137 Mo. App. 712 | Mo. Ct. App. | 1909
Lead Opinion
— Plaintiff is the public administrator of Jackson county, in charge of the estate of William H. Lowe, deceased. He brought this action to recover a deposit of $1,500 left by deceased with the defendant, a banking institution in a county adjoining Jackson. The judgment in the trial court was for the plaintiff.
• It appears that’ Lowe resided in the State of Iowa and that he died in the State of Kansas in November, 1906, leaving also a deposit of $1,000 in a bank in Jackson county. In that month letters of administration were granted on his estate in his home county in Iowa to O. W. Huff, who duly qualified. In December, 1906, the defendant bank paid to Huff the amount of the deposit and took his receipt as such ¿dministrator. After-wards, in the same month, plaintiff, as public administrator, was put in charge of the estate by the probate court of Jackson county, Missouri, for the purpose of administering thereon. He collected the deposit in Jackson county and then demanded that left with defendant, but the latter having already paid, it to the home administrator in Iowa, refused payment and this action followed.
It is thus readily seen that the question involves the title of a foreign domiciliary administrator to personal
So it has come to be well-recognized law in this State that the foreign domiciliary administrator is without title to property in this State. [Naylor v. Moffatt, 29 Mo. 126.] “He cannot maintain a suit here for such property for the simple reason that he has no title to the property.” [Richardson v. Busch, 198 Mo. 174, 187.] To the same effect is: In the Matter of Henry Ames & Co., 52 Mo. 290; Turner v. Campbell, 124 Mo. App. 133; Stevens v. Larwell, 110 Mo. App. 140; Becraft v. Lewis, supra.
But it is urged if the debtor pays the debt to the foreign administrator, as in this case, he should be protected,. since the money has gone to where it must go in the end. That cannot be allowed to have any weight because of the utter lack of authority and title in such ad
Nor does the fact that an administrator’s title is, in reality, that of a trustee for the heirs and for the foreign domiciliary administrator, as is recognized in Naylor v. Moffatt, 29 Mo. l. c. 128; Richardson v. Busch, 198 Mo. l. c. 188, affect the question. For notwithstanding the administrative trusteeship for the benefit of such persons, yet creditors have a superior right to heirs (Hayes v. Fry, 110 Mo. App. 25), and, as resident creditors, they have a primary right to the protection of the laws of their own state in property of their decedent debtor which has been placed in such State, and to have it administered there instead of forcing them to the inconvenience of foreign jurisdictions.
There is a phase of this case which counsel for dedefendant has not permitted us to overlook, which is said not to appear in any of the other cases which have arisen in the courts of this State, and that is that here the defendant’s payment to the Iowa administrator was before the plaintiff had been appointed to take charge of the estate by our probate court. But that that cannot affect the rule in this state is made apparent by looking to the reason upon which the rule is founded. The reason is that the foreign administrator has no title whatever. The fact that the title may be in abeyance pending 'the appointment of an administrator here does not arm
What we have written is in accord with the view of the learned trial judge as expressed by him in writing at the trial, a printed copy of which has been furnished us by counsel. It has been a valuable and serviceable guide to the conclusion we have reached.
The judgment is affirmed.
Rehearing
ON. MOTION FOR REHEARING.
— The points passed upon in this case have not been otherwise decided by the St. Louis Court of Appeals in Sommer v. Bank, 108 Mo. App. 490, as suggested by defendant. Inference from remarks of the court outside the points of decision should not be drawn against express decisions of the Supreme Court. The decision was that no objection could be taken to the foreign administrator’s capacity to sue, since it had been waived by a failure to demur.
The last cases re-announcing the rule stated in the opinion, the first of which was therein cited, are those of Richardson v. Busch, 198 Mo. 174, 184, 185, 187, and De La Vergne v. Richardson, 198 Mo. 189. Unless we are to put ourselves in conflict with those cases, as well as the others cited in the opinion, we must deny the motion.