Griswold v. Mattix, 21 Mo. App. 282

Griswold v. Mattix

21 Mo. App. 282 | Mo. Ct. App. | 1886

Ellison, J.

— I can see no reason in support of the action of the court in admitting the letters of administration granted to the interpleader, nor the appraisement and inventory under her administration. She filed her interplea in her individual capacity; besides, she did not take out letters until more than three months subsequent to filing her interplea. Her rights in this action must be ascertained and determined as they existed at the filing of the suit. If her right depends on her representative character she should have obtained her letters prior to her appearance as a party to the action. It is a familiar rule of law that personalty passes to the administrator. He alone can sue for it. Helman v. Wellenkamp, 71 Mo. 407; Smith v. Denny, 37 Mo. 20. Sections 105 and 107, Revised Statutes, set apart certain property for the widow, and it has been held by the supreme court that *286such property vests absolutely in the widow on the death •of her husband. Hastings v. Meyers, 21 Mo. 519. Yet this property should regularly pass through the probate •court and the hands of the deceased husband’s administrator. It must be ascertained by a competent tribunal. 'The probate court is that tribunal. Its jurisdiction is ■original and exclusive. The statute contemplates that it shall pass through the probate court, for by sections 107 and 108, she shall apply for the property therein mentioned and shall give a receipt. By section 105, she shall have property of certain kinds and of certain values; these must be ascertained by authority. In the case before us, originating outside of the probate court, and getting into the circuit court only by appeal from a magistrate, there is an attempt made to give the widow her ■allowance under these sections. There is no authority for it.' There was no original jurisdiction in the circuit ■court to determine that matter.

The respondent, in effect, further contends that even though there be error in the trial, yet as the preponderance of the evidence disclosed that the estate was of less value than four hundred dollars, it belonged to the widow .absolutely, without administration, under section 2, Revised Statutes. This section, first enacted in 1877, •changes the ordinary course of a decedent’s property when of the value of that allowed the widow and minor ■children, or less, and authorizes the probate court to dispense with administration, casting the property directly upon the widow or minor children. The section provides for a judicial examination by the probate court, and its order in the premises shall have the effect of empowering the widow or minor children to claim and £ £ retain ’ ’ the property.

It will thus be seen that this is a matter originally within the exclusive jurisdiction of the probate court. It cannot be determined by the circuit court except on appeal from the probate court.

We have been referred to the case of Evans v. *287Evans (79 Mo. 53), where it is said, in a contest between the widow and the administrator, to compel her to surrender to him certain property claimed by the widow as her separate property, and not belonging to the intestate, that even if the property should be found to be that of the intestate, the widow would be entitled to keep absolutely the property mentioned in sections 105 and 107, Revised Statutes. But this was an action originating in the probate court, which had jurisdiction to determine such matters, and for that reason the case has no application here. When the supreme court used the expression, “even if the property should be found tobe that of the intestate,” it is meant, if it should be found by the probate court or the circuit court, on appeal from the probate court.

If the interpleader desires to claim this property as administratrix of the estate, she must interplead in her representative capacity, and must possess that representative character at the beginning of her suit. If she claims it in her individual capacity, as the widow, under the statute, she should be able to show proceedings in the probate court, under section 2, article 1, Revised Statutes.

The judgment is reversed and the cause remanded.

Philips, P. J., concurs; Hall, J., absent.