Opinion
November 14, 1950.
1. — Executors and Administrators. Under special section limiting time in which to bring action against an administrator on claims against an estate, in order to start the time running from date of granting of first letters of administration, notice must have been published within 10 days after the letters were granted.
2. — Executors and Administrators. In an action on a claim against a deceased's estate where nothing appeared in creditor's petition to show that notice to creditors of the estate had ever been published as required to start the time running under special statute of limitations, petition did not show on its face that action was barred by statute of limitations and was not subject to a motion to dismiss on that ground.
3. — Specific Performance. A petition against a deceased's estate which was entitled "action in equity", and which asked for specific performance by requiring administrator to pay an amount due from the estate, showed on its face that it was only a demand for a sum certain which was enforceable by filing demand in probate court or in an action at law but not in an equity action.
Appeal from Circuit Court of Greene County. — Hon. Tom R. Moore, Special Judge.
REVERSED AND REMANDED.
E.C. Hamlin for Appellant.
The trial court in its order of dismissal of plaintiff's action states than an action in equity will not lie on the claim set forth in plaintiff's petition and any legal action is barred by the Statutes of Limitation under section 182 of R.S. of Mo. 1939. The question of whether any legal action that plaintiff might have brought being barred by Section 182 is not in this case, as this is an action in equity and section 182 does not apply to equity matters. In certain legal matters the circuit court has concurrent jurisdiction with the probate court by authority of sections 183, 184, 188 and 208 of R.S. of Mo. 1939. Now sections 464-060-464.080 and 464.090 R.S. of Mo. 1949. Pryor v. Kopp 119 S.W.2d 228. Probate court does not have exclusive jurisdiction over all matters of claims or actions against deceased estate. Barnes v. Boatmens Nat. Bank of St. Louis 199 SW (2) l.c. 919. Probate Court in Missouri do not have equity in jurisdiction and section 208 R.S. of Mo. 1939, now 464.090 R.S. of 1949 makes exceptions for suits in equity. Hax v. O'Donnell 117 SW (2) l.c. 672 (7) This action is not barred by section 182 of R.S. of Mo. 1939 but comes under section 1014 R.S. of Mo. 1939 the general five year statutes of limitations on contract, and section 182 does not affect section 1014. Bond et al. v. Unsell et al. 72 S.W.2d 871-874 (1 2) Anderson v. Biscoe 201 S.W.2d 432; Barnes v. Boatmen's Nat. Bank of St. Louis 199 S.W.2d 917. An action for specific performance of a contract is purely as equitable remedy and is invoked that complete justice may be had between the parties. Hoover v. Wright 202 S.W.2d 83, 86; Hedrick v. Wright 191 S.W.2d 372-372 (2) Where parties enter into contract that one of parties will render services as nurse and housekeeper to the other for such a period of time that one of the parties to contract will recover from his sickness or die and the compensation for said services are to be paid in property such contract will be enforced where one of parties has fully performed his part of the contract. 34 CJS page 104 Art. 370 (d); 58 CJ Art. 2 3 page 847. Also Art. 330 page 1075; Schweizer v. Patton et al. 116 S.W.2d 39; Hunter v. Lafferty 116 S.W.2d 842, 844; Finn v. Barnes 101 S.W.2d 718, 721. This action involves the question of a gift or bonus to the plaintiff as payment for services rendered by him to the deceased and equity will enforce such agreement. Joseph v. Joseph 164 SW (2) 145, 149; Hall v. Gitmann 121 Mo. App. 630, 636, 637 and 638. This petition in this case does not disclose on its face that the action is barred by the special statute of limitation section 182 R.S. of Mo. 1939 or the General Statute of Limitation. Broz v. Broz, 132 S.W.2d 1039. The plaintiff contends, that if his action was an action at law and not equity that he would not be barred from bringing his action by section 182 of R.S. of Mo. 1939, but could bring his action under Section 188 of R.S. of Mo. 1939. State ex rel. Nute v. Bruce 70 S.W.2d 858 (810).
Kirby W. Patterson for Respondent.
I. It appears on the face of the petition that letters of administration were granted in this estate on May 9, 1949, and that his action was filed on August 29, 1950, more than one year thereafter. The action was therefore barred by the statute of limitations requiring that demands be exhibited within one year from the granting of the first letters in the estate. Sec. 464.010, R.S. 1949, formerly sec. 182 R.S. Mo. 1939. II. The claim or demand is based on an alleged check, an instrument in writing, and is one that could and should have been exhibited in probate court within the one-year period. Sec. 464.030, R.S. Mo. 1949, formerly Sec. 185 R.S. Mo. 1930. III. It could also be exhibited, within the one-year period, by commencing an action against the administrator in circuit court and the action is considered as a demand legally exhibited against such estate from the time of serving the original process on the administrator. Sec. 464.070, R.S. Mo. 1949, formerly sec. 184, R.S. Mo. 1939. IV. Under the statutes above cited, the action is one cognizable in probate court, and the application of the special statute of limitations cannot be avoided by calling the prayer for a money judgment a prayer for specific performance, or by entitling the petition "Action in Equity." There is no such thing as specific performance of a contract to pay money. Jamison Coal Coke Co. v. Goltra 143 Fed. (2) 889, 154 A.L.R. 1191 cert. denied 65 S.Ct. 122; 323 U.S. 769, 89 L.Ed. 615; Raton Waterworks Co. v. Town of Raton, 174 U.S. 360, 364, 43 L.Ed. 1007; Hull v. Hull, (1a.) 90 N.W. 469, 497. V.A. court of equity is not a tribunal for the collection of debts. Coleman v. Hagey 158 S.W. 829, 252 Mo. 102; Simplex Paper Corp. v. Standard Corrugated Box Co. (St. L. Ct. of App.) 97 S.W.2d 862, 867, 231 Mo. App. 764. VI. Specific performance is a relief granted by equity only where the action at law for damages in inadequate, as for example, where there is a contract to convey or devise real estate. The relief is granted as to personal property only where, for some reason or other, the property in question is unique. Rice v. Griffin, 161 S.W.2d 220, 349 Mo. 373; Boeving v. Vandover, (Sp. Ct. of App.) 218 S.W.2d 175, 240 Mo. App. 117; Koelling v. Bank of Sullivan, (St. L. Ct. of App.) 220, SW (2) 794. VII. Even if the demand of plaintiff were equitable in its nature, which it is not, it would give rise to a relationship of debtor and creditor between the estate and the claimant and the probate court would have jurisdiction, provided, of course, that it was filed within the one-year period. Bond v. Unsell, (Ct. L. Ct. of App.) 72 S.W.2d 871.
This is an appeal from an order of the circuit court dismissing plaintiff's petition in a suit against an administrator, on the ground that upon its face it showed that the claim was barred by a special statute of limitations. (Secs. 461.440 and 464.020, Mo. R.S. 1949)
The petition was filed on August 29, 1950. The first paragraph is as follows:
"Plaintiff states that he resides in the county of Greene, state of Missouri, and that J.W. Chilton, Jr., was duly appointed on the 9th day of May, 1949, administrator of the estate of Oliver Wyatt, deceased, and he is now the acting administrator of estate."
Then follows a statement of the origin and nature of his cause of action.
The following motion to dismiss was filed:
"Comes now the defendant in the above entitled cause and moves the court to dismiss the petition filed herein, for the reason that it appears upon the face of said petition that plaintiff's alleged cause of action is barred under the terms of section 182 of the Revised Statutes of Missouri, 1939."
It was sustained,
"* * for the reason the court finds that an action in equity will not lie on the claim set forth in Plaintiff's petition and any legal action is barred by the Statutes of Limitation under Section 182 of the Revised Statutes of Missouri, 1939."
The sole question before us is, does the petition on its face show that it is barred by the statutes referred to?
At the time an administrator has been appointed under the provisions of Secs. 461.010 et seq., Mo. R.S. 1949, Sec. 461.440 provides that he shall sign a notice,
"* * which notice the judge or clerk of said court shall within ten days after the date letters are granted on such estate, cause to be published in some newspaper published in the county where letters of administration have been granted, * *"
and this notice shall state that letters of administration have been granted, and give the date thereof, for the purpose of notifying all parties having claims against the estate to exhibit them and notifying them that if such claims are not filed within one year, they shall be forever barred.
This statute then provides,
"* * that if, for any cause, such notice shall not have been so published for the first time within ten days after the date of the granting of such letters * *"
the statute of limitation shall begin to run from the date of the first publication of such notice.
Section 464.010 Mo. R.S. 1949 divides claims against the estate of a decedent into six classes and Section 464.020 provides:
"All demands not thus exhibited within one year shall be forever barred, * * * 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."
The petition in this case says nothing whatever about the time of the publication of notice. Whether the first one was made within ten days of the issuance of the letters of administration does not appear. Neither does it appear that the notice was ever published. Therefore the petition upon its face does not show when the statute of limitation began to run. The notice must be published within ten days if the statute begins to run from the date of the appointment. In Kirk v. Metropolitan Life Ins. Co. 225 Mo. App. 756, 38 S.W.2d 519, Judge Bland, speaking for the court, and discussing this identical section said:
"In the second place the statute does not begin to run unless there is a notice of the granting of the letters, not only published, but properly published, and even then the limitation does not run against contingent claims that do not become fixed within one year after the granting of letters."
See also: Vosler v. Brock 84 Mo. 574, l.c. 577. Munday v. Leeper, 130 Mo. 417, 25 S.W. 381. Bolz Cooperage Corp. v. Beardslee, 211 Mo. App. 109, 245 S.W. 611.
It has also been held that an administrator cannot avail himself of this statute unless he has given notice of his letters of administration in the manner and within the time directed by law. Wilson v. Gregory, 61 Mo. 421. Bryan v. Mundy's Administrator, 17 Mo. 556. Clark v. Collins 31 Mo. 260. Doerge v. Heimenz, 8 Mo. App. 265.
Mr. Rush H. Limbaugh, in his very admirable work on probate practice (Missouri Practice with Forms) Vol. 2, Section 760, page 111, says:
"While the general statute of limitations begins to run in favor of the estate from the date of the granting of letters, the special statutes of limitations do not begin to run until notice of the granting of letters is properly published. Actual notice is not sufficient, but the publication of notice as required by law is necessary to start the running of the statutes." (Citing cases.)
Therefore, the petition does not show upon its face that the cause of action was barred by the statute of limitation, for the simple reason that it does not show when, if ever, the notice of the issuance of the letters of administration was published and the statute began to run.
From what has been said, we do not wish to be understood as disagreeing with the learned trial court in holding that this petition is an action at law and not one in equity. While it is entitled "Action in Equity" and asks for specific performance by requiring the administrator to pay the amount due, it shows on its face that it is only a demand against the estate for a sum certain, enforceable, if at all, by filing a demand in the probate court or in an action at law and that the sum became due at the death of the obligor. Sections 464.030 and 464.070, Mo. R.S. 1949.
The cause should be reversed and remanded for further action by the trial court in accordance with this opinion. It is so ordered. Blair, J., and McDowell, J., concur.