State ex rel. Wright v. Miller , 18 Mo. App. 41 ( 1885 )

Opinion by

Hall, J.

The defendant in this case is the sole legatee and devisee of her deceased husband, Robert Gr. Miller. The estate of the said Robert Gr. Miller has been fully administered, and Ruth Miller received from said estate, in addition to the land devised to her by her testator, the sum of $1,085.12. The object of this suit is to compel Ruth Miller, as legatee and devisee, to pay a certain amount claimed to have accrued on a liability against her testator, subsequent to a final settlement by the administrator of the estate, by reason of his being a surety upon the bond of one Harlan, a former guardian and curator of John F. Wright.

There are other questions presented by the record herein, but the only question which we shall consider, is, whether under the statute of this state, at the time of the death of Robert Gr. Miller, in 1869, a devisee or legatee could be made liable for the debts of his or her testator.

This question has been settled by the supreme court of this state, and the above question has been answered in the negative, in the case of Sauer v. Griffith, 67 Mo. 658. Section 7 of the statute of Uses and Trust (Wag. Stat., page 1352), in force at the time mentioned above, declared that the heirs and devisees of every person who shall have made any covenant or agreement shall be liable, etc., “in the cases and in the manner prescribed by law.” In Sauer v. Griffith, supra, Judge Hough, delivering the opinion of the court, said that no provision had been made by law on the subject, and that in this state the subject was governed by the common law, and that at common law the devisee was not bound by the covenants or agreements of his testator, nor could the land be followed in his hands. Such, too, was the common law as to the legatees. “There is no principle of the common law which has been more uniformly recognized by elementary writers and jurists, than that which precludes a creditor of the testator from maintaining an action, either against the devisee of lands, or the legatee of chattels.” Rogers v. Farrar, 6 T. B. Mon. 422.

In fact it is not clear that onr statutes, as amended in 1879, change the common law as to legatees. See section 3944 of Revised Statutes. “It is against devisees and not against legatees that that remedy is given by the act. Each of those terms have a technical signification, and should be taken in their technical sense. Devisee, in its technical sense, means one to whom land or other real estate is devised; legatee, to whom chattels are bequeathed.” Rogers v. Farrar, supra.

The judgment of the circuit court is reversed, and the petition is dismissed.

All concur.