Estate of Widmeyer, Matter of

• Decision Date: 29 October 1987
• Docket Number: No. 14961,14961
• Citation: Estate of Widmeyer, Matter of, 741 S.W.2d 758 (Mo. App. 1987)
• Parties: In the Matter of the ESTATE OF Leslie Eugene WIDMEYER, Deceased, Katherine B. ALKEMA, Administrator of the Estate of Leslie Eugene Widmeyer Under Appointment by the Superior Court of the California County of San Diego, Plaintiff-Appellant, v. Harry E. WIDMEYER, Individually and as Personal Representative of the Estate of Leslie Eugene Widmeyer By Appointment of the Circuit Court of Greene County, Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 758

741 S.W.2d 758

In the Matter of the ESTATE OF Leslie Eugene WIDMEYER, Deceased Katherine B. ALKEMA, Administrator of the Estate of Leslie Eugene Widmeyer Under Appointment by the Superior Court of the California County of San Diego, Plaintiff-Appellant, v. Harry E. WIDMEYER, Individually and as Personal Representative of the Estate of Leslie Eugene Widmeyer By Appointment of the Circuit Court of Greene County Missouri Defendant-Respondent.

No. 14961.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 29, 1987.

Motion for Rehearing or transfer Denied Nov. 20, 1987.

Application to Transfer Denied Jan. 20, 1988.

John L. Sullivan, St. Louis, for plaintiff-appellant.

Charles (Ed) Lee, Walker, Salveter, Lee & Graff, Springfield, for defendant-respondent.

FLANIGAN, Judge.

On November 12, 1985, Leslie Eugene Widmeyer, a resident of California, died intestate in that state. He was survived by a half-brother, Harry E. Widmeyer. On January 17, 1986, Harry E. Widmeyer filed, in the Probate Division of the Circuit Court of Greene County, an application for letters of administration in the Estate of Leslie E. Widmeyer, Deceased. On the same date the Missouri court entered an order granting "Supervised Letters of Administration" and issued such letters to Harry E. Widmeyer.

On May 9, 1986, Katherine B. Alkema, styling herself "Administrator (sic) of the Estate of Leslie Eugene Widmeyer Under Appointment by the Superior Court of the California County of San Diego," as "plaintiff," filed, in the Missouri court, a document entitled "Petition to Determine Title to Property." The contents of that petition will be set forth later. Named as defendant was "Harry E. Widmeyer, Individually and as Personal Representative of the Estate of Leslie Eugene Widmeyer, Deceased." Defendant filed a motion to dismiss the petition on several grounds, including the following: "That plaintiff does not have the legal capacity or standing to prosecute the instant cause of action."

The trial court, following a hearing on the motion, entered its order dismissing the petition. The order did not recite the ground or grounds on which it was based. The record on appeal contains only the legal file. There is no transcript of the evidence, if any, adduced at the motion hearing. Plaintiff appeals.

Plaintiff's first point is that the trial court erred in granting the motion to dismiss on the ground that plaintiff had no standing to sue in that plaintiff had standing pursuant to § 472.013. ¹ For the reasons which follow, this court holds that the trial court properly dismissed the action on the ground plaintiff lacked standing to sue and that § 472.013 is of no aid to plaintiff. This holding makes it unnecessary to consider plaintiff's other points.

The caption of the petition listed the parties, respectively, as "plaintiff" and "defendant," as indicated above. It should be noted that, although Widmeyer was designated as defendant "Individually and as Personal Representative, ..." the caption designated the plaintiff only in her capacity as administrator (sic) and not individually. Plaintiff appeals only in her representative capacity.

The petition, which was verified by Katherine B. Alkema, alleged: Plaintiff is the California administrator of the estate of Leslie E. Widmeyer, deceased; decedent died intestate in San Diego County, California on November 12, 1985, having been a resident of California since the 1940's; decedent "was survived by a half-brother, the defendant Harry E. Widmeyer, and the plaintiff Katherine B. Alkema, who has a property interest in the estate of the decedent as his nonmarital partner"; at the time of his death decedent owned certain assets which have been reduced to the possession of the defendant; the assets are:

Item                  Asset                    Value
                ----  -------------------------------------  ----------
                 A    GNMA Certificate No. 02171807SF        $38,079.11
                 B    Bank account, Boatmen's National
                      Bank, Springfield, Missouri              1,586.27
                 C    Bank account, Security Pacific
                      Bank, San Diego, California              9,340.13
                 D    Bank account, Security Pacific
                      Bank, Panorama City, California          5,347.67
                 E    1984 Jaguar automobile                  34,580.20
                 F    Tangible personal property, including
                      gold watches and diamond rings          10,000.00
                

The petition further alleged: Defendant physically removed Item A "from the former possession of decedent in California" and transported it to Missouri where it is inventoried in the Missouri estate; defendant inventoried Item B as an asset of the Missouri estate; Item B has a "Missouri situs"; defendant obtained possession of Item C and Item D by filing an affidavit pursuant to § 630 of the Probate Code of California (Small Estates Procedure) and converted same to his own use and did not "list them" in the Missouri estate; defendant secured transfer of the title to Item E pursuant to § 5910 of the California Vehicle Code, "wherein he represented that he would otherwise be entitled to transfer under § 630 of the Probate Code of California"; defendant removed Item F from the former residence of decedent.

The petition further alleged: All of the foregoing property is now in the possession of the defendant, "either individually or as claimed personal representative-sole heir," and is properly the property "of plaintiff Katherine B. Alkema as personal representative of the decedent's estate ... in that defendant secured possession of all such property pursuant to California law based upon the misrepresentation that the total value of decedent's estate subject to probate did not exceed $60,000; Moreover, there are adverse claims against the estate which the Small Estates Procedure is not designed to resolve and, therefore, probate in California is necessary."

The prayer of the petition was that the court determine that "plaintiff is entitled to the title to and possession of all of the above-described property pursuant to the provisions of § 473.340, ² in that the defendant is adversely withholding and claiming both title and right to possession of the described property. Items of property not inventoried by the defendant in the decedent's estate are properly the subject matter of a constructive trust to be imposed by this Court upon such property in that such items are properly subject to probate in the State of California."

Significantly, plaintiff did not file with the Probate Division of the Circuit Court of Greene County an authenticated copy of her appointment as California administrator or a copy of any official bond which she has given. It should be noted also that the petition makes no claim that the California administrator ever had possession of any of the described property.

Missouri applies the general rule that an administrator, appointed in state A, cannot sue in his representative capacity in state B in the absence of a statute in state B authorizing him to do so. Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504, 506 (1940); In re Thompson's Estate, 339 Mo. 410, 97 S.W.2d 93, 96 (1936); Wells v. Davis, 303 Mo. 388, 261 S.W. 58, 61 (1924); Naylor's Adm'r v. Moffatt, 29 Mo. 126, 128-129 (1859); Bank of Seneca v. Morrison, 200 Mo.App. 169, 204 S.W. 1119, 1122 (1918); Hill v. Barton, 194 Mo.App. 325, 188 S.W. 1105, 1110 (1916); Miller v. Hoover, 121 Mo.App. 568, 97 S.W. 210 (1906); 34 C.J.S. Exec. and Adm'r, § 1008, p. 1256; 31 Am.Jur.2d, Exec. and Adm'r, § 774, p. 312; Goodrich and Scoles, Conflict of Laws (4th Ed.), §§ 185-186, p. 357. Letters of administration have no extraterritorial effect. State v. Cross, 314 S.W.2d 889, 894-895 (Mo. banc 1958); Demattei v. Missouri-Kansas-Texas R. Co., supra, 139 S.W.2d at 506; In re Thompson's Estate, supra, 97 S.W.2d at 96; Wells v. Davis, supra, 261 S.W. at 61; Hartnett v. Langan, 282 Mo. 471, 222 S.W. 403, 409 (1920); Bank of Seneca v. Morrison, supra, 204 S.W. at 1122; Hill v. Barton, supra, 188 S.W. at 1110; Miller v. Hoover, supra, 97 S.W. at 211; Emmons v. Gordon, 140 Mo. 490, 41 S.W. 998, 1001 (1897); McPike v. McPike, 111 Mo. 216, 20 S.W. 12, 13 (1892); First Nat. Bank of Brush, Colo. v. Blessing, 231 Mo.App. 288, 98 S.W.2d 149, 152 (1936); Naylor's Adm'r v. Moffatt, supra, at 128-129. It has been said that a foreign administrator, seeking to recover on a debt to his decedent, lacks legal capacity to sue. Gregory v. McCormick, 120 Mo. 657, 25 S.W. 565, 566 (1894).

One reason underlying the general rule is "that to permit the foreign administrator to sue might result in the exhaustion or diversion of the assets of the estate to the injury of local creditors." Demattei v. Missouri-Kansas-Texas R. Co., supra, 139 S.W.2d at 506.

With respect to a claim belonging to the decedent, the court said, in In re Thompson's Estate, supra, 97 S.W.2d at 97:

"The general rule as stated in Restatement of Conflict of Laws is: 'In the absence of a statute permitting it, a foreign administrator cannot sue to recover a claim belonging to the decedent.' The reason upon which such rule is based is that 'the administrator is not himself the creditor, and can sue only as he is empowered to do so by law. He gains no authority by virtue of an appointment as officer of the court of one state to act as officer in another state. He has no official authority as representative in the courts of the second state and cannot sue in a representative capacity there. Nor can he avoid his incapacity to sue in a foreign state by bringing suit through an attorney in fact, or by instituting action in a federal court.' Restatement of Conflict of Laws under section 507. Thus we see letters of administration have no extraterritorial force and confer upon the holder no extraterritorial powers."

In Miller v. Hoover, supra, 97 S.W. at 211 the court said:

"But, there are cases in which a foreign executor or administrator may maintain an action...