Lewis v. McCabe

• Decision Date: 31 October 1882
• Citation: 76 Mo. 307
• Parties: LEWIS, Public Adm'r, v. MCCABE, Adm'r of Long, Appellant.
• Court: Missouri Supreme Court

76 Mo. 307

LEWIS, Public Adm'r,

v.MCCABE, Adm'r of Long, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

REVERSED.

E. T. Farish for appellant.

W. L. Scott and T. Z. Blakeman for respondent.

HENRY, J.

In the case of McCabe, Administrator of Catharine O. Long, v. Lewis, Public Administrator in charge of the estate of Maynard, 76 Mo. 296, we held that Lewis was not legally in charge of said estate, from which it follows that as such administrator he cannot maintain an action. The judgment in his favor affirmed by the court of appeals is reversed.

HOUGH and RAY, JJ., concur; SHERWOOD, C. J., and NORTON, J. dissent.

SHERWOOD, C. J., DISSENTING.

A point which is common to the case of McCabe v. Lewis, and the present one, the right of the public administrator to take charge of the estate of Maynard, has been discussed in my dissenting opinion in the former case, and will not be further considered. And the same remark applies to the right of the public administrator to institute this suit, as that was incidentally passed upon in discussing the other point. Besides, the defendant in a suit brought by a public administrator cannot require him to show that the facts exist which authorize him to administer. Wetzell v. Waters, 18 Mo. 396. And, moreover, if the right of the public administrator to take charge of an estate be granted, it can but logically follow that he may take such steps and institute such proceedings of whatsoever name and nature as will make his administration effectual. So we pass to the controlling questions which this record presents. The circuit court upon preliminary hearing found the charges of the petition that Catharine O. Long, administratrix of the estate of Maynard, fraudulently concealed and converted to her own use personalty belonging to said estate, and subsequently brought such personalty with her to St. Louis. An interlocutory judgment to this effect was entered, and the matter placed in the hands of a referee to ascertain the amount and value of the assets, property and effects of the estate of Maynard thus fraudulently withheld from administration by said Catharine, and by her converted to her own use. The referee performed the duty imposed upon him by the circuit court, and his report was approved. We discover nothing in the finding of fact, of either court or referee, which are not supported by the testimony contained in this record. And it is altogether de hors this case...