Meyer v. Nischwitz
| Decision Date | 31 December 1917 |
| Parties | MARTIN T. MEYER, Administrator of the Estate of JOHN H. ASAHL, deceased, Respondent, v. E. C. NISCHWITZ, Executor of the Last Will of ANNA MARGARET ASAHL, deceased, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Moniteau Circuit Court.--Hon. Jack G. Slate, Judge.
AFFIRMED.
Judgment affirmed.
Embry & Embry and S. C. Gill for appellant.
L. F Wood for respondent.
In the month of December, 1906, John H. Asahl died testate in California, Missouri, leaving his widow, Anna Margaret Asahl his sole devisee and legatee. However he had an adopted daughter who was not mentioned in the will and this court in the case of Buck v. Meyer, 195 Mo.App. 287, 190 S.W. 997, on December 18, 1916, declared said daughter to be a pretermitted heir. The effect of this decision was that said daughter was entitled to one-half of the personal estate regardless of the will. There was no administration on the estate of John H. Asahl at his death, but the widow took charge of the property, both real and personal, and treated the same as her own. In the month of April, 1911, the widow died leaving a will appointing E. C. Nischwitz, appellant herein, as executor of her estate. The latter qualified and took charge of her estate as executor.
On April 27, 1911, after the death of Anna Margaret Asahl, Martin T. Meyer, the plaintiff herein, was appointed administrator of the estate of John H. Asahl, deceased. On March 29, 1917, plaintiff brought this suit and in his petition alleged that at the time of the death of John H. Asahl the said Anna Margaret Asahl took possession of the entire estate of the said John H. Asahl, deceased, and intermingled the same with her own property; that upon the death of the said Anna Margaret Asahl the defendant as her executor took possession of said property of John H. Asahl, deceased, intermingled with that of the individual property of the said Anna Margaret Asahl, deceased; that the mingled property consisted of notes and various certificates of deposit in the California State Bank, aggregating the sum of seventy-nine hundred, forty-four and 20/100 ($ 7944.20) dollars; and prayed for an accounting of the property belonging to the said John H. Asahl, deceased, together with accumulations thereof and interest thereon. The answer pleaded as a bar to the action that the probate court had exclusive jurisdiction of the controversy; that there was a similar suit pending undisposed of between the parties in the probate court; that the matter had been adjudicated in a case arising in the probate court of Moniteau County, Missouri, appealed to the circuit court of said county and again appealed to the Kansas City Court of Appeals (Meyer v. Nischwitz, 177 S.W. 794), and, in addition, pleaded the Statute of Limitations. On trial before the court plaintiff recovered and defendant has appealed.
Defendant's first point is that the probate court of Moniteau county has exclusive original jurisdiction to hear and determine this cause in that a full remedy is given plaintiff through the processes of the probate court under sections 70-71-72-73, and 74, Revised Statutes 1909. In the case of Hook v. Dyer, 47 Mo. 214, the supreme court had under consideration a case very similar to this one, and under the facts in that case the court held that the statute referred to by defendant in this case did not provide a proper method of investigating the subject, in that the wife in that case had so mingled the property of her deceased's husband with that of her own that it could not be easily separated, and that the statute under consideration did not furnish the best opportunity for investigating so complicated a matter. Claims of this nature frequently involve the most difficult, intricate and abstruse questions and require all the powers and machinery of a court of equity to adjust and settle upon an equitable basis. The probate court would have no jurisdiction to inquire into such controversies. [See Brewing Co. v. Steckman, 180 Mo.App. 320, 168 S.W. 226.]
In the case at bar the wife, the widow of the deceased, had taken possession of the property of her husband, without the aid of administration, and for nearly five years mingling the same with her own. Such intermingling had been continued by her executor for six years more. The commingling had thus been going on for nearly eleven years by the widow and her administrator, changing the property so commingled into various other forms of notes and certificates of deposit than those left at the death of John H. Asahl that at the time of the trial it became almost an impossibility to separate the property of John H. Asahl, deceased, from that of the widow. Following the decision of the supreme court in the case of Hook v. Dyer, supra, we believe the facts of this case make it one of such complication as to confer jurisdiction on the circuit court and that the probate court had no jurisdiction.
Defendant next contends that as John H. Asahl, deceased, left no debts, there was no necessity for the appointment of plaintiff as administrator of his estate, in that defendant says that Anna Margaret Asahl was the sole distributee of the estate of John H. Asahl, deceased, therefore it would be requiring the doing of a useless and unnecessary thing to force such a distributee to turn over the property to such an administrator; that a court of equity will not enforce the administrator's naked title in order that he may uselessly override the distributee's equitable title, and cites in support of these contentions the case of Richardson v. Cole, 160 Mo. 372, 61 S.W. 182, and similar cases.
In the case cited the public administrator, nearly twelve years after the death of the owner of the personal property attempted to take charge of the property that had been voluntarily and without...
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