De Gheest's Estate, In re

• Decision Date: 08 October 1951
• Docket Number: No. 42147,No. 2,42147,2
• Citation: 243 S.W.2d 83,362 Mo. 634
• Parties: In re DE GHEEST'S ESTATE. SCHAPOSCHNIKOFF v. DE GHEEST'S ESTATE et al
• Court: Missouri Supreme Court

Page 83

243 S.W.2d 83

362 Mo. 634

In re DE GHEEST'S ESTATE SCHAPOSCHNIKOFF v. DE GHEEST'S ESTATE et al.

No. 42147.

Supreme Court of Missouri, Division No. 2.

Oct. 8, 1951.

Motion for Rehearing or to Transfer to Court en Banc

Denied Nov. 12, 1951.

Samuel A. Mitchell, James M. Douglas, Harold I. Elbert and Charles M. Spence, all of St. Louis (Thompson Mitchell, Thompson & Douglas, St. Louis, of counsel), for appellant.

Jacob M. Lashly, John H. Lashly and Lashly, Lashly & Miller, all of St Louis, for respondent.

BARRETT, Commissioner.

On February 5, 1946 Alexandre Schaposchnikoff, a French citizen, filed a demand against the estate of May Scullin De Gheest in the Probate Court of the City of St. Louis. The Probate Court allowed the claim and upon appeal and trial in the Circuit Court judgment was entered for the sum claimed, $28,000, together with six per cent interest from January 1, 1946. Mrs. De Gheest's executor, the Mercantile-Commerce Bank and Trust Company, appeals from the $35,216.80 final judgment.

Since the claim originated in the Probate Court there were no formal pladings. Mr. Schaposchnikoff's notice of demand states that his claim is 'founded on account for money had and received by decedent from claimant. A copy of said account is attached hereto and made a part hereof.' The notice then sets forth the following document, 'a reconnaissance de dette,' dated April 21, 1943, signed by Mrs. De Gheest in Paris and witnessed by her American lawyer, Mr. John B. Robinson 'Know all men by these presents: That, whereas the undersigned May Eunice Scullin widow of Charles de Gheest, deceased, a citizen of the United States of America, born at Montreal, Canada, on July 12th, 1864, holder of United States passport number 4.364, residing at No: 37 rue Leperouse at Paris, XVIth arrondissement (France), is indebted to Mr. Alexandre Schaposchnikoff, residing at Paris, 9 Rue d'Artois, eighth arrondissement, in the sum of twenty eight thousand dollars ($28,000.00), lawful money of the United States of America, for monies advanced by him to her prior to the date of these presents, and

'Whereas, said May Eunice Scullin De Gheest has been unable to reimburse said sum owing to the blocking of funds belonging to her, situated in the United States of America, in the hands of the Mercantile and Commerce Bank and Trust Company, of Saint Louis, Missouri,

'Now therefore, In consideration of the premises and with a view to repayment of said sum advanced by the said Alexandre Schaposchnikoff, the said May Eunice Scullin De Gheest, hereby does assign, transfer and set over unto said Alexandre Schaposchnikoff, the sum of twenty eight thousand dollars ($28,000.00) of all funds, securities, and credits belonging to her in the possession of the Mercantile and Commerce Bank and Trust Company, of Saint Louis, income and/or principal; said sum to be paid or transferred to the account of said Alexandre Schaposchnikoff, as soon as possible, and should said sum not be so paid or transferred prior to January 1, 1946, the undersigned does assign transfer and set over to said Alexandre Schaposchnikoff from said funds, securities and credits, a further sum equivalent in amount to interest at the rate of six per cent (6%) per annum upon said $28,000, (twenty eight thousand dollars), to run from January 1st 1946 to the date of such payment or transfer to the account of said Alexandre Schaposchnikoff, and she does hereby appoint said Alexandre Schaposchnikoff her irrevocable attorney in fact with power of substitution, to receive and receipt for said sum of twenty eight thousand dollars ($28,000) from said Mercantile and Commerce Bank and Trust Company of St. Louis.'

Even though the pleadings were informal, the notice of demand and the attached 'account' state a claim for money had and received, or more appropriately, for restitution. Restatement, Restitution, p. 6; Miners' Bank v. Burress, 164 Mo.App. 690, 147 S.W. 1110; Bank of Commerce v. Ruffin, 190 Mo.App. 124, 175 S.W. 303; In re Hukreda's Estate, Mo., 172 S.W.2d 824. The written instrument evidencing the debt is obviously an assignment but as was said in another action for money loaned, 'the payee may, unless the note has been taken as payment of the debt, at his election, either sue the maker on the note, in which event the note itself makes out a prima facie case for plaintiff, or waive the cause of action on the note and sue the maker in indebitatus assumpsit for money loaned, producing the note as evidence of the loan agreement and for cancellation.' Reifeiss v. Barnes, Mo.App., 192 S.W.2d 427, 430. We note this in passing for the reason that in some of the presidential 'freezing' order cases (56 Har.L.R. 30: 'Exchange Control, Freezing Orders And The Conflict Of Laws' Freutel),--the cases of refugees who have purchased tickets from steamship companies with blocked marks entitling them to passage from some European port to New York, and have had their passage cancelled because of war,--some of the courts have emphasized, against the defense that the claimant is entitled only to blocked marks, that the action is in fact one for restitution rather than ohe for damages and, therefore, the place of performance of the contract, Germany, was no obstacle since the courts were not enforcing the terms of the contract. Rosenblueth v. N. V. N. A. S. M., Sup., 27 N.Y.S.2d 922; Bleiweiss v. Cunard White Star Ltd., Sup., 34 N.Y.S.2d 172. The courts have also found some way of avoiding the extraterritorial effect of the Soviet and German anti-racial monetary decrees. 88 Pa.L.R. 983. The assignment involved here recites that 'Whereas, said May Eunice Scullin De Gheest has been unable to reimburse said sum owing to the blocking of funds belonging to her, situated in the United States of America, * * *.'

The executor seizes upon the fact that this is an action for money had and received and not one to enforce performance of an obligation undertaken to be made in Missouri and insists that the entire transaction was consummated in France and therefore the essential validity of the claim is to be determined and governed by the law of France. It is in this connection that the executor contends that the court erred in excluding evidence that the transaction on which the claim was founded was illegal under the law of France. The executor offered to prove by a qualified expert, an American citizen and lawyer with distinguished associates in New York but formerly a French educated lawyer, that he had made a particular study of currency and monetary exchange controls, of French statutes, decrees and court decisions enacted and in force 'immediately prior to or early during the last was as a means of protecting French economy in times of emergency, that they continued to be in effect during the war and continued to be administered by French officials,' and that in his opinion the transaction between Mrs. De Gheest and Mr. Schaposchnikoff was illegal and void at the time under the law of France. We lay to one side any questions as to the sufficiency and adequacy of the offer of proof and accept the appeal upon the executor's assertion that so much of the transaction as in fact occurred in France was illegal under French law, but before determining the executor's claim that the entire transaction did in fact occur in France and that the essential validity of the transaction is governed by the law of France rather than the law of Missouri it is necessary to consider and examine the circumstances in which the money was loaned and the assignment executed.

The instrument was drafted in the Paris office of Coudert Brothers by Mr. John B. Robinson, an American lawyer who had practiced law in Paris for forty-eight years. He was casually acquainted with Mrs. De Gheest. He had prepared a will for her in 1942. He obtained in information set forth in the instrument from Mrs. De Gheest's son, Henry, who, incidentally, predeceased her. The reason he advised this transaction was that 1942, 1943 and 1944 were the years of the German occupation of France and there was a German decree and a French decree prohibiting exchange operations in foreign currency. Neither Mr. Robinson nor Mrs. De Gheest were interned because they were both past sixty-five, although a 'German administrator,' who seldom came in, was assigned to Mr. Robinson's office and monthly checked his receipts and disbursements. He was not a French lawyer and did not know whether the transaction was illegal, in the sense of being absolutely void, under French law. Mr. Robinson did not witness the exchange of money between Mrs. De Gheest and Mr. Schaposchnikoff but he said, 'I advised this transaction with a view to helping Mrs. De Gheest to obtain funds. She could receive no remittances from America, she was an old lady, (she was eighty-one when she died) and I understood from her son that she needed the money, and I saw no other way of getting it.' He said that at the time he drafted the instrument Mr. Schaposchnikoff surrendered to him a similar document, which he had not drafted, assigning $15,000 and that he destroyed it by tearing off the signatures. Of the instrument in general he said, 'This was an assignment of dollars in consideration of French francs, and for that reason I did not speak of French francs in the drafts I drew.' He explained to the parties that he had been unable to communicate with the United States for some time and that he did not know what laws or regulations had been passed in his own country which might affect the transaction. It was his opinion, however, that the transaction was 'in assignment of dollars out of property in America, enforceable under American law.' He said, 'I consider them (the assignments, the original and a duplicate) binding as between the parties.'

Mr. Schaposchnikoff's version of the transaction is contained in a written statement which the parties have stipulated as a part of the record. He...