This is an original proceeding in certiorari, commenced in this court, wherein the relators seek to quash the opinion, judgment and record of the St. Louis Court of Appeals in a certain cause or proceeding, lately ruled on appeal by said Court of Appeals,
entitled "Katherine Dean, Plaintiff and Respondent, v. John McH. Dean and Eugene G. Dean, Executors of Estate of Owen M. Dean, deceased, Defendants and Appellants." The ground upon which the quashal of the opinion and record of said Court of Appeals is sought by relators is that the opinion and decision of that court is in conflict with certain prior and controlling decisions of this court. The opinion of the respondent Court of Appeals in the above mentioned cause or proceeding is reported at length in Dean v. Dean, 1 S.W.2d 235.
The opinion of respondents discloses that the said proceeding originated in the Probate Court of the City of St. Louis upon the filing therein by Katherine Dean of a claim or demand against the estate of Owen M. Dean, deceased, which estate was in process of administration in said probate court. The relators herein are the duly appointed and acting executors of said estate. Respondents' opinion recites that the claim or demand of Katherine Dean is for the value of personal services claimed to have been performed by said Katherine Dean in nursing and caring for one Mrs. Mary Monaghan, an aged sister of the decedent, Owen M. Dean, at the decedent's instance and request. The demand of Katherine Dean was disallowed by the Probate Court of the City of St. Louis, and from the order of disallowance the claimant, Katherine Dean, appealed to the Circuit Court of the City of St. Louis, in which latter court the proceeding was tried de novo before a jury, resulting in a verdict in favor of the claimant in the sum of $4062, and judgment was entered in conformity with said verdict against the decedent's estate. The executors of said estate were allowed an appeal from the judgment so entered to the St. Louis Court of Appeals, which latter court, by its opinion and decision under review herein, affirmed the judgment of the circuit court. The opinion of respondents discloses that the merit of claimant's demand was tried and submitted to a jury in the circuit court upon substantial evidence tending to prove that the claimant. Katherine Dean, was employed by decedent to nurse and care for his sister, Mrs. Monaghan, and that the reasonable value of claimant's services approximated the amount allowed her by the verdict of the jury. The question of the merit of claimant's demand against decedent's estate is therefore wholly one of fact, and that question was passed upon and determined by the jury as the exclusive triers of the facts; hence, such question of fact is not involved, or to be reviewed and considered, in the original proceeding now before this court. The opinion of respondents further discloses that it was strenuously urged in the Court of Appeals by the defendant executors of said estate (who are the relators here) that a peremptory instruction, directing the jury to find for the defendant executors, should have been given by the circuit court, for the reasons (a) that the demand of claimant, Katherine Dean, was not presented to the probate court for allowance within one year after the granting of
letters testamentary on the said estate of decedent, and (b) that claimant failed to exhibit her demand to the executors of said estate for allowance within one year after the date of the granting of said letters testamentary; wherefore, insistence was made by the defendant executors that claimant's demand is barred by the special statute of limitation, sometimes called the Statute of Non-Claim (Secs. 182 and 186, R.S. 1919). Respondents concede (in the opinion) that the questions so raised by the defendant executors are dependent upon the construction of certain sections of our statute respecting the administration of estates of decedents, and relating particularly to the matter of the exhibition, presentment and allowance of demands against the estate of a decedent, as said sections of the statute are set out in the Revised Statutes of Missouri 1919. The pertinent sections of the statute so construed by respondents are quoted in the opinion, as follows:
"Sec. 182. All demands not thus exhibited in one year shall be forever barred, saving to infants, persons of unsound mind or imprisoned, and married women one year after the removal of their disability, and said one year shall begin to run from the date of the granting of the first letters on the estate where notice shall be published, the first insertion within ten days after letters are granted; and in all other cases said one year shall begin to run from the date of the first insertion of the publication of the said notice.
"Sec. 185. Any person may exhibit his demands against such estate by serving upon the executor or administrator a notice, in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which the claim is founded; and such claim shall be considered legally exhibited from the time of serving such notice, or a waiver of such notice, in writing, by the executor or administrator.
"Sec. 186. No claimant shall avail himself of the benefit of the preceding section unless he shall exhibit his demand to the administrator in the manner provided by law, for allowance, within one year after the date of granting of the first letters on the estate, or the first insertion of the publication of notice of the grant of such letters as provided for in Section 182 of this article, nor unless he shall within the said time also present his said demand to the probate court.
"Sec. 194. Any person desiring to establish a demand against any estate shall deliver to the executor or administrator a written notice containing a copy of the instrument of writing or account on which it is founded, and stating that he will present the same for allowance at the next regular or adjourned term of court.
"Sec. 195. Such notice shall be served on the executor or administrator by delivering to him a copy thereof, or by leaving a copy of the same at his usual place of abode with some member of his family over the age of fifteen years, ten days before the beginning
of such regular or adjourned term of the court, and may be served by any sheriff or constable or by any competent witness, who shall make affidavit to such service.
"Sec. 196. The executor or administrator may appear in court, or, by writing, waive the service of any such notice."
The construction given by respondents to the several quoted sections of the applicable statute, the reasoning of the respondents in arriving at such construction, and the evidentiary facts found by respondents as the basis of the legal conclusions reached, are thus stated in respondents' opinion under review herein:
"There is no dispute but that the one-year period of limitation for the filing of claims against the estate of the deceased expired on January 5, 1922. As to the warmly contested issue respecting the timely filing of the claim in suit, the facts, as fixed by the verdict of the jury, are that the original claim was duly exhibited to defendants as executors on such date, and that on the same day an identical copy of the claim so exhibited was filed in, or presented to, the probate court. It would seem, however, that the affidavit of the officer as to the fact of service was not made by him until January 6, 1922, at which time he returned the original document to the then attorney for plaintiff, by whom such original claim was also filed, presumably on the same day, in the probate court.
"Before coming to a discussion of the precise points now in controversy, the exact status of the case before us may be considerably clarified by the elimination of certain features as to which no issue is, or may be, made. For instance, it may not be questioned but that there was a full compliance by plaintiff with Section 185, supra, inasmuch as the claim was in writing, stated the amount and nature thereof, and was duly exhibited to both executors within the year, as required by Section 182. It must also be borne in mind that the exhibition prescribed by Section 185 is for the purpose of classification of the claim, regarding which there could be no just ground for controversy between the parties in the instant case. From the very nature of the claim here involved it could never have risen to the dignity of a higher class than the fifth (Sec. 181, R.S. 1919); and having been exhibited within the last six months of the year, it arbitrarily fell into the sixth class. Thus it is manifest that no rights were foreclosed to the estate by reason of such belated exhibition, and that plaintiff herself could be the only one to suffer thereby, in the event the assets of the estate should ultimately prove to be insufficient to meet all demands allowed against it.
"With the issue of classification out of the way there next arises for consideration the question of timely exhibition andfiling for allowance, as required by Section 186. Such section by its terms relates to Section 185 (Home Insurance Co. v. Wickham, 281 Mo. 300, 219 S.W. 961), and, in substance, provides that the claim shall be exhibited and filed for allowance within the year. As we view the
case, a substantial compliance by plaintiff with Section 186 was shown. The claim, having been sufficient in form, as required by Section 185, and having been both exhibited to the executors of the estate, and filed in the probate court before the one-year period of limitation had elapsed, was duly presented to the court, in the sense of the statute, from the date of its filing, which was within, though on the last day, of the year. [Rassieur v. Zimmer, 249 Mo. 175, 155 S.W. 24; Keys v. Keys, 217 Mo. 48, 116 S.W. 537; Home Insurance Co. v. Wickham, supra; Price v. McCause, 30 Mo. App. 627.] Thereafter it was incumbent upon defendants, under such circumstances as we shall proceed to discuss, to appear in court at the proper time in order to resist the claim, if they chose, as they in fact did when the same subsequently came up for a hearing on the merits.
"We are now brought to a discussion of the first irregularity in the proceedings, which might have proved fatal under different circumstances; that is, if proper advantage had been taken of it. It will be observed that plaintiff was required by Sections 194 and 195 to serve upon the executors a notice filling the office of a summons, ten days before the next term of court, stating that it was her purpose to present her claim for allowance; that is, for an actual hearing on the merits, at such term. Unfortunately this notice was not served, thus raising the question of a waiver by defendants, inasmuch as they duly appeared at such term, filed a motion to make the claim more definite and certain, and thereafter contested the same.
"Counsel for defendants, in his very able brief, having misconceived the issue, argues that defendants did not waive theexhibition required by Section 186, because their appearance was after the year. Certainly he would be quite correct in this contention in a proper case, but here there is no reason for a discussion of a possible waiver of the exhibition required by Section 186, because, as we have shown above, there was not only a timely exhibition, but also a filing of the claim by plaintiff, as specified in such section. What defendants did waive was theservice of notice or summons, as required by Section 194, which contingency is expressly covered by Section 196, providing that by an appearance in court (to the merits) an executor or administrator waives the necessity for such notice.
"In view of these conclusions, and having in mind the peculiar facts of this case, we think that the action taken by plaintiff, looking to the establishment of her demand, was such as to have avoided the bar of the Statute of Non-Claim, and that defendants' requested peremptory instruction in the nature of a demurrer to all the evidence was properly refused."
I. Respective counsel have briefed and argued this original proceeding as though the same were before this court on appeal, and they have cited in support of their respective contentions certain
decisions of the courts of appeals of this State, as well as the decisions of appellate courts of foreign jurisdictions. This being an original proceeding in certiorari in thisQuestion for court under Section 8 of the Amendment of 1884 toDecision. Article VI of the Constitution of Missouri, which provides that "the Supreme Court shall have superintending control over the Courts of Appeals by . . . certiorari," therefore, the sole and single question which this court may determine in the present proceeding is whether respondents' opinion (under review herein) must be quashed for the reason that the opinion contravenes a prior and controlling decision of this court as regards any general principle of law announced by this court, or which has ruled an identical question of law, or which has been ruled upon a like or similar state of facts. [State ex rel. v. Reynolds, 287 Mo. 169; State ex rel. v. Reynolds, 289 Mo. 506; State ex rel. v. Allen, 294 Mo. 214; State ex rel. v. Trimble, 250 S.W. 384.] Inasmuch as the question ruled and decided by respondents in the opinion under review herein is entirely one of statutory construction, the precise question before this court for determination in this original proceeding is, therefore, whether the opinion and decision of respondents is in conflict with a prior decision of this court which construes the same statute, and which statutory construction so announced by this court is controlling upon respondents in the present proceeding.
Relators claim that the construction given by respondents to the above-quoted sections of the Administration Statute is at variance with, and contravenes, the construction given to the same sections of the administration statute by this court in the case of Home Insurance Co. v. Wickham, 281 Mo. 300, 219 S.W. 961.
In the case of Home Insurance Co. v. Wickham, supra, this court was called upon to construe the corresponding sections of the Administration Statute contained in Revised Statutes of 1909, as said sections were thereafter amended by sevenExhibitions separate acts of the General Assembly of 1911, allof Demands. approved on March 13, 1911, and which became effective on June 19, 1911. [Laws 1911, pp. 78 to 86, inclusive.] The effect of said several acts of 1911 was to amend ten sections of the Administration Statute as contained in the statute revision of 1909, and the evident purpose of such amendments was to shorten the time for the administration of estates of decedents from two years to one year. In 1917, certain of said sections of the revision of 1909, as amended in 1911, were further amended, in some particulars, and were re-enacted (Laws 1917, p. 91 et seq.), but such amendments of 1917 have no material bearing or effect upon the question of statutory construction involved herein. The sections of the statute revision of 1909, as so amended in 1911 and 1917, have been carried forward in the revision of 1919, Sections 182, 185, 186, 194, 195 and 196, Revised Statutes 1919, being the particular sections of the administration law involved herein. In
construing those sections of the present administration law, the opinion of this court in Home Insurance Co. v. Wickham, supra, makes reference to the corresponding sections of the statute as contained in the statute revision of 1909, prior to their amendment in 1911. In order, therefore, to better understand and comprehend the meaning and extent of the decision of this court in the Home Insurance Co. case, supra, and our construction of the effect of the several amendments of 1911 upon the several sections of the statute revision of 1909, we quote the corresponding sections of the Revised Statutes of 1909, as said sections existed prior to the amendments of 1911, as follows:
Section 191, Revised Statutes 1909: "All demands not thus exhibited in two years shall be forever barred, saving to infants, persons of unsound mind or imprisoned, and married women, two years after the removal of their disability, and said two years shall begin to run from the date of the letters where notice shall be published within thirty days, as provided in section 82, and in all other cases said two years shall begin to run from the date of publication of the notice."
Section 194, Revised Statutes 1909: "Any person may exhibit his demands against such estate by serving upon the executor or administrator a notice, in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which the claim is founded; and such claim shall be considered legally exhibited from the time of serving such notice, or a waiver of such notice, in writing, by the executor or administrator."
Section 195, Revised Statutes 1909: "No claimant shall avail himself of the benefit of the preceding section unless he shall present his demand to the court in the manner provided by law, for allowance, within two years after the granting of the first letters on the estate, or the publication of notice of the grant of such letters as provided for in section 191 of this article."
Section 203, Revised Statutes 1909: "Any person desiring to establish a demand against any estate shall deliver to the executor or administrator a written notice, containing a copy of the instrument of writing or account on which it is founded, and stating that he will present the same for allowance at the next regular or adjourned term of court."
Section 204, Revised Statutes 1909: "Such notice shall be served on the executor or administrator by delivering to him a copy thereof, or by leaving a copy of the same at his usual place of abode with some member of his family over the age of fifteen years, ten days before the beginning of such regular or adjourned term of the court, and may be served by any sheriff or constable or by any competent witness, who shall make affidavit to such service."
Section 205, Revised Statutes 1909: "The executor or administrator may appear in court, or, by writing, waive the service of any such notice."
The case of Home Insurance Co. v. Wickham, supra, involved the construction of the aforesaid sections of the Revised Statutes of 1909, as amended by the General Assembly in 1911. The said cause, or action, was commenced in the Circuit Court of Dunklin County against the defendant administrator de bonis non of the estate of J.A. Wickham, deceased, to recover upon a promissory note executed by the decedent. The decedent, J.A. Wickham, died on September 9, 1911 (after the aforesaid amendments of 1911 became effective), and letters testamentary were granted and issued on decedent's estate by the Probate Court of Dunklin County on September 19, 1911, and notice of the issuance of letters testamentary on said estate was immediately commenced and published for the requisite period of time. On April 4, 1912, slightly more than six months after the date of granting of said letters testamentary, plaintiff exhibited to the administratrix of decedent's estate the said promissory note as a demand against the estate, and notified the administratrix of said estate that said demand would be presented to the Probate Court of Dunklin County for allowance at the next term of said court, being in April, 1912. On April 15, 1912, the demand was presented to the probate court, the respective parties being present, and a trial thereon resulted in a partial allowance of the demand. An appeal was prosecuted to the Circuit Court of Dunklin County, where the proceeding was voluntarily dismissed by the claimant on July 29, 1912. On September 28, 1912, more than one year after letters testamentary had been granted and issued on the estate of decedent, the second action was begun by plaintiff (claimant) in the Circuit Court of Dunklin County upon the same demand. The sole question for decision by this court in the latter cause, or action, was whether plaintiff's demand was barred by the one-year special statute of limitation, or so-called Statute of Non-Claim, being Sections 191 and 195, Revised Statutes 1909, as amended by the Laws of 1911 (now Secs. 182 and 186, R.S. 1919). Plaintiff contended that, as the demand was exhibited to the administratrix of decedent's estate on April 4, 1912, and was presented to the Probate Court of Dunklin County for allowance on April 15, 1912, both of which acts occurred within seven months of the granting of letters testamentary on decedent's estate, therefore the demand was not barred by the special statute of limitation of one year, and could not be barred except by the general statute of limitation, prescribing the time within which actions may be brought on written obligations for the payment of money. This court therein ruled that the plaintiff's demand was barred by the special statute of limitation of one year. In reaching a decision in said cause, this court found it necessary to review at considerable length the development and history of the administration statutes
of this State, and to construe the aforesaid sections of the Revised Statutes of 1909, as amended by the Laws of 1911. In construing those sections of the statute, as amended, GOODE, J., speaking for this court, said (bearing in mind that the citations to the several sections of the administration statute, made by the author of the opinion, refer to the sections of the statute as contained in the statute revision of 1909):
"Plaintiff's position is that under the amendments of 1911, the statute of the administration law, prescribing the period which will bar the allowance of demands against estates, no longer ran against plaintiff's demand after it had been exhibited to the administratrix; or, if that is not true, the running of said limitation statute ceased upon the presentation for allowance on April 15th, notwithstanding the proceeding was dismissed later. In 1911 ten amendments of the administration law were enacted, all approved on March 13th of said year. The purpose, either declared or apparent, of seven of those amendments was to shorten the time wherein certain proceedings in the course of administration might be taken, . . . with the view thereby to expedite the winding up of estates and enable them to be settled within a minimum period of one year, instead of two as theretofore provided. [Laws 1911, pp. 78 to 86 inclusive.] . . . Plaintiff's first contention is, as stated above, that as Section 195, after its amendment, no longer required a demand to be presented to the court for allowance in order to stop the running of the special statute, nothing was required to stop it except an exhibition to the executor or administrator, which in plaintiff's case was made on April 4, 1912, and thereafter it could only be barred by the general statute of limitations. The claim of plaintiff was exhibited on that day in the mode authorized by Section 194; that is, by serving the administratrix with a notice in writing, showing the amount and nature of the claim, and with a copy of the note. Section 195 (as amended) says no claimant shall avail himself of the preceding section, `unless he shall exhibit his demand to the administrator in the manner provided by law, for allowance, within one year after the granting of the first letters,' etc. Did the Legislature intend, by striking out of said section the words explicitly requiring a demand to bepresented to the court for allowance and substituting words explicitly requiring it to be exhibited to the administrator,
to make the section simply a reiteration of the requirement of Section 191, as amended, that a demand must be exhibited `against the estate' as provided in clauses five and six of Section 190, as amended, or be forever barred? Or was it rather the intention to require a second exhibition to the administrator, the first being, as we have suggested, for the purpose of placing the demand in a certain class as regards priority of payment, the second for the purpose of having it allowed? . . . The policy of legislation for so many years having been to exact, in order to suspend the running of the special limitation, something besides the
exhibition of a claim to an executor or administrator in order to fix the time of its payment out of the estate's assets, it is improbable that the Legislature, in amending Section 195 of the present statutes to provide for exhibition to the administrator for allowance, meant only to reiterate the necessity of theexhibition within a year for classification under Sections 190 and 191. To so hold would be to attribute to the Legislature the intention to dispense with presentation to a court within any time short of the general limitation period; which would be a radical change from the prior policy of the law and, moreover, would frustrate the declared purpose of most of the amendments of 1911 to shorten the period wherein final settlement can be made. Besides, if no more than the original exhibition to the executor or administrator was to be required, why retain, instead of omit, Section 195, when Section 191 would fully accomplish the purpose intended? Why, too, use the words `for allowance,' in connection with the required exhibition to the administrator;
words not used in the preceding sections (190, 191), but instead the words `exhibited against the estate?'
"We consider the deduction a fair one from the particulars noted, that the first part of Section 195, as amended, was intended to prescribe a second proceeding to be taken by a claimant to prevent his claim from being barred by the one-year limitation. What is that proceeding? Providing for exhibiting to the administrator `for allowance' might be deemed to imply that an administrator was empowered to allow a demand against an estate; but it is clear the words used are not positive enough to show an intention either to confer such a power, or to imply that it already existed. Demands must be established by the judgment of a court. [R.S. 1909, secs. 197, 198, 206; Langston v. Canterbury, 173 Mo. 122.] The requirement of an exhibition tothe administrator for allowance within the year, to be an effective act and not merely a useless ceremony, must mean an exhibition to him in a proceeding to have the claim allowed. This proceeding could be by an action in court in the ordinary mode (Sec. 197), or by presentation to the probate court (R.S. 1909, secs. 198, 206); and, in the latter event, the proceedingwould be initiated in the manner provided by the statutes;namely, by the claimant delivering to the executor oradministrator, ten days in advance of the term at which heintended to present the claim, a written notice and copy of theinstrument of writing or account on which the claim was founded,with the statement that it would be presented for allowance atthe next regular or adjourned term. [R.S. 1909, secs. 203, 204, 205.]
"Plaintiff asserts there was a second exhibition to the administrator when the demand was presented to the probate court, April 15, 1912, to have it allowed — the proceeding subsequently dismissed. That exhibition, though not followed up to a judgment, would have sufficed for the purpose of classification, had the one of April 4th been
omitted; but we think it did not suffice to stop the specialstatute. . . . We hold further that the second exhibition to the administrator, for allowance, includes not merely serving him with notice and a copy of the demand in accordance with Sections 203 and 204 (R.S. 1909), but carrying the proceeding forward by presenting the demand to the court according to the notification, or at furthest, within the year; . . . No less can be accepted as an effectual compliance with the requirement of an exhibitionfor allowance, without defeating the whole policy of the administration law, to have the claims allowed only by a court, and the whole policy of the amendments of 1911 to expedite final settlements."
A careful and thoughtful analysis of the opinion of this court in Home Insurance Co. v. Wickham, supra (the pertinent portions of which opinion we have just quoted), which opinion construes the purpose, intent and meaning of Section 186, Revised Statutes 1919 (the same being Sec. 195, R.S. 1909, as amended in 1911 and 1917), discloses, we think, that our conclusion and holding therein is to the effect that a claimant having a demand against an estate of a decedent, in order to prevent his demand from being barred by the one-year special statute of limitation, must make, within such year, a second exhibition of his demand to the administrator or executor of said estate, for the allowance
of such demand, which means (the opinion further holds) an exhibition to the administrator or executor in a judicial proceeding to have the demand allowed, either by an action in court in the ordinary mode, or by presentation of the demand for allowance to the probate court in which such estate is pending, and, if such exhibition is made by presentation of the demand to the probate court, then the proceeding is initiated, or commenced, in the mode, or manner, provided by Sections 194 and 195, Revised Statutes 1919 (the same being Secs. 203 and 204, R.S. 1909), namely, by the claimant serving upon, or delivering to, the executor or administrator, ten days before the beginning of the term of the probate court at which the claimant intends to present his demand for allowance, a written notice, containing a copy of the instrument of writing or account upon which the demand is founded, with the statement that the claimant will present the demand for allowance at the next regular or adjourned term of the probate court. Obviously, the notice last mentioned, prescribed by Sections 194 and 195, Revised Statutes 1919, is a wholly separate, distinct and different notice from the one prescribed by Section 185, Revised Statutes 1919, which has only to do with the mode of exhibiting a demand forclassification. The distinction between the two separate and different notices was recognized and fully discussed by this court in the early case of Pfeiffer v. Suss, 73 Mo. 245, l.c. 254, 255, wherein it was said: "Exhibiting a claim forclassification and presenting it for allowance, are different steps."
It is found and conceded by respondents, in the opinion herein, that the one-year period of limitation, prescribed by Sections 182 and 186, Revised Statutes 1919, for the exhibition of demands, both for the purpose of classification and also for the purpose of allowance, against the estate of Owen M. Dean, deceased, expired on January 5, 1922, the date on which the claimant, Katherine Dean, purported to exhibit her demand (in the mode prescribed by Sec. 185, and not in the manner prescribed by Secs. 194 and 195, R.S. 1919) to the relators, as the executors of said estate, and on which date she also filed a copy of the demand in the Probate Court of the City of St. Louis. It is also conceded by respondents in the opinion that the notice required by Sections 194 and 195, Revised Statutes 1919, was not served upon, or delivered to, said executors, for respondents say in the opinion, "Unfortunately this notice was not served." Therefore, the proceeding for the allowance of claimant's demand was not initiated, or commenced, in the probate court within the one-year period of limitation, under the statutory construction, ruling and decision of this court in Home Insurance Co. v. Wickham, supra, which initiation, or commencement, of the proceeding in the probate court would be in the mode, or manner, provided by Sections 194 and 195, Revised Statutes 1919, namely, by the claimant serving upon, or delivering to, the executors of said estate, ten days before the beginning of the term of the probate court at which the claimant intends to present the demand for allowance, a written notice, containing a copy of the instrument of writing or account upon which the demand is founded, with the statement that claimant will present the demand for allowance at the next regular or adjourned term of the probate court. The claimant having failed to initiate, or commence, a proceeding in the probate court for the allowance
of her demand, in the mode prescribed by Sections 194 and 195, Revised Statutes 1919, within one year after the date of the granting of letters testamentary on said estate, she thereby failed to exhibit her demand to the executors "in the mannerprovided by law, for allowance," as required by Section 186, Revised Statutes 1919. Such was the substance and effect of the decision and ruling of this court in Home Insurance Co. v. Wickham, supra, in construing the same statute.
Respondents, however, in support of the conclusion reached in their opinion herein, rely upon the decisions of this court in Keys v. Keys, 217 Mo. 48, and Rassieur v. Zimmer, 249 Mo. 175, which decisions, in effect, hold that a demand, sufficient in form, which is lodged, after proper notice to the administratoror executor, with the clerk of the probate court, and accordingly filed by said clerk, before the statutory period of limitation for presenting demands to the probate court for allowance has elapsed, is "presented" to the court in the sense of the statute, from the date of its filing with the clerk of the probate court. However, the two decisions of this court last
mentioned were ruled in view of the statute then in force and effect (Sec. 195, R.S. 1909; Sec. 189, R.S. 1899), and before the said statute was amended (in 1911) so as to require a separate and distinct exhibition of the demand to the administrator orexecutor for allowance. The statute effective at the time of the two decisions just mentioned read as follows: "No claimant shall avail himself of the benefit of the preceding section unless he shall present his demand to the court in the manner provided by law, for allowance, within two years after the granting of the first letters on the estate," etc. Furthermore, the opinion of this court shows, in each of the two cited cases, that the claimant, before filing his demand in the probate court, had delivered to, or caused to be served upon, the administrator of decedent's estate the prescribed statutory notice, containing a copy of the instrument of writing or account on which the demand was founded, with the statement that the claimant would present the same for allowance at the next regular or adjourned term of the probate court. The opinion in the Rassieur case discloses that the statutory notice, to the effect that claimant's demand would be presented for allowance at the next term of the probate court, was served upon the administrator of the decedent's estate on April 5, 1907, more than ten days before the next term of the probate court, which was held in June, 1907, and that such statutory notice was served upon the administrator before the period of limitation, prescribed by the special statute for the exhibition and presentment of demands, had elapsed. In the Keys case, the opinion discloses that while the statutory notice that claimant's demand would be presented for allowance at the next term of the probate court was served upon the administrator of decedent's estate only two days (instead of ten days) before the commencement of the next term of the probate court, yet the administrator indorsed upon the original of the notice so served upon him his written statement, acknowledging that the demand had been exhibited to him for allowance against the estate, and that he thereby entered his appearance to the next term of the probate court, which written statement, acknowledgment of service of the statutory notice, and entry of appearance of the administrator was signed by the administrator before the special statute of limitation had run upon claimant's demand. Hence, in each of the cited cases, the proceeding for the allowance of the demand wasinitiated, or commenced, in the probate court, within the period of limitation provided by the special statute, by the service and delivery of the notice required by the then effective statute (now Secs. 194 and 195, R.S. 1919). The decisions of this court in Keys v. Keys, and in Rassieur v. Zimmer, supra, are therefore entirely consistent with our later decision and ruling in Home Insurance Co. v. Wickham, supra, which later decision (it must be borne in mind) construed the administration statute as amended in 1911 and 1917, and as operative and effective after those years.
We think that respondents' opinion, in holding that the claimant, Katherine Dean, substantially complied with the requirements of Section 186, Revised Statutes 1919, in exhibiting and presenting her demand for allowance, contravenes the ruling, and the construction given to the same statute, as announced by this court in our decision and opinion in Home Insurance Co. v. Wickham, 281 Mo. 300. Respondents' opinion herein clearly discloses that there was no exhibition to the executors of the Owen M. Dean estate, for allowance of claimant's demand, in the mode or manner required by Sections 186, 194, and 195, Revised Statutes 1919, as this court has construed said sections of the administration statute in the Home Insurance Company case; therefore, the claimant's demand is barred by Section 186, Revised Statutes 1919, which section specifically requires that the claimant "shall exhibit his demand to the administrator inthe manner provided by law, for allowance, within one year after the date of granting of the first letters on the estate, or the first insertion of the publication of notice of the grant of such letters," unless it can be rightly held that the defendant executors (relators) have waived the bar of the special statute of limitation, or the so-called Statute of Non-Claim, by their voluntary appearance in the probate court (to the merits of the demand) after the one-year period of limitation had elapsed.
II. Respondents furthermore find and rule, in their opinion herein, that "the action taken by plaintiff (claimant), looking to the establishment of her demand, was such as to haveWaiver. avoided the bar of the Statute of Non-Claim," thereby holding, in effect, that the defendant executors (relators), by their subsequent appearance to the merits of claimant's demand in the probate court, after the one-year period of limitation had elapsed, waived the bar of the one-year special statute of limitation. Relators claim that respondents' opinion, in so ruling and holding, contravenes the prior and controlling decision of this court in Madison County Bank v. Suman's Administrator, 79 Mo. 527.
In the Madison County Bank case, supra, the plaintiff, a foreign banking corporation, instead of originally and directly presenting its demand for allowance in the probate court wherein the Suman estate was in course of administration, brought an action to recover upon its claim in the Circuit Court of the United States for the Western District of Missouri. Plaintiff's action was commenced in said Federal court within one year after the granting of letters of administration on said estate, but the return of the officer, indorsed upon the summons or process therein, disclosed that the process was not served upon the administratrix of said estate in the manner provided by the statute, and therefore the attempted service thereof upon the administratrix was defective and void, and was ineffective to subject the administratrix to the jurisdiction of the Federal court. Thereafter,
but more than one year after the granting of letters of administration upon said estate, a successor administrator of the estate (the original administratrix having meanwhile resigned her office) appeared in the Federal court by filing an answer to plaintiff's petition therein, and said action was thereupon tried in that court upon the merits of plaintiff's claim, resulting in a judgment in favor of the plaintiff bank. Afterward, said judgment of the Federal court was presented by plaintiff bank in the probate court for allowance as a demand against Suman's estate. The administration statute then in force provided that all demands legally exhibited against an estate within one year after the granting of letters on said estate shall be placed in the fifth class of demands, and that all actions commenced against an administrator of an estate "shall be considered demands legally exhibited against such estate from the time of serving the original process on such administrator." All demands not thus legally exhibited within one year after the granting of letters upon an estate were placed by the statute in the sixth class of demands. The plaintiff bank contended that it was entitled to have its judgment, obtained in the Federal court against the Suman estate, classified as a fifth class demand, whereas the administrator of said estate contended that the judgment must be classified as a sixth class demand. In ruling the question adversely to plaintiff bank, this court therein said (79 Mo. l.c. 532): "It is next contended by appellant's counsel that when the administrator entered his appearance to the action (in the Federal court) by filing answer, he waived the defect in the service of the summons. For the purpose of conferring jurisdiction on the court over the person of the defendant, so as to authorize the judgment rendered therein, the appearance had such effect. But when the appearance was made, more than one year had run after the grant of the letters of administration, and such waiver did not, for the purpose of notice of the demand under the Administration Law, have relation back so as to become operative from the date of the attempted service of the writ. In Etheridge v. Woodley, 83 N.C. 11, the court say: `While a general appearance by attorney will dispense with the process to bring a defendant into court, such appearance has no retrospective effect, and is not equivalent to service in time to avoid the Statute of Limitations when the statutory period had elapsed before the entry of appearance.'"
The doctrine thus announced by this court in the Madison County Bank case, supra, was followed by the St. Louis Court of Appeals in the case of Wencker, Admr., v. Thompson's Administrator,96 Mo. App. 59, 65, wherein it is said: "The notice which constitutes an exhibition of a demand to an administrator may, indeed, be waived by him; but in that event the date of thewaiver is to be taken as the date of the exhibition orpresentment of the demand. [Madison Co. Bank v. Suman,79 Mo. 527.]" (Italics ours.)
The aforesaid ruling of this court in the Madison County Bank Case, supra, is in consonance with the rule, or doctrine, as announced by the leading text-writers, and as established by the weight of authority in other jurisdictions. Mr. Woerner, in his recognized standard treatise on the American Law of Administration (3 Ed.), section 402, page 1326, says: "The Statute of Non-Claim, or of limitation specially to estates of deceased persons, is in most States applied more rigorously than the general Statute of Limitation. . . . The executor oradministrator cannot waive it." And in 24 Corpus Juris, 370, it is said: "The personal representative being in a sense a trustee for all the parties interested in the estate, it is his duty to protect them against every demand which is not legally enforceable against the estate. As a general rule therefore hecannot waive the requirements of the statutes of non-claim, and if he pays a claim which has not been duly presented he is not entitled to credit for the payment." (Italics ours.)
It is true, as stated by respondents in the opinion under review herein, that the statute (Sec. 196, R.S. 1919) provides that "the executor or administrator may appear in court, or, by writing, waive the service of the notice" required by Section 194, Revised Statutes 1919. But respondents apparently have overlooked the fact that the notice required by said Section 194 is intended and designed to perform a double purpose and office: (1) it serves as an exhibition (to the administrator or executor of an estate) of a claimant's demand for the purpose of the allowance of such demand; and, (2) it performs the office of an ordinary summons, by virtue of which, when properly served, the probate court acquires jurisdiction over the person of the administrator or executor in the judicial proceeding for the allowance of the demand. While (as held by this court in Madison County Bank v. Suman's Admr., supra) the appearance of the executors of the Owen M. Dean estate in the Probate Court of the City of St. Louis was a waiver of the service of summons upon them, and therefore resulted in conferring jurisdiction on that court over the persons of the executors, nevertheless, such appearance, when viewed as a waiver of the exhibition of thedemand to the executors for allowance, did not have relation back to the time (January 5, 1922) when such demand should have been exhibited to the executors for allowance, in order to have avoided the bar of the Statute of Non-Claim, as required by Section 186, Revised Statutes 1919. For the latter purpose, the date of the voluntary appearance of relators in the probate court, which is to be regarded as the date of their waiver of the service of notice of the presentment of claimant's demand in the probate court, must be taken as the date of the exhibition of the demand for allowance, which date (according to respondents' opinion) was after the one-year period of limitation, prescribed by the Statute of Non-Claim, had elapsed.
We find the opinion of respondents (in holding that the action taken by the claimant, Katherine Dean, looking to the establishment of her demand, was such as to have avoided the Statute of Non-Claim) to be in conflict with the prior and controlling decisions of this court in Home Insurance Co. v. Wickham, 281 Mo. 300, and in Madison County Bank v. Suman's Administrator, 79 Mo. 527. It follows, therefore, that the opinion, judgment and record of the St. Louis Court of Appeals herein must be quashed, and it is so ordered. Lindsay andEllison, CC., concur.