Smith v. Maynard

EAGER, Judge.

I concur in the principal opinion. While the procedural facts here are somewhat different from those in Clarke v. Organ, Mo., Banc, 329 S.W.2d 670, the difference is not sufficient to require or permit a different result. The doubt expressed in the foregoing opinion as to whether the reference in Clarke, supra (329 S.W.2d loc. cit. 676), to “a notice in an in rem proceeding” meant the “tort action” or the probate proceedings, seems to me to have been unfounded. But, lest it may inject further confusion into a situation already impregnated with complications and turmoil, we say here that it referred merely to the probate proceedings which are expressly made proceedings in rem by § 473.013, V. A.M.S. No one has ever supposed, so far as I know, that a tort action for damages was a suit in rem.

The effect of the existence of liability insurance and the supposed exoneration of the assets of the estate thereby has been fully considered and decided by the court en banc in the Clarke case, supra. The present situation presents nothing new on that subject.

In my view, the effect of the present dissent would be to rewrite the applicable non-claim statutes in order to accomplish an end which might, from one practical standpoint, be desirable. The nonclaim statutes would in no way have foreclosed this plaintiff, had she complied with the plain terms thereof; she had a complete remedy for her wrong, had she pursued it.

The 1959 amendment of § 473.360, RSMo 1949 (Laws 1959, Senate Bill No. 305; § 473.360(2) V.A.M.S., Pocket Parts) is not directly involved here, and the assumed intent of the legislature in enacting it does not necessarily show that it had that same intent in enacting the original act. The amendment should not be construed under these circumstances, and thus prejudice the results of future cases where it may be a live issue.

This opinion has been written in the hope that it may clarify the situation to some extent.