was within the power of plaintiff, upon a proper showing, and before his claim was barred by the statute of limitations, to have procured the appointment of an administrator cle bonis non. Upon these considerations the court will not hold that the discharge of Grovenor operated to suspend the statute. If these views be correct, the statute became a bar on July 25th 1868, or July 25th 1869, as the court may regard the contract a Massachusetts or a Kansas contract. Suit not having been brought until 1875, the question of the locus of the contract is not material. But in our view of this case there is no question of demand involved. The allegations of agency or trust are, in our view, not sufficient, under the rules of pleading. It will be conceded that if a trust existed which had grown out of tortious conduct on the part of the deceased, no demand would have been necessary. There is no allegation in the petition which excludes the idea of such a trust; but on the other hand, it appears upon close inspection that the pretended claim, if it really existed, was of this character. Our view of the claim presented by the pleading, is, that it is an account as to which a perfect right of action existed at the date of the last item; and, admitting the sufficiency of the allegation of payment in 1862, that the statute was operating on January 1st 1863, eight months prior to the death of George W. Collamore; that under the decision in Tobey v. Allen, the statute was suspended from August 21st 1863, to May 3d 1864, when it again began to run; and that the bar was complete on September 8th 1865, if the contract was a Massachusetts contract, and on September 8th 1866 if the contract was a Kansas contract. 41 Penn. St. 482. It is claimed by counsel for plaintiff, that the exhibition of the claim to Grovenor, administrator, suspended the statute of limitations. If by such proposition it is meant that the due exhibition of a claim suspended the statute limiting the time for proving up in the probate court, claims against an estate, the correctness of the proposition will be conceded. All the cases cited by counsel in his brief go to this point only. But we deny that the exhibition of a demand under the executors-and-administrators act has the effect to suspend the general statute of limitation. The reasoning of this court in Tobey v. Allen, supra, seems to us conclusive upon this point. Again, it is claimed by counsel for plaintiff, that the clause in the will of George W. Collamore directing that all his just debts should be paid out of his estate, created a trust against which the statute of limitations would not run—and 44 111., 202, is cited. If such was the meaning of the case cited, it is, we submit, against reason and the weight of authority. 5 Selden, 398; 4 Selden, 362, 370; 7 Conn. 175.