In re Estate of Landgraf
| Decision Date | 05 May 1914 |
| Parties | IN RE ESTATE of JOSEPH LANDGRAF, Deceased; HARRY TROLL, Public Administrator, Respondent, v. PHILIP J. LANDGRAF, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Alexander R. Russell for appellant.
(1) The public administrator is a statutory officer, empowered to act under the circumstances specified in the statute creating his office. Sec. 302, R. S. 1909; Adams v. Larrimore, 51 Mo. 130; McCabe v. Lewis, 76 Mo. 296; Tittman v Edwards, 27 Mo.App. 492; State ex rel. v. Mast, 104 Mo.App. 348; Welsh v. Manwaring, 120 Wis. 377; Matter of Page, 107 N.Y. 266; Estate of Barton, 52 Cal. 538; Estate of Von Bunken, 120 Cal. 343. (2) The statute having expressed the conditions upon which the public administrator may act, the right to act under conditions not specified in the statute is excluded. 2 Sutherland on Stat Constr. (2 Ed.), secs. 491, 493; Beckett v. Selover, 7 Cal. 215, 230; Kolkmeyer v. City of Jefferson, 75 Mo.App. 683; State ex el. v. Woodson, 128 Mo. 514. (3) Under the facts in this case, there is no necessity for either public or private administration. Marshall v. Crow, 29 Ala. 278; Perryman v. Greer, 39 Ala. 133; Carter v. Owens, 41 Ala. 217; Fretwell v. McLemore, 52 Ala. 124; Jones v. Brevard, 59 Ala. 499; McGhee v. Alexander, 104 Ala. 116; Austin v. Snider, 17 Colo.App. 182; Waterhouse v. Churchill, 30 Colo. 415; Wood-house v. Phelps, 51 Conn. 521; Elliott v. Lewis, 3 Edw., ch. 40; Akin v. Akin, 78 Ga. 24; Gwinn v. Melvin, 9 Idaho, 202; Abbott v. People, 10 Ill.App. 62; Savage v. Luther, 165 Ill.App. 1; Lewis v. Lyons, 13 Ill. 117; Abbott v. People, 105 Ill. 588; Cotterell v. Coen, 246 Ill. 410; Roundtree v. Pursell, 11 Ind.App. 522; Salter v. Salter, 98 Ind. 522; Holtzman v. Hibben, 100 Ind. 338; Robertson v. Robertson, 120 Ind. 333; Douglass v. Albrecht, 130 Iowa 132; Succession of Graves, 50 La. Ann. 435; Wilkinson v. Robertson, 85 Md. 447; Buswell v. Newcomb, 183 Mass. 111; Needham v. Gillette, 39 Mich. 574; Sprague v. Moore, 130 Mich. 92; Granger v. Harriman, 89 Minn. 303; McCracken v. McCaslin, 50 Mo.App. 85; Todd v. Jones, 157 Mo.App. 416; Lich v. Lich, 158 Mo.App. 400; Richardson v. Cole, 160 Mo. 372; Johnston v. Johnston, 173 Mo. 97; Mahoney v. Nevins, 190 Mo. 360; Hooper v. Holmes, 11 N.J.Eq. 122; Dickenson v. Hoes, 84 N.Y.S. 152; In re Losee's Estate, 94 N.Y.S. 1082; Catlin v. Huestis, 11 Ohio Cir. Ct. 120; Walworth v. Abel, 52 Pa. 370; McLean's Extr. v. Wade, 53 Pa. 146; Angier v. Jones, 28 Tex. Civ. App. 402; Clifton v. Lilley, 12 Tex. 130; Duncan v. Veal, 49 Tex. 603; Babbitt v. Bowen, 32 Vt. 437; Murphy v. Murphy, 42 Wash. 142; Hinn v. Gersten, 122 Wis. 222; Wood v. Weimar. 104 U.S. 786, 26 L.Ed. 779.
Henderson, Marshall & Becker for respondent.
Joseph Landgraf, a citizen and resident of the county of St. Clair, State of Illinois, died intestate in said county and State on February 19, 1910, and his son, Philip J. Landgraf, the appellant herein, was appointed administrator of his estate by the probate court of said county, and duly administered thereupon. Among the assets of such estate were certain negotiable promissory notes executed by persons residing within the State of Missouri, payable in the city of St. Louis, and secured by deeds of trust upon real property in said city. These notes, together with the other assets in the hands of the administrator, were by the latter duly distributed to the lawful heirs of said deceased. Prior to the approval of the final settlement of said administrator by the probate court of said St. Clair county, Illinois, the respondent, public administrator of the city of St. Louis, filed a notice in the probate court of said city that he had taken charge of the estate of said Joseph Landgraf, deceased, in this State; and thereupon filed a petition in the probate court of said St. Clair county, Illinois, praying that such court make an order on appellant, as administrator, directing him to turn over the above-mentioned notes and deeds of trust to respondent, "ancillary administrator of the estate of said deceased acting in and for the State of Missouri." The said probate court of St. Clair county, Illinois, denied the prayer of said petition. Thereafter appellant, as "a son and one of the heirs at law of said Joseph Landgraf, deceased," and alleging his appointment as administrator in Illinois, etc., petitioned the probate court of the city of St. Louis, praying the court "to set aside and vacate the authority of the said Harry Troll, public administrator, to administer said estate or any part thereof or to in any way interfere with such administration" by the petitioner.
Thereafter the probate court of the city of St. Louis, in accordance with the prayer of the petition last above mentioned, revoked the authority of respondent to administer upon said estate in this State. The respondent thereupon prosecuted an appeal to the circuit court of the city of St. Louis. The latter court entered judgment affirming the said judgment of the probate court, but thereafter, upon respondent's motion, granted a new trial, upon the ground "that the judgment of the court was based upon an erroneous conception of the law."
The sole question involved pertains to the right of the public administrator to take charge of and administer upon the said debts owing to deceased in this State, evidenced by the aforesaid promissory notes. Respondent's position is, that the notes of the deceased are assets in the State of Missouri, and not in Illinois; that is to say, that these debts have their situs in the State of Missouri, wherein the payers reside; and that "this is the decisive question in this case." And in support of the proposition that they are Missouri assets respondent cites: Becraft v. Lewis, 41 Mo.App. 546; McCarty v. Hall, 13 Mo. 480; Partnership Estate of Henry Ames & Co., 52 Mo. 290; Richardson v. Busch, 198 Mo. 174, 95 S.W. 894; Jellenik v. Huron Copper Co., 177 U.S. 1, 44 L.Ed. 647, 20 S.Ct. 559.
But the only question with which we have to deal is whether respondent, as public administrator, was authorized by law to administer upon any property of the deceased within this State, or whether his act in the premises was merely an officious intermeddling. The solution of this question does not depend upon whether these debts technically have their situs within this State or otherwise, but is to be determined by looking alone to the statute conferring authority upon the public administrator to take charge of estates.
The pertinent provisions of the statute (Sec. 302, R. S. 1909) authorizing the public administrator to take the estates of deceased persons into his charge and custody are as follows:
"It shall be the duty of the public administrator to take into his charge and custody the estates of deceased persons, . . . in his county in the following cases: First, when a stranger dies intestate in the county without relations . . .; second, when persons die intestate without known heirs; third, when persons unknown die or are found dead in the county; fourth, when money, property, papers or other estate are left in a situation exposed to loss or damage, and no other person administers on the same; fifth, when any estate of any person who dies intestate therein, or elsewhere, is left in the county liable to be injured, wasted or lost, when said intestate does not leave a known husband, widow or heirs in this State . . .; ninth, where, from any other good cause, said court shall order him to take possession of any estate to prevent its being injured, wasted, purloined or lost." (Italics ours.)
Manifestly the enumeration of the conditions set forth in the statute authorizing the public administrator to take charge of estates of deceased persons is an implied exclusion of all others, in accordance with the maxim expressio unius est exclusio alterius. The statute makes explicit provision as to the power and duty of a public administrator in taking charge of estates, and his authority to act in the given instance must be found within the terms of the statute.
In McCabe v. Lewis, 76 Mo. 296, in treating of this statute, it is said: "The introductory clause of the section restricts the authority of the public administrator to administration of estates of deceased persons in his county, and gives authority only in the cases mentioned in the succeeding subdivisions, and is a key to the construction of each of them."
It is quite apparent that the authority of the public administrator must be derived from either the fourth or the fifth subdivision of the statute. Respondent contends that his authority is derived from the fourth, which authorizes the public administrator to act "when money, property papers or other estate are left in a situation exposed to loss or damage and no other person administers on the same." In other words, the right of the public administrator to take charge of the estate in Missouri is sought to be justified upon the ground that there are assets having a legal situs within this State, and that such assets "are left in a situation exposed to loss or damage." It is clear that, though there may be assets of a foreign testator or intestate, having a technical situs in this State, nevertheless the public administrator has no power or authority to administer thereupon, under the fourth subdivision, supra, unless the same are left in a situation exposed to loss or damage. The record before us utterly fails to show that the property here in question was in any manner exposed to loss or damage. On...
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