198 Mo. App. 101 | Mo. Ct. App. | 1917
In the month of December, 1906, John H. Asahl died testate in California, Missouri, leaving his widow, Anna Margaret Asahl, his sole.devisee and legatee. However he had an adopted daughter who was not mentioned in the will and this court in the case of Buck v. Meyer, 195 Mo. App. 287, on December 18, 1916, declared said daughter to be a pretermitted heir. The effect of this decision was that said daughter was entitled to one-half of the personal estate regardless of the will. There was no administration on the estate of John H. Asahl at his death,, but the widow took charge of the property, both real and personal, and treated the same as her own.
On April 27,1911, after the death of Anna Margaret Asahl, Martin T. Meyer, the plaintiff herein, was appointed administrator of the estate of John H. Asahl, deceased. On March 29, 1917, plaintiff brought this suit and in his petition alleged that at the time of the death of John II. Asahl the said Anna Margaret Asahl took possession of the entire estate of the said John H. Asahl, deceased, and intermingled the same with her own property; that upon the death of the said Anna Margaret Asahl the defendant as her executor took possession of said property of John II. Asahl, deceased, intermingled with that of the individual property of the said Anna Margaret Asahl, deceased; that the mingled property consisted of notes and various certificates of deposit in the California State Bank, aggregating the sum of seventy-nine hundred, forty-four and 20/100 ($7944.20) dollars; and prayed for an accounting of the property belonging to the said John H. Asahl, deceased, together with accumulations thereof and interest thereon. The answer pleaded as a bar to the action that the probate court had exclusive jurisdiction of the controversy; that there was a similar suit pending undisposed of between the parties in the probate court; that the matter had been adjudicated in a case arising in the probate court of Moniteau County, Missouri, appealed to the circuit court of said county and again appealed to the Kansas City Court of Appeals (Meyer v. Nischwitz, 177 S. W. 794), and, in addition, pleaded the Statute of Limitations. On trial before the court plaintiff recovered and defendant has appealed.
Defendant’s first point is that the probate court of Moniteau county has exclusive original jurisdiction to hear and determine this cause in that a full remedy is given plaintiff through the processes of the probate court under sections 70-71-72-73, and 74, Revised Statutes 1909. In the ease of Hook v. Dyer, 47 Mo. 214, the supreme court
In the case at bar the wife, the widow of the deceased, had taken possession of the property of her husband,. without the aid of administration, and for nearly five years mingling the same with her own. Such intermingling had been continued by her executor for six years more. The commingling had thus been going on for nearly eleven years by the widow and her administrator, changing the property so commingled into various other forms of notes and certificates of deposit than those left at the- death of John H. Asahl that at the time of the trial it became almost an impossibility to separate the property of John H. Asahl, deceased, from that of the widow. Following the decision of the supreme court in the case of Hook v. Dyer, supra, we believe the facts of this case make it one of such complication as to confer jurisdiction on the circuit court and that the probate court had no jurisdiction
Defendant next contends that as John H. Asahl, deceased, 1-eft no debts, there was no necessity for the appointment of plaintiff as administrator of his estate, in that defendant says that Anna Margaret Asahl was the sole distributee of the estate of John H. Asahl,'deceased, therefore it would be requiring the doing of a useless and unnecessary thing to force such a distributee to turn over the property to such an administrator; that a
In the case cited the public administrator, nearly twelve years after the death of the owner of the personal. property, attempted to take, charge of the property that had been voluntarily and without the aid of administration, shortly after the death of the deceased, distributed among the next of kin. The Supreme Court in that case held that the administrator could not take possession of the property under such circumstances.
This case, however, is not one where there is but one heir, or where there is more than one and all agree to the distribution of the estate without the aid of administration. Rather it is a case where there are two heirs, one of whom is appropriating the entire estate to her own use to the exclusion of the other. Under such facts defendant’s point is not well taken. Under the circumstances in this case appellant is attempting. to collaterally attack the judgment of the probate court directing plaintiff to take' charge of the estate of deceased, which defendant cannot effectually do. [See Richardson v. Cole, supra.]
The next point raised by defendant is that his plea of res judicata should have -been sustained by the court, in that there was a judgment adjudicating this claim against plaintiff in the case of Meyer v. Nischwitz, supra. In that case Nischwitz was sued personally and not as the executor of the estate of Anna Margaret Asahl, deceased. In this case he is sued in his capacity as executor and not in his individual capacity. In the case at bar the parties are- different from those in the case of Meyer v. Nischwitz,. supra, and therefore that case did not adjudicate the matter now in dispute between tíie -parties. [State v. Branch, 134 Mo. 592.]
Defendant’s next point is that the judgment is excessive. The judgment was for twenty-six hundred and sixty-nine ($2669.) dollars, on account of money de
The last point made by defendant is that this suit is barred by the Statute of Limitations, In this connection defendant’s contention is that as John H. Asahl died in December, 1906, and this suit was not begun until March 29, 1917, more than ten years had elapsed since Anna Margaret Asahl converted the property. This contention cannot be well taken for the reason that there was no one in existence who was authorized to sue for the conversion of the personal property of John H. Asahl, deceased, until the appointment of plaintiff as administrator of his estate, which, as we have already stated, occurred on the 27th day of April, 1911. The Statute of Limitations did not begin to run until this appointment.
The judgment will be affirmed.