Bostian v. Milens

• Decision Date: 02 July 1945
• Docket Number: 39412
• Citation: 188 S.W.2d 945,354 Mo. 153
• Parties: William B. Bostian, as Trustee In Bankruptcy of Bessie Eichenberg, v. M. G. Milens, Administrator of the Estate of Harry C. Milens, Deceased; M. G. Milens, Charles E. Milens, and Rebecca Westerman, Appellants
• Court: Missouri Supreme Court

188 S.W.2d 945

354 Mo. 153

William B. Bostian, as Trustee In Bankruptcy of Bessie Eichenberg, v. M. G. Milens, Administrator of the Estate of Harry C. Milens, Deceased; M. G. Milens, Charles E. Milens, and Rebecca Westerman, Appellants

No. 39412

Supreme Court of Missouri

July 2, 1945

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Transferred to Kansas City Court of Appeals.

Myer M. Rich, Julius C. Shapiro and Walter A Raymond for appellants.

(1) As the record does not affirmatively show that one-fourth of said estate after the payment of debts and costs of administration will exceed $ 7500, this court does not have jurisdiction on the ground that more than $ 7500 is involved. Whitworth v. Monahan's Estate, 339 Mo. 1123, 100 S.W.2d 460; Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149; Smith v. Oliver, 148 S.W.2d 795; Nies v. Stone, 108 S.W.2d 349. (2) Neither is there a federal question involved in the jurisdictional sense. The validity or constitutionality of no federal statute is here questioned. There is no question raised here as to the jurisdiction or authority of the bankruptcy court or the powers of the trustee acting under authority of such court. There is a question of the interpretation and application of a federal statute, but that is insufficient to give this court jurisdiction. Bushnell v. Mississippi & Fox River Drain. Dist., 340 Mo. 811, 102 S.W.2d 871; Service Purchasing Co. v. Brennan, 32 S.W.2d 81; McAllister v. St. Louis Merchants' Bridge Term. Ry. Co., 324 Mo. 1005, 25 S.W.2d 791; United States v. Lufcy, 329 Mo 1224, 49 S.W.2d 8.

Nelson E. Johnson and C. E. Thomson for respondent.

The Supreme Court has jurisdiction. United States ex rel. v. Lufcy, 329 Mo. 1224, 49 S.W.2d 811; Beekman Lbr. Co. v. Acme Harvester Co., 215 Mo. 221, 114 S.W. 1087, affirmed 222 U.S. 300, 56 L.Ed. 208; Board of Trade v. Johnson, 264 U.S. 1, 68 L.Ed. 533; Sec. 12, Art. VI, Mo. Constitution, 1875.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Suit in equity instituted by the trustee of the estate of Bessie Eichenberg, a bankrupt, to cancel and hold for naught written and oral renunciations (by which the bankrupt had undertaken to renounce her rights as an heir at law of her brother Harry C. Milens, deceased) and to decree the plaintiff trustee to be vested with the title to an undivided one-fourth interest in the decedent's estate.

Harry C. Milens died intestate February 1, 1942. He was survived by two brothers, M. G. and Charles E. Milens; and two sisters Rebecca Westerman and Bessie Eichenberg. February 25, 1935, one Fenton had obtained a $ 29,392.28 judgment against Bessie Eichenberg and another. July 20, 1942, Fenton, judgment creditor, filed an involuntary petition in bankruptcy against Bessie Eichenberg in the United States District Court for the Western District of Missouri, and she was adjudicated a bankruptcy August 5, 1942. M. G. Milens as administrator, and M. G. Milens, Charles E. Milens, Rebecca Westerman and Bessie Eichenberg as heirs at law of Harry C. Milens, deceased, are joined as defendants in the instant case. It is alleged in plaintiff's petition that on or about May 25, 1942, defendant Bessie Eichenberg executed and delivered to the administrator a paper writing, dated March 9, 1942, purporting to be a renunciation of any interest which she possessed as an heir at law in the estate of Harry C. Milens, deceased; that, according to the information and belief of plaintiff, Bessie Eichenberg had on one or more occasions prior to the signing of the purported written renunciation, and after the death of Harry C. Milens, attempted to orally renounce her interest in the estate; that, at the time of the purported written and oral renunciations, Bessie Eichenberg was insolvent; that she received no consideration for the purported renunciations; and that the renunciations were fraudulent as to existing creditors and constituted a fraudulent transfer of property within the meaning of the Bankruptcy Act.

Defendants M. G. Milens and Rebecca Westerman filed a separate general demurrer, and defendant Charles E. Milens filed a separate demurrer and motion to dismiss; the demurrers and motion to dismiss were overruled and these defendants, heirs at law, excepted and refused to plead further. M. G. Milens as administrator filed answer stating that as administrator he (though a "stakeholder") had no interest in the outcome of the case, but requested that the plaintiff be put to strict proof. Defendant Bessie Eichenberg did not plead. The trial court found for the plaintiff and decreed that the purported written and oral renunciations of Bessie Eichenberg "be and the same are hereby declared invalid and of no force and effect . . .," and that plaintiff trustee be "vested with and the rightful owner of the undivided interest and distributive share of Bessie Eichenberg, if any, in the estate of Harry C. Milens, deceased, . . ." Defendants, other than Bessie Eichenberg, have appealed.

We are confronted with the question -- has this court jurisdiction of the appeal. Plaintiff claims as assets of the estate in bankruptcy a one-fourth interest in the estate of Harry C. Milens, deceased, which latter estate, consisting entirely of personal property, was inventoried at $ 93,102.14. The cash assets were shown in the administrator's first semi-annual settlement to have been $ 88,037.78. Demands had been allowed prior to September 24, 1942 (the date the semi-annual settlement was signed) in the aggregate amount of $ 49,852.62, after which allowances there was a balance of $ 38,185.16 cash, and other assets of $ 3131.25 value, in the hands of the administrator. On September 24th there remained more than four months during which time demands could be exhibited for allowance. (Article 7, Chapter 1, R.S. 1939, Section 181 et seq., Mo. R.S.A. 1939, sec. 181 et seq.) The record herein is devoid of any showing of the amounts of other demands pending on the date of the semi-annual settlement, or of the amounts of demands subsequently exhibited within the time allowed by law, which had been allowed or were pending at the time of trial, and there is no evidence in the record of the amount of expenses of administration. (We know from our own records that another demand has since been allowed in the amount of $ 10,450. See State ex rel. Bostian, Trustee, v. Ridge, Judge, 354 Mo. 145, 188 S.W.2d 941.) Therefore, the record does not affirmatively show beyond conjecture that one-fourth interest in the estate of Harry C. Milens, deceased, after the payment of allowed demands and expenses of administration, will exceed $ 7500. We do not indulge in speculation and conjecture in determining this court's jurisdiction. This court does not have jurisdiction of the appeal on the ground of the "amount in dispute." Smith v. Oliver (Mo. Sup.), 148 S.W. 2d 795; and Nies v. Stone (Mo. Sup.), 108 S.W. 2d 349, and cases therein cited.

But appellants say that the validity of "authority exercised under the laws of the United States" is here questioned. ("The supreme court shall have exclusive appellate jurisdiction in all cases involving . . . the validity of a treaty or statute of the United States, or any authority exercised under the laws of the United States, . . ." Section 3, Article V, Constitution of Missouri, 1945. And see Section 12, Article VI, Constitution of Missouri, 1875, and Section 5, Article VI, Amendment of 1884.) Heretofore, the United States Circuit Court of Appeals, Eighth Circuit, has reviewed a case in which the District Court of the United States for the ...