In re Thompson's Estate

• Decision Date: 24 September 1936
• Citation: 97 S.W.2d 93,339 Mo. 410
• Parties: In the Matter of the Estate of John W. Thompson, Sara E Thompson and Marcella Thompson Berkley, Administratrices, v. W. G. Coyle & Company, Inc., Appellant
• Court: Missouri Supreme Court

97 S.W.2d 93

339 Mo. 410

In the Matter of the Estate of John W. Thompson, Sara E Thompson and Marcella Thompson Berkley, Administratrices, v. W. G. Coyle & Company, Inc., Appellant

Supreme Court of Missouri

September 24, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Fred J Hoffmeister, Judge.

Affirmed.

Douglas W. Robert for appellant;

Single & Tyler and Dart & Dart of counsel.

(1) The circuit court decided this cause upon one ground alone, i e., that the administratrices could not be sued outside the State of Missouri. In this the court erred. (a) The administratrices could and did agree to permit the establishment of the demand of W. G. Coyle & Company, Inc., in a foreign court, which is permitted by the laws of Missouri and the common law. Sec. 189, R. S. 1929; State ex rel. Dean v. Daues, 321 Mo. 1126; Stephens v. Bernays, 119 Mo. 143; Cooper v. Newell, 173 U.S. 555; Salina v. Jones. 60 F.2d 1049; Falke v. Terry, 32 Colo. 85; McNamara v. Dwyer, 7 Paige Ch. 239; Tunstall v. Pollard, 11 Leigh, 1. (b) The general rule of law is that persons, sui juris, may confer jurisdiction over their persons by consent or waiver. State ex rel. Devan v. Williams, 316 Mo. 365; State ex rel. Newell v. Cave, 272 Mo. 653, 246 U.S. 650; State ex rel. Connors v. Shelton, 238 Mo. 281; Barlow v. Steel, 65 Mo. 611; Brown v. Woody, 64 Mo. 547; Baker v. Stonebraker, 34 Mo. 172; McClure v. Iron Co., 90 Mo.App. 567. (c) This rule has been applied to executors and administrators. Madison County Bank v. Suman's Admr., 79 Mo. 527; Farrell's Admr. v. Brennan's Admrx., 25 Mo. 88; Lackner v. McKechney, 252 F. 403; Palms' Admr. v. Howard, 102 S.W. 267; Rogers v. Gould, 210 A.D. 15; Newark Savings Inst. v. Jones' Extrs., 35 N.J.Eq. 407; Netting v. Strickland's Admr., 18 Ohio Cir. Ct. 136; Davis v. Connelley's Extrs., 4 B. Mon. 136; National Bank v. Lewis, 12 Utah 84; 1 Woerner Admrs. (3 Ed.), sec. 164. (d) The administratrices intermeddled with the assets in Louisiana. Foreign administrators, who go into another state and intermeddle with the assets there subject themselves to that jurisdiction. Fugate v. Moore, 86 Va. 1045; Keiningham v. Keiningham, 71 S.W. 497; 11 R. C. L., Executors & Admrs., sec. 556, p. 451. (e) The administratrices sent large sums of money of the estate into Louisiana and conducted a business there. Administrators who take or send assets into a foreign state subject themselves to that jurisdiction. McCabe v. Lewis, 76 Mo. 296; Spraddling v. Pipkin, 15 Mo. 118; Falke v. Terry, 32 Colo. 85; Atchison's Heirs v. Lindsay, 6 B. Mon. 86; Beeler v. Dunn, 3 Head, 87; Laughlin v. McManus, 180 Pa. St. 177; Lake v. Hardee, 57 Ga. 459; Tunstall v. Pollard's Admr., 11 Leigh, 1; Fugate v. Moore, 86 Va. 1045; McNamara v. Dwyer, 7 Paige, 239; Patton v. Overton, 27 Tenn. 192; 1 Woerner Admr. (3 Ed.), sec. 164, p. 571; 11 R. C. L. Executors, sec. 556, p. 452. (2) The administratrices knew of the pendency of the admiralty suit. They filed no plea to the jurisdiction. They filed no motion to quash the return; they filed no special demurrer; they went to trial; they filed a motion for a rehearing without raising the jurisdictional question. Under these circumstances they waived the question of service and jurisdiction. Wicecarver v. Mercantile Town Mut. Ins. Co., 137 Mo.App. 247; Williams v. Browning, 45 Mo. 475; Floreth v. McReynolds, 205 Mo.App. 143; Laing v. Rigney, 160 U.S. 531. (3) Under these circumstances they are estopped to deny they were properly in the Federal Court. Bass v. Am. Products Corp., 124 S.C. 346, 117 S.E. 594; Mutual Life Ins. Co. v. Spratley, 172 U.S. 602; Italian-Swiss Agri. Colony v. Pease, 194 Ill. 98; Combs v. Oil Co., 58 Ill.App. 123; Capen v. Pacific Ins. Co., 25 N. J. Law 67; 2 C. J., p. 461, sec. 70. (a) Louisiana statutes and decisions cannot control Federal procedure in Admiralty cases. Procedure Act, Title 28, Sec. 723, U.S. Code; Conformity Act, Title 28, Sec. 724, U.S. Code; United States v. Breitling, 20 How. 252; The J. E. Rumbell, 148 U.S. 1; Coffey v. United States, 117 U.S. 233; Meyers v. Block, 120 U.S. 206; Dravo v. Fabel, 132 U.S. 487; Scott v. Armstrong, 146 U.S. 499. (4) The court erred in refusing to give full faith and credit to the judicial proceedings in the United States District Court for the Eastern District of Louisiana. Art. IV, Sec. 1, U.S. Const.; Hancock Bank v. Farnum, 176 U.S. 640; Knights of Pythias v. Meyer, 265 U.S. 30. (5) The probate court had no jurisdiction to close the estate of John W. Thompson while the admiralty suit was pending. State ex rel. Dean v. Daues, 321 Mo. 1126; Orr v. St. Louis Union Trust Co., 291 Mo. 383; State ex rel. Knisely v. Holtcamp, 266 Mo. 347; Stephens v. Bernays, 119 Mo. 143; Smiley v. Cockrell, 92 Mo. 105; Green v. Strother, 201 Mo.App. 418; Gewe v. Hanszen, 85 Mo.App. 136; The Roanoke, 189 U.S. 185; Security Bank & Tr. Co. v. Black River Bank, 187 U.S. 211; Secs. 185, 189, R. S. 1929. (6) The administratrices, their attorney and agent, were guilty of fraud in closing the estate of John W. Thompson in St. Louis while the admiralty suit was pending. Haight v. Stuart, 31 S.W.2d 241; State ex rel. Met. Life Ins. Co. v. Allen, 278 S.W. 877; State ex rel. Knisely v. Holtcamp, 266 Mo. 347; Smiley v. Cockrell, 92 Mo. 105.

Donnell & McDonald for respondents.

(1) The probate court was without jurisdiction, after the term at which were entered the orders of December 27, 1927, approving final settlement, ordering distribution and granting discharge, to set aside, on the ground of fraud, said orders. Had fraud been committed (which, as demonstrated in respondents' argument, is not a fact) said orders could not have been set aside, after the term at which granted except by a court having equity jurisdiction. The probate court is not such a court. Smith v. Hauger, 150 Mo. 437, 51 S.W. 1052, 24 C. J. 1035; Krashin v. Grizzard, 31 S.W.2d 984, 326 Mo. 606; Rawlings v. Rawlings, 58 S.W.2d 735, 332 Mo. 503; State ex rel. v. Bird, 253 Mo. 569, 162 S.W. 119; Orr v. St. L. Union Trust Co., 291 Mo. 383, 236 S.W. 642. (a) Inasmuch as the probate court has no equity jurisdiction, the circuit court cannot, on an appeal from the probate court, exercise equity jurisdiction. State ex rel. v. Bird, 253 Mo. 569, 162 S.W. 119; Brown v. Glover 158 Mo.App. 396, 138 S.W. 105; In re Estate of Strom, 213 Mo. 1, 111 S.W. 534. (2) The probate court possessed jurisdiction to make the orders of December 27, 1927 (by which the administration of the estate in Missouri was closed), unless (a) there was or were on that date, legally pending and undisposed of, a demand or demands against the estate of John W. Thompson and (b) there were available assets for the satisfaction of such demand or demands. State ex rel. Knisely v. Holtcamp, 266 Mo. 347, 181 S.W. 1007. (3) In order that the claim shall have been legally exhibited, the exhibition must have occurred within one year after May 7, 1926, to-wit, the date on which letters of administration were granted, and, if not exhibited within said one year, the demand is "forever barred." Sec. 183, R. S. 1929; Sec. 182, R. S. 1919; Cowan v. Mueller, 176 Mo. 192; Beekman v. Richardson, 150 Mo. 430; and can never be revived; North v. Walker, 66 Mo. 453; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Woerner on American Law of Administration (3 Ed.), sec. 402, p. 1326; 24 C. J. 370; consequently only such facts as existed on or prior to May 6, 1927, will determine whether or not a legal exhibition of the demand had been made before the orders of December 27, 1927, were made. (a) The only methods by which such exhibition could have been made are: Method 1. That prescribed in Sections 186 and 195, Revised Statutes 1929. Method 2. That prescribed in Section 185, Revised Statutes 1929, said Method 2 being service on the administratrices of original process in an action commenced against the administratrices after the death of J. W. Thompson. Coyle does not claim that Method 1 was followed. Method 2 was not followed. (b) Service of process, even if such service be made within a jurisdiction in which the administratrices may be legally served, is not valid unless such service be upon the administratrices personally. There was no service on the administratrices personally. Bradley v. Welch, 100 Mo. 258, 12 S.W. 911; Sec. 728, R. S. 1929; Masterson v. LaClaire, 4 Minn. 163; Black's Law Dictionary (2 Ed.), 949; 50 C. J. 445; Bowers on Process and Service (1927), sec. 253; Frost v. Atwood, 73 Mich. 67, 16 Am. St. Rep. 560; 21 R. C. L. 1269; Odessa Loan Assn. v. Dyer, 81 A. 469, 2 Boyce 457; 50 C. J., pp. 468, 494; 32 Cyc., pp. 466, 448; Palmer v. Bank, 281 Mo. 72; C. B. & Q. Railroad Co. v. Olin, 266 S.W. 130, 218 Mo.App. 578; Neff v. Indianapolis, 176 N.E. 232; Haj v. Am. Bottle Co., 261 Ill. 362; First Natl. Bank v. Farmers' Bank, 219 Ill.App. 624. (4) A judgment of a court, State or Federal, in Louisiana against the Missouri administratrices, even had they expressly consented to be served in Louisiana with process, could not by any suit or other proceeding based upon such judgment be enforced against any assets of the estate in Missouri, consequently the claim asserted by Coyle in the admiralty suit in the Federal Court in Louisiana, in which suit the Missouri administratrices were named respondents, was at no time a demand legally pending against the estate which was being administered in the Probate Court in Missouri. (a) Source of power of administrator. 11 R. C. L. 130; Wilson v. Wilson, 54 Mo. 213; Dixon v. Ramsay, 3 Cranch. 317; Vroom v. Van Horne, 10 Paige, 549; Hartnett v. Wandell, 60 N.Y. 346, 19 Am. Rep. 196. (b) Administrator's power does not extend beyond boundary of State in which he derives his appointment. Fenwick v. Sears, 1 Cranch. 259; Story...