Reed v. Reed

68 S.W. 385, 94 Mo. App. 590, 1902 Mo. App. LEXIS 605

• Court: Missouri Court of Appeals
• Decided: May 13, 1902
• Status: Published

Opinion

BLAND, P. J.

Appellant filed the following complaint in the probate court (omitting’ caption) to-wit:

“Now comes the undersigned, Jacob Reed, and complaining in the above-entitled matter, alleges that said deceased was the payee and holder of a certain promissory note, executed by this complaint, dated October 29, 1892, for the sum of $1,858.50, due three years after date, with interest at the rate of six per cent per annum from date, payable annually.

“This complainant alleges that he has paid various sums and amounts on said note that have never been credited' thereon, and for which he has received no* credit from said estate.

“That he is entitled to the following credits on said note, which have been duly paid by complainant, and for which he-has never received any credit, to-wit:

“Nov. 23, 1893. By cash on said note.. .$200.00

“July 15, 1896. By threshing 256 sacks wheat at eight cents................ 20.4S

“July 25, 1897. By threshing 287 sacks wheat at eight cents............... 22.96

“July 17, 1898. By threshing 296 sacks wheat at eight cents.............. 23.68

“1897 and 1898. By sawing wood by steam, two days at $5............. 10.00

“By 500 feet of lumber at two cents. .. . 10.00

“Wherefore this complainant prays the court by its order,, duly entered of record, to give conlplainant credit on said note, for the said sums, on the dates and days aforesaid, and. for all other necessary relief,” to which complaint complainant made oath.

The answer of Seed’s administratrix is as follows:

“Defendant, Augusta Eeed, states that she is now and was at all times herein mentioned, the duly appointed and qualified and acting administratrix of the estate of B. E. Eeed, deceased, under and by virtue of the orders and judgments of the probate court of said county of Franklin, from and after the twenty-fifth day of January, 1899. .At which date the said probate court, of the said county of Franklin, duly granted to her letters of administration of the estate of said B. F. Eeed; and that, as such administratrix, she duly published notice within thirty days from the date of the grant of said letters of administration, in a newspaper, published in the said county of Franklin, for more than three weeks; that such letters of administration on the estate of B. F. Eeed, deceased, had been granted to her by said probate court, stating the date thereof, and requiring all persons having claims against said estate, to exhibit them for allowance to her as such administratrix, within one year after date of said letters, or they may be precluded from any benefit of said estate and that if such claims be not exhibited within two years from date of said letters, to be forever barred.

“And defendant further says that the claim, account or demand, set forth in the complaint, was not exhibited for classification or presented by plaintiff in this court, for allowance, or any notice thereof given to this defendant within two years next after the issuing and granting of letters of administration to this defendant on said estate by the said probate court; and so the said Augusta Reed, as such administratrix says that the account or demand, mentioned in the complaint or statement herein, was barred by the statutes in such cases made and provided, at the time when the same was presented to this court for allowance, as well as at the time when notice thereof was given to the defendant for presentment to the court for allowance. And the probate court has no jurisdiction to hear and determine said claim.”

The probate court on a hearing rendered judgment for the administratrix, from which judgment complainant appealed to the circuit court where the cause was submitted to the judge on the following agreed statement of facts (omitting caption) to-wit:

“It is agreed by and between the parties hereto, that tin's cause is to be submitted to the circuit court, upon the following-agreed statement of facts:

“It is agreed that the allegations in complainant’s complaint in said cause, are true, and that complainant is entitled to a finding and allowance of the credits claimed in the complaint, unless barred by the two-year statute of limitations, or unless the probate court had no jurisdiction over the subject-matter of this controversy. It is further admitted that the allegations of fact contained in the defendant’s answer filed herein, are true.

(Signed) “James Booth,

“Attorney for Jacob Reed.

“Jesse Sohaeer,

“Eor B. E. Reed’s Estate.”

The circuit court ruled that the probate court had • no jurisdiction of the subject-matter of the complaint and rendered judgment for the administratrix. A timely motion for new trial proving of no avail the complainant appealed.

The proceeding is not to establish and have classified a money demand against Eeed’s estate, but, as the petition prays, is a proceeding to have ascertained and credited on appellant’s note, which he gave to Eeed in his lifetime, certain payments that he made to Eeed on the note but which Eeed failed and neglected to indorse as credits thereon. In effect, the petition is a bill in equity to enforce the specific performance of the implied obligation of Eeed to indorse the payments of the note as they were made. A court of equity will interpose, in a proper ease, and decree a specific performance of an express or implied contract when no actual injury has as yet been sustained. 2 Story’s Equity Jurisprudence, sec. 730. But the appellant has not presented a proper case for equitable interposition, since he has an adequate remedy at law to plead his partial payments whenever he is sued on the note. But supposing he is entitled to equitable relief, the probate court, being one of limited powers, was without jurisdiction to grant such relief. Est. of Glover & Shepley, 127 Mo. 153; Patterson v. Booth, 103 Mo. 402; Butler v. Lawson, 72 Mo. 227.

The appellant misconceives the scope of the jurisdiction conferred on the probate court in respect to the estates of deceased parties. These courts have no jurisdiction to enforce or adjudicate a demand held by an administrator against a debtor of the estate. Stiles v. Smith, 55 Mo. 363. Their jurisdiction, as to demands, is confined to the allowance of demands of creditors of the estate and to allow credits to the administrator for unavailable assets which he had inventoried as a part of the estate and to allow him credit on any such assets that have been inventoried for more than is actually due. Had the respondent, as administratrix, made the application to the probate court for a reduction of the amount for which the note had been inventoried to her on account of the partial payments made by appellant, there is no doubt that the court would have had jurisdiction to make the reduction and in this manner indirectly give the appellant the benefit of his payments.

A very different question is presented by the petition of appellant. As .between him and the administratrix, in respect to demands, the jurisdiction of the probate court is confined to the adjudication of such a one as might be claimed by the appellant to be due to him from the estate after allowing the estate all just credits and set-offs. No length of time would preclude the appellant from pleading his payments when sued on the note, they co-exist and run with the. note and there is no statute that bars them that will not at the same time bar the note itself.

The judgment is affirmed.

Barclay and Goode, JJ., concur.