In re Estate of Bomino

• Decision Date: 31 October 1884
• Citation: 83 Mo. 433
• Parties: IN THE MATTER OF THE ESTATE OF PETER BOMINO, DECEASED; MARIA L. HAIGH et al., Petitioners, Appellants.
• Court: Missouri Supreme Court

83 Mo. 433

IN THE MATTER OF THE ESTATE OF PETER BOMINO, DECEASED; MARIA L. HAIGH et al., Petitioners, Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

REVERSED.

Alex. J. P. Garesche for appellants.

(1) Conceding there has been an escheat of the personalty, still the heirs are not barred by limitation because (a) some of them are married women, and (b) included in the payment to the state is the sum of $800 net, rents collected by the administrator after Bomino's death and following the land belonged to the heirs; (c) the statute required a special notice to be given if no known heirs existed, required the court to make the order of payment only after a year, in meantime directing the administrator to loan out the funds for a fixed term not exceeding one year. (2) But the law of escheats is not the one to be applied here. It refers to estates whereof there are no legal heirs, for this designation includes no heirs capable of inheriting. Catham v. State, 2 Head (Tenn.) 553. Escheats are seignoral, not prerogative rights of the crown. There is no escheat of movables. They pass to the crown upon failure of heirs as one of its prerogative rights. Com. v. Blanton, 2 B. Mon. 397. The right to maintain this proceeding is under the administration law. (3) The heirs by the intestate death of Peter Bomino had vested rights in the estate and these rights could be divested only by due process of law. State v. Stein, 2 Mo. 56; State v. Tedford, 3 Mo. 75; Mo. Code, 1855, p. 83. There never having been any notice given to these heirs, there has been no due process of law. By the statute two notices were required to be given to them, one in pursuance of sec. 21, Code of 1845, Administration, art. 2, and again one of final distribution; neither of these was given. Conceding that the probate court by its order treated the estate as an escheat, then for it to make the order binding, two jurisdictional facts must concur: That there were no heirs; next that they were notified. For I am willing to accept that the notice by the administrator to unknown heirs required by the statute might be construed to be due process of law--a constructive service to bring them into court. Hence it must appear from the record that there were no heirs; or if heirs but unknown, that they were notified must appear on the face of the record. Nothing is to be presumed in favor of such a record. It is that of a court of limited jurisdiction, and it is if valid the absolute confiscation of the rights of the Bomino heirs. State v. Teulon, 41 Texas 252; Fairfield v. Gillifer, 49 Maine 360; Peake v. Redd, 14 Mo. 79; Valle v. Fleming, 19 Mo. 460; Schell v. Leland, 45 Mo. 293; Gibson v. Vaughan, 61 Mo. 420; McCoy v. Zane, 65 Mo. 15; Colville v. Judy, 73 Mo. 654.

D. H. McIntyre, Attorney General, for the state.

The action of the probate court of St. Louis county in ordering the public administrator to pay the balance into the state treasury was correct. Nothing else could be done; §§ 1, 2, 3 and 4, chap. 61, R. S., 1855, p. 716. (Secs. 5564, 5565, 5566 and 5567, R. S., 1879, are the same except that 3 years in sec. 2 is changed to 2 years in sec. 5565.) The probate court committed no error in rendering judgment against the petitioner. The court had no jurisdiction; sec. 5586, R. S. 1879, same as § 23 chap. 61, R. S., 1855, p. 720. Nor could the circuit court have afforded relief as almost twenty years had elapsed since the death of the intestate. Sec. 5586, supra. It, therefore, appears that plaintiff's claim was barred by the statute and that she is without relief. The rents which were paid into the state treasury were repaid by order of court.

PHILIPS, C.

This is a proceeding instituted in the probate court of St. Louis county by the heirs and distributees of the estate of Peter Bomino, deceased, for an order on the state treasurer to pay to claimants as the heirs of said decedent, the balance found by said court to have been due on final settlement and paid into the state treasury. Due notice was given to the circuit or county attorney who appeared and defended for the state. The probate court dismissed the proceeding on the ground that it did not have jurisdiction over the subject matter.

The case, after passing on appeal through the circuit court and court of appeals to this court, is submitted on the following agreed statement of facts: “Peter Bomino, for many years before his death a resident of the city of St. Louis, lived in seclusion, apparently without a friend or relative. In the summer of 1854 he died unmarried and intestate. On the 31st of July, A. D. 1854, Peter B. Garesche, public administrator of the then county, including the city of St. Louis, took charge of his estate. In making the inventory a crock of gold was unearthed in the cellar, and this led to a further search when other crocks were found similarly filled. He left, also, the residence in which he lived. The public administrator aforesaid took charge of the realty and personalty of the said estate. And on the 22nd of September, A. D. 1860, made final settlement showing a balance due to the estate, applicable to distribution, of nine thousand and one and 8-100 dollars, and which by an order of the probate court he was ordered to pay into the state treasury, which order was of the same date as said final settlement and was promptly complied with. Included in said balance was about eight hundred and fifty dollars net rents realized from the residence of deceased: that is after deduction made for taxes, insurance, repairs and commissions.

The order expresses that it was because there were no known heirs. The settlements of the administrator show that he gave the statutory notices of his taking out letters and for final settlement. But he is long since dead and no notice is filed or charge made in his settlements of notice to the unknown heirs to present themselves, or of any distribution to be made unless the usual notice of final settlement subserve this purpose. Upon such final settlement Edward T. Farish was appointed to take charge of the realty and did so, paying from time to time the net accumulations of rent to the treasurer of the state of Missouri under the order of the probate court. No inquisition was ever had of escheat, and contemporaneously with the present proceeding appellants applied to and obtained of said probate court an order directing the payment to them of the rents thus accumulated since final settlement, and the court granted an order upon the treasurer for those there deposited, and upon Mr. Farish for those not paid over, and the parties promptly complied with the order and made the payment. Later, the appellants, a portion of them as plaintiffs, against the other portion as defendants, brought suit in the circuit court of St. Louis, June term, 1877, for the partition of the realty. Returns No. 43,255 made said Edward T. Farish and Lewis B. Beach, the latter as then circuit attorney of the 8th judicial circuit, as defendants. Judgment of partition was rendered in favor of the appellants, the property ordered to be sold, and the proceeds distributed among the appellants as the rightful heirs of said Bomino. So, too, said Farish and said Beach were notified of the application for payment of rents. And have been also of the institution of the present proceedings.

This is an application, originally made to the probate court, for an order on the treasurer of the state of Missouri to pay to appellants as the lawful heirs of said Bomino the balance due on final settlement and paid to the treasurer of the state. At the time it was made some of these heirs were and still remain married women. The application was refused by the probate court, and appellants appealed to the circuit court. There the appeal was upon hearing had overruled, and judgment of probate court sustained. Within four days the appellants moved for a new trial which was overruled, exception taken, bill of exceptions filed and the cause appealed to the court of appeals. There, pro forma, an affirmance was taken of the judgment of the circuit court and the cause was then appealed to this court.

Originally the application was made by Maria L. Haigh alone, but subsequently it appeared that other relatives, heirs, survived, alike but not equally entitled; they were all by consent made parties to this proceeding, so that the heirship is admitted. It is also admitted that, at the trial, it was shown that Maria L. Haigh came to the city of St. Louis, a day or two after the order on final settlement and the payment to the state treasurer, applied as heir to be recognized, but that said Bauduy Garesche, though a lawyer, yet ignorantly told her that it was too late. That she relying upon this desisted from any further attempt till these proceedings were had. And it is further admitted that none of the appellants are or have been residents of the state of Missouri.”

I. The principal question involved, therefore, is as to the jurisdiction of the probate court to entertain the application. This turns, of course, upon the statutes applicable to such proceedings. The petitioners contend that the provisions of the administration law apply, while the state, through the circuit attorney, contends that the law of escheats must govern. The administration proceeding in question began under the statute of 1845 and ended under that of 1855. But as both statutes are practically the same, the parties have cited the provisions of the latter statute, and we will cite them accordingly. The provisions relied on by appellants are as follows: “If, upon final settlement, it appear that any legatee or distributee is non-resident, or, from any other cause, is not in a situation to receive his share, and give a discharge therefor, or does not appear by himself or agent to receive the same, the county court shall order the executor or administrator to lend out the money, on good...