41 Mo. App. 546 | Mo. Ct. App. | 1890
Lead Opinion
This proceeding is to revoke the authority of the defendant, the public administrator of Schuyler county, to administer on the estate of J. W. Anthony, deceased, late of Davis county, Iowa. It was begun on the motion of plaintiffs in the probate court. The motion was overruled and appealed to the circuit court where it was again denied and the plaintiffs appeal. At the trial it was admitted that defendant Lewis was ordered by the probate court of Schuyler county to take charge of the estate of J. W. Anthony, deceased, and is assuming to act as the. administrator of the estate of said J. W. Anthony, deceased. That said Anthony at the date of his death in 1885, and for many years theretofore resided in Davis county, Iowa. ■ That he died at his home in Davis county, Iowa, leaving a will whereby he gave his widow, who is now living in Davis county, Iowa, all his personalty, absolutely, with life-estate in his realty with remainder in his children and their descendants. That said Anthony, at his death and for many years prior thereto, had two sons-in-law, residents of Schuyler county, Missouri, who have ever since been, residents of Schuyler county, Missouri, and have large families by their wives, daughters of said Anthony, and that said Anthony had no other kin in this county. That at said Anthony’s death he held a note purporting to have been executed by plaintiff, Adam Becraft, whereby it appears said Becraft owed him about six hundred dollars, which note is the subject of the administration • of
The payor of the note resided in Schuyler county, Missouri, and, therefore, the situs of the asset was in this state notwithstanding the note itself was in Iowa. McCarty v. Hall, 13 Mo. 480; Partnership Estate of Henry Ames & Co., 52 Mo. 290. The note was brought or sent into this state for the purpose of administration. We have, then, property or assets in this state, and the probate court believing it became the duty of the public administrator to take charge of the estate entered the following order: “It appearing to the court that John
The discussion of this case has brought up the question of the rights of Mrs. Anthony, the widow, to whom the deceased willed the note in question, it being' contended, that she took the title under the will and that there was, therefore, nothing belonging to the estate upon which to administer. It is fundamental law, first, that on the death of any one leaving property, the administrator takes the title to personalty, while the heir takes the title to real estate; second, the heir or devisee of personal property can only secure the title through administration. And this is true though there are no debts, and the heir be the sole distributee. These propositions are sustained by the following authorities: State ex rel. Hounsom v. Moore, 18 Mo. App. 406; Weeks v. Jewett, 45 N. H. 540; Wood v. Bagley, 13
The fact that the deceased resided and died in Iowa and that the legatee resided there makes no difference in the application of the rule. There was no administration in Iowa, and consequently, as we have seen, no title vested in Mrs. Anthony even under the case of Morton v. Hatch. The asset, then, was an asset of the estate, the title to which vested in the administrator, and administration is justifiable if for no other reason than to transfer the title. The administrator’s right to the property is exclusive of “distributees and of all
The suggestion that there were no debts owing by the estate should have little weight. I know of no way, short of the period of limitation, by which it can be definitely known that there are no debts left by a deceased person. And if we can dispense with administration simply by offering proof that no debts are known to exist (which is all that testimony could show) we would make much confusion and overturn well-recognized modes of procedure.
Generally, the relatives of a deceased, who are mentioned by the statute, are entitled to administer and must be notified before their .right is considered relinquished. R. S. 1879, secs. 7, 8. But, in this case the only relatives were two married daughters who are incapable of administering (section 6, Revised Statutes, 1879), and so the probate court has found.
The authorities above cited show (the principle being approved everywhere) that this debt cannot be collected, except through an administrator appointed in this state; the necessity, therefore, becomes apparent, without further illustration, for the order appointing the public administrator. It would be a singular spectacle to have this plaintiff, who is the debtor, escape his debt by sustaining his motion to disable any one from suing him. There is no question in our minds as to the power of the probate court under section 306, Revised Statutes, to order the estate into the hands of the public, administrator when in its judgment good
It will be readily seen that authority asserting the right of a devisee of real estate or “immovables'" to sell such property without letters of administration is not at all applicable to the point here. Nor is authority applicable which holds that an executor with power of sale of real estate may sell without administration, he in such case being a trustee under the will, as we decided in Compton v. McMahan, 19 Mo. App. 494.
The judgment, with the concurrence of Gill, J., will be affirmed ;
Dissenting Opinion
(dissenting). — I am constrained by my convictions of the law to dissent from the opinion of the majority for the reason that it is conceded that Anthony died in the state of Iowa where his domicile then was and for many years theretofore had been ; that he left a will whereby he gave to his widow “all his personal property absolutely,” and that she had taken charge of the same as her own under the will, and that the deceased left no debts. The terms “personal property,” when not limited in their operation by other words, are broad enough to include choses in action, and so a bequest of all one’s personal estate passes his notes and other choses in action. Cuchter v. Syms, 3 Atk. 61; Speed v. Kelly, 59 Miss. 47. The bequest in Anthony’s will passed the title to the Beeraft note' to his widow. Under the law of this state the real estate of a decedent goes to the heir while the personal estate goes to the representative. The title to the Beeraft note in passing from deceased to the representative by operation of law was intercepted and cut off by the bequest in the will. Morton v. Hatch, 54 Mo. 408; Trecotlick v. Austin, 4 Mason C. C. 151; Walworth v. Root, 40 Fed. Rep. 723; De Forest v. Thompson, 40 Fed. Rep.