Blum v. Salyer

• Decision Date: 01 May 1969
• Docket Number: Civ. A. No. 17003-3.
• Citation: 299 F. Supp. 1074
• Parties: Ofelia BLUM, Administratrix of the Estate of Ralph H. Blum, Deceased, Plaintiff, v. Garnette SALYER, Defendant.
• Court: U.S. District Court — Western District of Missouri

299 F. Supp. 1074

Ofelia BLUM, Administratrix of the Estate of Ralph H. Blum, Deceased, Plaintiff, v. Garnette SALYER, Defendant.

Civ. A. No. 17003-3.

United States District Court W. D. Missouri, W. D.

May 1, 1969.

Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for plaintiff.

Billy S. Sparks, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, Mo., for defendant.

ORDER SUSTAINING DEFENDANT'S MOTION TO DISMISS AND JUDGMENT OF DISMISSAL

BECKER, Chief Judge.

In this cause, plaintiff sues as administratrix of the Estate of Dr. Ralph H. Blum, which estate is numbered 2521 in the "Court of the County Judge, Martin County, Florida." Her claim is that on or about December 1, 1961, the decedent and the defendant (then married to the decedent and then known as Garnette Blum) conveyed in trust to defendant, as trustee, certain lands situated in Jackson County, Missouri, which are fully described in the petition; that defendant gave the decedent no consideration for said conveyance; that defendant fraudulently induced decedent to convey the said lands by falsely stating and promising that she would hold the lands in trust for him; that thereafter defendant has "wilfully and wrongfully failed and refused to convey legal title to decedent and/or his successors and representatives"; that "defendant has held legal title to and managed said properties under the aforesaid trust obligation but has not accounted to decedent, or to his successors and representatives, although it has been demanded she do so; defendant has refused to render an accounting"; and that "defendant has refused to convey legal title to plaintiff as administratrix of decedent's estate, although it has been demanded she do so."

By her motion filed herein on January 15, 1969, the defendant moves to dismiss this claim on the ground that it is not cognizable under Missouri law, which holds generally that foreign executors and administrators are not competent to sue in Missouri courts under the lex fori. Naylor's Administrator v. Moffatt, 29 Mo. 126; May v. Burk, 80 Mo. 675; Gregory v. McCormick, 120 Mo. 657, 25 S.W. 565; Wells v. Davis, 303 Mo. 388, 261 S.W. 58; In re Thompson's Estate, 339 Mo. 410, 97 S.W.2d 93. Such disqualification is applicable in a suit brought in a federal court in Missouri based on diversity of citizenship, which is the present case. Turner v. Alton Banking & Trust Co. (C.A.8) 166 F.2d 305; Buder v. Becker (C.A.8) 185 F.2d 311. "It is well settled that a personal representative of a deceased person cannot maintain an action in his official capacity in a state other than that wherein he was appointed, except in circumstances where express permission is granted by statute." Fitch v. Firestone (D.R.I.) 184 F.Supp. 424. See also Moore v. Mitchell, 281 U.S. 18, 50 S.Ct. 175, 74 L.Ed. 673; 1 Restatement, Conflict of Laws, § 507; 31 Am.Jur.2d, Executors and Administrators, § 680.

Section 507.020 of the Missouri Revised Statutes, 1959, V.A.M.S., gives the executor, administrator, guardian, guardian ad litem or other person empowered by the laws of another state power to sue in a representative capacity whenever a claim exists for the incapacitated person under the law of said other state. As plead in this complaint, however, the alleged fraudulent inducement of the conveyance by defendant would not be a claim existing under the law of the state of Florida, but rather under the law of the state of Missouri.

"It is a principle recognized and inflexibly applied in every country governed by the common law, that the transfer of real property is exclusively governed by the laws of the situs rei, whether in relation to the capacity of the owner to transfer, the solemnities necessary to a valid transfer, or the title of the transferee."

First National Bank of Attleboro v. Hughes, 10 Mo.App. 7, 13-14; see also Booth v. Scott, 276 Mo. 1, 38, 205 S.W. 633; State v. Clark, 178 Mo. 20, 21, 76 S.W. 1007 (1903); Keith v. Keith, 97 Mo. 223, 228, 10 S.W. 597. See also 1 Restatement, Conflict of Laws § 377, to the effect that the place of the wrong where land is involved is the situs rei.

Plaintiff contends that the motion to dismiss must be denied because (1) all the realty listed in the complaint as having been conveyed in trust to defendant has since been converted to personalty and (2) because Section 473.691 RSMo. Amended Laws 1967, V.A.M.S., "allows persons holding the assets of a non-resident decedent to hand them over to a foreign administrator without liability." The cited section reads as follows:

"Any person, firm or corporation upon whom no demand has been made by a personal representative or other person authorized by this state to collect a nonresident decedent's personal property may, at any time sixty days or more after his death, transfer, pay or deliver personal property of the nonresident decedent to the foreign personal representative or, if none, to such other person as may be entitled thereto, under the laws of said foreign state, and shall not be liable for the debts of or claims against the nonresident decedent or his estate by reason of having made the transfer, payment or delivery." (Emphasis added.)

The emphasized language of the statute would seem to indicate the optional character of the statutory privilege of the holder of the personal property. It does not give the foreign representative a right to compel payment or delivery. Defendant, however, cites the 1949 case of Becker v. Buder (E.D.Mo.) 88 F.Supp. 609, 612, which held that this language did indeed give the foreign administrator the right to sue. It was the reasoning of that court that:

"If we hold the domiciliary executor or administrator cannot sue, as he is here doing, we accuse the Legislature of having created a situation where there can be no local administrator with a right to the property in issue and where the foreign administrator is powerless, if delivery of the personalty due him under the statute is not voluntarily made." (Emphasis added.)

Under the statutory scheme in effect at the time of this decision, Section 272, RSMo. 1939, prohibited local administration of the shares of stock (which the Buder case was concerned with, in a case where there were no other assets in the estate), bonds, credits, or choses in action in a nonresident decedent's estate except upon the application of a creditor or upon a showing by an ancillary administrator within the state that the personal property or lands of the decedent in the state would not be sufficient to discharge the outstanding debts:

"Administration of estates of nonresident decedents — how and when made.

"No letters of administration shall be granted upon the estate of any decedent non-resident as to any shares of stock, bonds, credits or choses in action except upon the application of a creditor within this State or upon the showing to the Court by an ancillary administrator within this State that the lands and other personal property of such decedent within this State will not be sufficient to discharge the debts of such estate. Such application or showing shall be made in the probate court of that county in Missouri in which letters of administration might otherwise be granted, within a period of six months after the granting or refusal of letters upon the estate of such decedent at his domicile, or in the event no order refusing letters is made nor administration had upon the estate of such decedent at his domicile, then within six months after the date of death of such decedent. Unless before the expiration of such period of time an ancillary administrator within this State, pursuant to application or showing as herein provided, has made a demand for transfer, payment or delivery upon the issuer, obligor or debtor of or upon such shares of stock, bonds, credits, or choses in action, such shares of stock, bonds, credits or choses in action may be transferred, paid or delivered to or in the name of the domiciliary executor or administrator or upon his order, or to any heir, legatee, distributee, or other person entitled thereto; and the person, firm or corporation or agents thereof making such transfer, payment or delivery shall not be liable for the debts of or claims against any such decedent or his estate by reason of having made such transfer, payment or delivery. Any letters granted upon the application of a creditor under the terms of this section shall be revoked immediately upon showing to the court the satisfaction in any manner of the debt upon which such application was granted, together with all other claims, and debts filed on or before the date of such satisfaction and the payment of all court costs and fees of such proceedings."

However, the presently existing statutory scheme regarding the administration of the personalty of a nonresident permits local administration not authorized by the section of the 1939 statutes relied on by the court in Buder v. Becker, supra. This is made clear by Section 473.671, RSMo, which provides that "the courts of this state have jurisdiction over all tangible and intangible property of a nonresident decedent having a situs in this state," and Section 473.668 providing for the original administration of the local assets of a nonresident decedent "as if the decedent were a resident." See also Section 473.684, providing that the ...