278 Mo. 74 | Mo. | 1919
The trial court sustained a demurrer to plaintiff’s petition. Both petition and demurrer are short, but they go to the vitals of the case, and are material. The petition reads:
“Plaintiff states that he is, and at all the times hereinafter stated,'was the duly elected and qualified Public Administrator of the City of St. Louis; that the defendant is,,-and at all the times hereafter stated, was a cor*78 poration duly organized under the acts of Congress of the United States as a national bank, having its domicile and residence and principal place of business in the City of St. Louis, and authorized by said act of Congress and by its charter to do a general banking business in the City of St. Louis; that during her lifetime, and at the time of her death, which occurred on September 9, 1909, Lucia M. Laird was the owner of thirty-three shares of the capital stock of the defendant corporation, of the par value of one hundred dollars each, but which was of greater real or market value than the par value, which plaintiff alleges upon information and belief to be of the value of three hundred and twenty-five dollars a share, and that as such owner of said stock said Lucia M. Laird was, and her estate now is, entitled to share in the earnings and proffits of the defendant; that said' stock ownership was evidenced by a certificate of stock, numbered, to-wit, 5334, issued by defendant to said Lucia M. Laird; that said Lucia M. Laird at and prior to her death was a resident of the State of Illinois, and had her domicile at the City of Alton, Illinois; and at the date of her death had the certificate aforesaid in her possession at her said domicile; that said Lucia M. Laird died at her said domicile on, to-wit, September 9,1909, testate, leaving valuable property in the State of Illinois, which is now being administered upon in said State by her executrix, and that said executrix has in her possession the certificate of stock evidencing the right of said Lucia M. Laird to share in the capital, earnings and profits .of defendant aforesaid, but plaintiff alleges that the situs of the property, right and asset aforesaid was' and is in' St. Louis, Missouri, and was and is an asset of the estate of said Lucia M. Laird in the State of Missouri and in the City of St. Louis, and can only be administered upon in the City of St. Louis, and never was assets of said estate in the State of Illinois; that on, to-wit, June 1, 1910, plaintiff as such public administrator took charge of and duly appointed and qualified as ancillary administrator of the estate of said Lucia*79 M. Laird in the City of St. Lonis, Missouri, and has ever since been and is now proceeding to administer upon the said estate; that the title to the said thirty-three shares of stock in the defendant corporation and the right to share in the capital, earnings, profits and dividends thereon of the defendant corporation passed to and vested exclusively in plaintiff as such ancillary administrator, on the death of said Lucia M. Laird, on September 9,1909; that immediately upon becoming such ancillary administrator and taking charge of said estate plaintiff notified defendant of such fact and defendant agreed to recognize and treat plaintiff as such, and to pay plaintiff all dividends on said stock and to send to plaintiff all notices of stockholders’ meetings, etc., that heretofore plaintiff has demanded of defendant that it issue to him as such ancillary administrator a certificate evidencing the ownership of said thirty-three shares of stock of defendant corporation, but that defendant has failed and refused and still fails and refuses so to do; that since September 9, 1909, the defendant has declared dividends upon the stock of said corporation, aggregating large sums, the exact amount of which plaintiff cannot state, but which plaintiff states upon information and belief to consist of two dividends of four per cent each, upon the capital stock of defendant corporation, and which plaintiff has demanded from defendant, but defendant has failed, and refused, and still fails and refuses to account for or pay to plaintiff.
“Wherefore, plaintiff prays that the defendant be ordered, adjudged and decreed to disclose and state, but not under oath, an oath being expressly waived, how much, and when, if any, dividends have been declared by it on the capita,! stock of defendant since September 9, 1909; that defendant be ordered, adjudged and decreed to issue and deliver to plaintiff as such ancillary administrator of the estate of Lucia M. Laird, deceased, a certificate for thirty-three shares of the capital stock of the defendant corporation, arid to pay over to plaintiff all dividends that have been declared by defendant*80 on said stock and properly applicable thereto since September 9, 1909, and that plaintiff have judgment for costs herein, and for such other and further orders and decrees as may be right and proper, and as to the court may seem fit and proper, and for general relief, and plaintiff will ever pray.”
The demurrer is, in a way a general one, and (omitting caption) reads: “Now comes the defendant in the above entitled cause, and demurs to the petition herein filed by the plaintiff, for the reason that the said petition does not state facts sufficient to constitute a cause of action, and for the further reason that the petition shows that the plaintiff is not entitled to the relief prayed for, and for the further reason that the petition shows, upon its face, that the plaintiff is not entitled to administer upon the estate of Lucia M. Laird.”
The whole case turns upon these pleadings. What plaintiff .avers as to. the facts, stands confessed by the demurrer.
The sixth ground of demurrer as' found in the statute, supra, reads: “Or, sixth, that the petition does not state facts sufficient to constitute a cause of action.” This ground is clearly covered by the demurrer in this case.
There is added in the demurrer before us this language: “and for the further reason that the petition shows that plaintiff is not. entitled to the relief prayed for.” This, we take it, is but another method
So that to summarize the issues, as made by the pleadings, the petition is challenged (1) because it fails to state facts sufficient to constitute a cause of action, and (2) because plaintiff has not legal capacity to sue. These, however, are broad enough to raise several questions, and those ■ we will take in such order as will best subserve brevity of opinion.
So in the case at bar, when Mrs. Laird died in Illinois, the situs of the property interest, represented hv the certificate of stock, was in St. Louis, where the corporation was domiciled. The Richardson case, supra, is a well considered case, and we can’t well escape its conclusions and their effect in this case. We therefore hold that Mrs. Laird, under the admitted facts, died possessed of property in this State.
The statement italicized is borne out by the following: Leeper v. Taylor, 111 Mo. l. c. 321, and the Missouri cases therein cited: State to use Betts v. Purdy, 67 Mo. l. c. 93; McCabe v. Lewis, 76 Mo. l. c. 296; Dunn v. Bank, 109 Mo. l. c. 90; Vermillion v. LeClare, 89 Mo. App. l. c. 55; American Car and Foundry Co. v. Anderson, 211 Fed. 301.
This case law proceeds upon the theory that where the public administrator assumes to act and does act, the question of his power to act in the given case cannot be questioned in a collateral proceeding. The determination of whether or not he is rightfully acting in a given estate is a matter for the probate court. [State to use Betts v. Purdv, 67 Mo. l. c. 93; McCabe v. Lewis, 76 Mo. l. c. 296.]
In the Anderson case, supra, a Federal case from Missouri, it is said at page 307: “It is the settled law of Missouri that the authority of a public administrator to take charge of an estate cannot be assailed collaterally. [Dunn v. German American Bank, 109 Mo. 90, 18 S. W. 1139; Leeper v. Taylor, 111 Mo. 312, 19 S. W. 955; Wetzell v. Waters, 18 Mo. 396; Richardson v. Busch, 198 Mo. 184, 95 S. W. 894, 115 Am. St. Rep. 472; Vermillion v. LeClare, 89 Mo. App. 55.] ”
So that it could be with propriety held that the plaintiff having exercised his. judgment in determining
But we do not stop here. We have held that Mrs. Laird left an estate in Missouri. Whether she had creditors here, is immaterial; [Richardson v. Busch, 198 Mo. l. c. 184; Becraft v. Lewis, 41 Mo. App. l. c. 552.]
It has been urged, that this clause has reference to estates of intestates and not to the estates of testates. The clause contains no such restrictions. The second clause of the statute does have such a restriction, as also does the fifth clause, but not so with the fourth clause. The purpose of this fourth clause was to give the public administrator the power to act for the protection of the estate, whether the party died testate or intestate. This, because the foreign ‘ administrator or executor of a person dying testate in another State acquires no right to protect the Missouri estate. Our courts.are not open to him, but they are open to our public administrators, and other ancillary administrators appointed by our probate courts.
Nor will it do to say that an estate in Missouri (or elsewhere for that matter) with no one in charge thereof is not one “exposed to loss or damage” with
So that we rule: (1) that Mrs. Laird left an estate in Missouri under the facts of the petition; (2) that the petition charges and the demurrer admits that plaintiff, as public administrator, was actually in charge of the estate, and that his right to administer could not he questioned in a collateral proceeding; (3) that under clause four of Section 302, Revised Statutes 1909, the public administrator had the power to act, and for that reason his right to act could not he questioned, unless for reasons shown in the probate court, and (4) ' that with these matters ruled in favor of the plaintiff, we can see no good reason why he should not have the relief prayed for in his petition, if his facts upon a final trial measure up to those pleaded.
The demurrer should have been overruled. Judgment is reversed and cause remanded for disposition in accordance with this opinion.