Bowles v. Troll

• Decision Date: 06 April 1915
• Docket Number: No. 13049.,13049.
• Citation: 175 S.W. 324,190 Mo. App. 108
• Parties: BOWLES v. TROLL, Public Adm'r.
• Court: Missouri Court of Appeals

175 S.W. 324

190 Mo. A. 108

BOWLES v. TROLL, Public Adm'r.

No. 13049.

St. Louis Court of Appeals. Missouri.

April 6, 1915.

Appeal from St. Louis Circuit Court; Jas. D. Withrow, Judge.

Bill by John Bowles, Guardian of Maggie V. Wilson, insane, against Harry Troll, Public Administrator of the City of St. Louis. From a judgment of the circuit court for defendant, plaintiff appealed to the St. Louis Court of Appeals (172 Mo. App. 102, 154 S. W. 871), which transferred the case to the Supreme Court, which retransferred the case to the Court of Appeals (171 S. W. 326). Judgment of circuit court reversed and remanded, with directions.

A. V. Proudfoot, of Indianola, Iowa, Warren D. Isenberg, of Los Angeles, Cal., and. Chas. A. Powers, of St. Louis, for appellant. Henderson, Marshall & Becker, all of St. Louis, for respondent.

REYNOLDS, P. J.

In his petition in this case appellant, plaintiff below, avers that he is the duly appointed and qualified resident guardian (meaning that he is a citizen and resident of the state of Iowa), of one Maggie V. Wilson, an insane person, who at all times mentioned in the petition before and now resides in Warren County, Iowa; that he is such guardian by virtue of appointment by the District Court of Warren County, Iowa, that court having jurisdiction under the laws of the state of Iowa over the appointment of guardians for insane persons, Mrs. Wilson, then domiciled in that county and state, having been duly adjudged insane on March 30th, 1897, by that court; that on December 18th, 1906, Mrs. Wilson, then a resident of Iowa, but having property in the city of St. Louis, was duly found and adjudged insane by the probate court of that city, and defendant, public administrator of the city of St. Louis, duly appointed her guardian in Missouri by that probate court, and as such is in charge of the estate of his said ward which is situated in the state of Missouri; that from the time of his appointment as guardian by the district court of Warren county, Iowa, plaintiff has continued to act continuously up to the present time as such guardian, having filed a bond in the sum of $20,000. which bond has been duly approved and filed in the district court of Warren county, Iowa, and is still in full force and effect; that on or about April 23, 1910, the district court of Warren county, Iowa, authorized and directed plaintiff to collect the estate of his ward in the hands of this defendant by proper proceedings; that the ward is a widow with three children, one of them a minor, dependent upon the ward's estate for support; that the ward has no estate in Iowa except a small pension from the government of the United States as widow of a deceased soldier and is now and ever since the adjudication of her insanity has been confined in a public institution in the state of Iowa. Averring that plaintiff is related by marriage to his ward and is a fit and suitable person to be guardian of the ward and that the interest of the ward would be best subserved by closing the guardianship in Missouri and transferring the funds to the domiciliary Iowa guardian, namely, plaintiff, thereby saving the cost and expense of the further administration in Missouri and enabling the resident guardian, under the orders of the resident court, to care for the comfort and needs of the ward and the members of her family dependent upon her for education, maintenance and support, and averring that the appointment of defendant was procured as an ancillary proceeding to the Iowa proceeding with the advice and consent of plaintiff as resident guardian and was necessary at the time for the reason that the laws of Missouri at that time did not permit plaintiff to be appointed guardian in Missouri, he being a non-resident of that state, plaintiff prays the court that defendant be required to close the administration in Missouri, make final settlement and pay the balance of the fund in his hands over to plaintiff as the resident guardian of the ward upon plaintiff executing in proper form a receipt therefor, and for such other and further equitable relief as plaintiff may be entitled to.

The petition being filed in the circuit court of the city of St. Louis, defendant entered his appearance but did not file any pleadings, the cause being submitted and tried to the court upon an agreed statement of facts which practically followed the averments of the petition, it being further agreed, among other things, that there is in the hands of defendant, as guardian, the sum of about $10,000, and that Maggie V. Wilson is not indebted, so far as known, to any person in the state of Missouri in any sum, and that notice of his appointment had been duly published and that two years have passed since the appointment of defendant as guardian, and that all claims that have been proven against the estate of the ward in Missouri have been paid.

The court at the conclusion of the trial, rendered judgment dismissing the bill. From this action of the court plaintiff duly perfected his appeal to our court. We transferred the cause of our own motion to the Supreme Court, on the theory that the amount in dispute exceeded our jurisdiction. In the Supreme Court, a motion having been made to transfer the cause back to our court, it was at first overruled but afterwards the Supreme Court reconsidered that action and transferred the cause to our court where it has been submitted and heard on briefs and argument.

The opinion of the Supreme Court in transferring the cause to our court, not yet officially reported, will be found under the title of Bowles v. Troll, 171 S. W. 326. Judge Lamm, who delivered the opinion, in stating why their first ruling on the motion to re-transfer had been improvidently made, has set out the issues here involved so clearly, that even at the expense of repeating what has been there said, we deem it useful to reproduce it in part. After, stating the facts very briefly, Judge Lamm there said:

"In the case at bar neither plaintiff nor defendant claim to own the fund in their own right. Contra, both plaintiff and defendant concede it belongs to and constitutes practically the corpus of the estate of their unfortunate ward. Both of them therefore are but trustees. She is the beneficiary, and the dispute is not over her right to the fund, but it is over their respective rights to the custody of it while it is being used under the supervision of the probate court for its true beneficial owner. So, plaintiff does not ask a money judgment against defendant to be enforced by fi. fa. He invokes merely the power of a chancellor to do the following thing, to-wit, to coerce a final settlement in the proper probate court of the ancillary guardianship with the ultimate view and purpose of an order of transfer of what then remains of the fund from the ancillary guardian to the domiciliary guardian at the place of residence of the ward in order to throw off the burden of expense, waste, and inconvenience of two administrations. Hence the real justiciable dispute is over the power of a court of equity to make that order either by virtue of its superintending control over the probate court, or under jurisdiction and ancient head of chancery jurisdiction over the estates of insane persons. Necessarily involved, though incidental to the main question thus outlined, is the value of the right in defendant to the custody of the fund, and this, in turn, springs from the perquisites, emoluments, and fees of his trusteeship falling to him in administering the estate."

The conclusion is that jurisdiction is with our court and not with that of the Supreme Court.

The case is not without difficulty and in a way is one of first impression in cur courts. We must endeavor to apply to its facts, settled principles.

At the outset we are met with the proposition that non-resident guardians of insane persons, appointed by the courts of another state, have no authority, under our statute, to maintain actions in their right as guardians in the courts of our state. If plaintiff is here to be considered as suing in the mere capacity of a guardian, holding his appointment as such from an outside, so to say, a foreign, jurisdiction, he cannot recover on his mere right as guardian. Thus he cannot, as guardian appointed by an outside state, maintain an action in this state to recover a debt due his ward. Without elaboration of authorities on this, see the very clear enunciation of it by Chancellor Cooper in Yandell v. Elam, 1 Tenn. Ch. 102, loc. cit. 107. We have no statutory law in our state authorizing a foreign guardian of an insane ward to maintain an action in this state. The nearest approach to suca authority is to be found in section 529, Revised Statutes 1909, that section being section 3699, Revised Statutes 1899, as amended by the Act of June 12th, 1909 (Laws 1909, p. 584). That section as amended in 1909 provides that the probate court in which the adjudication of insanity has been had of a non-resident having property in this state, "if it be made to appear to the court that such insane person has a guardian or curator duly appointed in the state where such insane person resides, [it] shall order such guardian or curator to take charge as the curator of the estate of such insane person in this state." Obviously, if such appointment was denied, this law authorizes the foreign guardian or curator to maintain an action in this state fox the enforcement of this right, otherwise the right given could not be made available save on the voluntary action of parties. But as the respondent here was appointed in 1908, and that amendment was not made until 1909, plaintiff here, as pleaded and as admitted, could not then have been appointed as guardian, he being a non-resident. While it is true that in the article relating to Insane persons and the management of their estates, that is article 19, chapter 2, Revised Statutes 1909, there is no express provision...