Kingsbury v. Gastrell's Estate , 110 Miss. 96 ( 1915 )

Stevens, J.,

delivered the opinion of the court.

The executrices of the last will and testament of Lucy E. Gastrell, deceased, presented in the inventory and appraisement of the personalty of the estate, being administered upon in the chancery court of Adams county, certain promissory notes executed by IT. E. and Kuth Kings-bury, payable to the order of the makers or bearer and indorsed by the- makers and secured by deed of trust on the homestead of said H. E. Kingsbury. The inventory recites that:

‘ ‘ These notes are separate debts unless barred by the statute of limitations. H. E. Kingsbury, deceased, was the husband of said Ruth Kingsbury, and died before the-maturity of any of said notes, and no administration has-ever been taken on his estate. The notes are reported by the executrices, they having been found among the effects-of deeendent after her death, but said Ruth Kingsbury claims that said notes aire barred.”

The Ruth Kingsbury mentioned, widow of H. E. Kings-bury, deceased, and one of the joint makers of said notes, is also one of the executrices of the will.

Thereafter, the executrices presented a petition to the court asking for a construction of certain features' of the will, setting forth the listing of said promissory notes- and the objection or protest of said Ruth Kingsbury, and praying that process might be issued to the parties in in-, terest and proper issues made up to determine whether the said notes belonged to the estate. This petition, furthermore, alleged that during the lifetime of said decedent, Lucy E. Gastrell, she stated that she did not intend to enforce collection of said notes and trust deed securing the same. The petition was answered by Mrs. Ruth Kingsbury individually and for her minor child, Lucy Gastrell Kingsbury; and thereupon the controversy was heard upon said petition, answer, and agreed statement of facts.

The inventory and petition represent that the notes in question were in the possession of decedent at- the' time of her death and were found among her valuable papers. The answer of Mrs. Kingsbury charged, among other things, that Mrs. Gastrell was guilty of laches in failing to foreclose said deed of trust securing the notes; that no administration was ever taken out upon the estate •of H. E. Kingsbury, deceased; that at the death of her husband, H. E. Kingsbury, the mortgaged homestead descended to her and her minor child as their exempt home, and had been occupied by them as a home without any expectation on their part of ever having the said notes to pay. The agreed statement is as follows:

“It is admitted that said Horace E. Kingsbury died intestate on March 16, 1901, leaving as his sole heirs át law his widow, Mrs. Ruth Kingsbury, and their minor ■child, Lucy Gastrell Kingsbury; that the last and all of the notes in question reached maturity on October 4,1903; that the three notes in question were purchased by her aunt, Mrs. Gastrell, from the former holder, Mrs. Merrick, on October 14,1903, after all had reached maturity; that said notes were secured by deed of trust on the family residence and homestead of said Horace E. Kings-bury; that said property was inherited by his said wife and daughter as his sole heirs at law, and ever since his death has been used and occupied by them as a residence; that just after she purchased said notes said Mrs. Lucy E. Gastrell stated to her brother-in-law, Mr. A. T. Gastrell, that she had bought the notes on Horace’s home in order to save it for Ruth and Lucy, and that she bought them to give them a home, and that Ruth would never be able to pay the notes, and she would give them to her.”

The will of Mrs. Gastrell, who died January 21, 1913, made no reference whatever to these notes.

The chancellor decreed that the notes were not barred by the statute of limitations, and that the testatrix, had not, as a matter of fact, given the notes to any one; but the same constituted a part of her estate at her death, and the executors were ordered to deal with the same as assets. This appeal is from the decree of the chancellor so holding.

Counsel for appellants frankly concede the general rule of law that, where a cause of action against a person has not accrued at the date of his death, the general statute of limitations does not commence to run until there is an administration of his estate, in the absence of legislation to the contrary. They ask that we disregard the previous holdings of this court on this question and to establish a new rule. Our court'in as early a case as that of Abbott v. McElroy, 10 Smedes & M. 100, through Chief Justice Sharkey, declared the rule in unmistakable language as follows:

“But, if the debt was not due at the time of his death, the statute does not begin to run until there is an administrator, because until then a cause of action has never accrued, there being no one who could be sued. ’

This holding has been reaffirmed in repeated decisions of our own court; and the legislature,"with full knowledge of these decisions, had not seen fit to enact a new rule.. Our present statute of limitations must therefore be construed in the light of the many decisions of our court. The principle is now too thoroughly embedded in the jurisprudence of our state to be changed b> what would be more properly termed “judicial legislation.”

Undei our liberal statutes the next of kin or any creditor, after the expiration of thirty days from the death of any party whose estate should properly be administered upon, has' the right to force administration; and if the beneficiaries of' the estate, charged primarily with the •duty of seeing that the estate is lawfully administered upon, elect to use the property of the estate and to refrain from taking steps toward the payment of just debts under the supervision of the proper tribunal, they are .then in no attitude, in our judgment, to complain of, any hardship occasioned by many years of delay.

The second assignment of error complaining of the decree of the chancellor holding that the said notes were never given away by the testatrix in her lifetime presents a question of fact rather than of law; and upon the pleadings and facts we are not prepared to hold that the chancellor was manifestly wrong. The gift was never consummated by delivery of the notes and a cancellation of the indebtedness.

There is likewise no merit in the contention on the third assignment of error that Mrs. Gastrell herself would he estopped to foreclose the deed of trust were she living or that her executrix is now estopped. It is possible that the purchase of these notes by Mrs. Gastrell, the aunt of Mrs. Kingsbury, operated to secure these debtors in the use and enjoyment of their home for a number ©f years.

Affirmed.