McCabe v. Lewis

• Decision Date: 31 October 1882
• Citation: 76 Mo. 296
• Parties: MCCABE, Administrator of Long, Plaintiff in Error, v. LEWIS, Public Administrator.
• Court: Missouri Supreme Court

76 Mo. 296

MCCABE, Administrator of Long, Plaintiff in Error,

v.LEWIS, Public Administrator.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

REVERSED.

E. T. Farish for plaintiff in error.

The estate was not of that character mentioned or contemplated by the law, which the law authorizes the public administrator to take charge of. Wag. Stat., 122, § 8. It is but a chose in action, a proceeding in equity by which it is sought to recover a judgment against the estate of Catharine O. Long, for conversion of property alleged to have belonged to Maynard. The law never meant to apply to a case of this kind. It has reference to goods, effects, movables, notes, securities or property of a like character, of strangers or unknown persons without heirs, and which is exposed to loss or damage. Further, if the probate court had ordered the public administrator to take charge of the estate, it would have been improvidently granted, for the contingency referred to in the sixth subdivision of section eight, did not exist. “A court has jurisdiction to grant administration on the estate of a person who died domiciled in another state only when there is personal estate to administer.” Miller v. Jones, 26 Ala. 247; Broughton v. Bradley, 34 Ala. 694; Railroad Co. v. Swayne, 26 Ind. 477; Thumb v. Gresham, 2 Metc. (Ky.) 306; Grimes v. Talbert, 14 Md. 169; Crosby v. leavitt, 4 Allen 410; Langworthy v. Baker, 23 Ill. 492; Ins. Co. v. Lewis, 97 U. S. 682; Goodrich v. Pendleton, 4 John. 549. The public administrator is not the administrator de bonis non contemplated by our administration act. Wag. Stat., §§ 46, 47, 48, p. 77. This law clearly has reference to a case when both the first and second administrations are had in and before the same jurisdiction. And as the claim of the public administrator in charge of the estate of Maynard is based upon the idea of a conversion of assets of decedent by the first administratrix, and that he, as successor or administrator de bonis non, is entitled to sue for and recover such assets; yet, as the provisions of law above referred to do not embrace such a case, it results that we have no statute law on the subject; and if this be so, the public administrator cannot maintain this action, for it is well settled law that without the aid of special legislative grant of power the administrator de bonis non cannot sue the representatives of a former administrator, either at law or in equity for assets wasted or converted by the first executor or administrator, but such suit may be brought directly by creditors or distributees. Hagthorp v. Hook, 1 Gill & J. 270; Coleman v. McMurdo, 5 Rand. 51.W. L. Scott for defendant in error.

The probate court had no jurisdiction to entertain this motion, because no statutory grounds for the same were made to appear; and no authority exists to entertain an application to remove an administrator at the suit of a debtor of the estate, or a stranger to the same. Wag. Stat., 122, § 9; p. 75, § 35; p. 121, §§ 2, 5; p. 806, § 32; p. 123, § 14. The public administrator had authority under sections 8 and 16, article 9, chapter 2, Wagner's Statutes, to take charge of Maynard's estate. The estate consisted of the liability of Mrs. Long for the personal property which had belonged to Maynard, brought by her into this State, and converted to her own use. If this personalty had been here at her death, in kind, it would not be contended that it did not constitute the estate of Maynard in Missouri to be administered. The conversion of it to her own use did not have the effect of destroying Maynard's estate in Missouri; it merely changed its character from property in kind, to a claim for its value. The personal liability of this individual--Catharine Long--was the estate of Maynard, susceptible of administration in Missouri. The situs of the assets is where the debtor resides. In re Partnership of Ames, 52 Mo. 290; Wag. Stat., p. 84, § 2; p. 87, § 29.

This claim then coming within the definition of “other estate,” as used in this section, the remaining question is: Was it left “in a situation exposed to loss or damage, and no other person administers on the same?” No one had administered on Maynard's estate, although nearly two years had elapsed since Catharine Long had died, and administration of her estate had been entered upon; and about four years had elapsed since she brought the personalty into Missouri and converted it to her own use. The case was clearly one where “no other person administers on the same.” It is clear also that the estate “was in a situation exposed to loss, within the meaning of the statute. Nearly two years had elapsed since Bushell had qualified as executor of Catharine Long's estate; and if the claim of Maynard's estate against it was not “legally exhibited” within two years, it would be “forever barred.” Wag. Stat., p. 101, sub. 2, § 1. Inaction for a few weeks longer would have involved the loss of the entire estate in Missouri.

The public administrator legally took charge also by virtue of sub-section 2 of section 8--authorizing him to take charge “when persons die intestate without any known heirs.” It is admitted that he died without known heirs, unless Catharine Long was his heir; and the testimony shows that she was not his heir. The most that can be claimed is that she was his widow.

The 5th sub-section of section 8 also authorized the public administrator to take charge. The estate, as already shown, was “liable to be injured, wasted or lost;” and the intestate “left no widow or heir in this State;” that is, when he took charge, there was no widow or heir in this State.

It is claimed for appellant that the public administrator is not the administrator de bonis non, contemplated by our administration act. That question is not presented here. The administration on Maynard's estate is the first, or original administration; it stands disconnected from the administration in Louisiana. When Catharine Long brought the personalty into Missouri, it became assets in this State; and her liability was in her individual capacity.

T. Z. Blakeman also for defendant in error.

The public administrator had ample authority to take charge of the estate of Maynard, notwithstanding the facts that Maynard resided and died in another state, and that the property sought to be administered on was not brought into Missouri until after his death. Wag. Stat., 122, §§ 8, 13; Miller v. Jones, 26 Ala. 247; McDonald v. Walton, 2 Mo. 48. There was property of Maynard's unadministered, brought into this State, and it made no difference when administration was begun in this State, whether that identical property remained or had been converted and existed in form of credits. Stearns v. Wright, 51 N. H. 600; Callahan v. Griswold, 9 Mo. 782.

HENRY, J.

On the 24th day of March, 1873, Henry Gambs, then public administrator of the county of St. Louis, gave notice in writing to the probate court of said county, that he had taken charge of the estate of Wm. J. Maynard, deceased, for the purpose of administering thereon. On the 1st day of May, 1873, he filed an inventory showing that the only assets of said estate was a suit pending in the circuit court of said county, to recover of the executor of Catharine O. Long, deceased, the money and assets of said Maynard, who died in the city of New Orleans, state of Louisiana, in December, 1867. On the 5th day of June, 1871, Isaac Bushell qualified as executor of the last will of said Catharine O. Long, who died in April, 1871, and on the 10th day of March, 1874, he filed a motion in the probate court of St. Louis county to set aside the appointment and revoke the letters of administration granted to said public administrator on Henry Maynard's estate, on the following grounds: 1st, That Maynard's estate had been fully administered. 2nd, Because there were no assets of said estate in said county. 3rd, Because the only purpose of the pretended administration was the prosecuting of vexatious proceedings against the estate of Catharine Long. 4th, Because there are no creditors and no known heirs of said Maynard, except Catharine Long. 5th, Because said administration was useless, vexatious and illegal; the letters improvidently granted; without and contrary to law; and such administration can only serve to sanction vexatious and champertous litigation.

On the hearing, it appeared that a suit was pending in the circuit court against Bushell, as executor of Catharine O. Long, on behalf of said public administrator, to recover assets of the estate of Maynard alleged to have been converted to her own use by said testatrix; that a claim had been filed in the probate court against the estate of Maynard by a creditor of said estate, which originated after the death of Maynard, and after the administration of his estate was closed in the state of Louisiana; that pending the motion in the probate court, Gambs resigned his office and Lewis succeeded him, and the suit in the circuit court and the motion in the probate court were revived, the one in his name and the other against him; that McCabe, on resignation of Bushell, was appointed administrator with the will annexed of Mrs. Long; that Maynard died intestate in the state of Louisiana, of which he was a resident, and Catharine O. Long, who was reputed to be his wife, administered on his estate, and that the administration in that state had been settled and closed; that the property which is the subject of the suit instituted by the public administrator against the executor of C. O. Long, was never in the State until brought here by C. O. Long, who, after she came to Missouri, intermarried with one Long, and it is not claimed that there is or has ever been any other property of said Maynard's estate in the county of St. Louis.

The motion in the probate court was overruled, and the judgment of that court was successively affirmed by the circuit court and the court of...