Morton v. Hatch

• Decision Date: 31 October 1873
• Citation: 54 Mo. 408
• Parties: ANN E. MORTON, Plaintiff in Error, v. WILLIAM H. HATCH, Defendant in Error.
• Court: Missouri Supreme Court

54 Mo. 408

ANN E. MORTON, Plaintiff in Error,

v.WILLIAM H. HATCH, Defendant in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to Hannibal Court of Common Pleas.

John L. Robards & T. H. Bacon, for Plaintiff in Error.

I. The existence in a sister State of a foreign administration, its final settlement and the discharge and release of plaintiff in error as foreign executor, were facts sufficient to authorize her as sole devisee and legatee under the will to institute in Missouri an action to recover a debt due to the testator, whereof under his will she was sole and absolute owner. (Sto. Confl. Laws, 888, § 516 n. [3 Ed. 1846]; Trecothick vs. Austin, 4 Mason [C. C.], 16; Petersen vs. Chemical Bank, 32 N. Y. 21; Harper vs. Butler, 2 Pet. 240; Cow. & Hills, Notes p. 872.)

W. C. Foreman, for Defendant in Error.

I. The claim sued on and the money sought to be recovered, if it ever became absolutely the property of David T. Morton, forms assets of his estate in the State of Missouri; and an administration should be opened in this State for the collection of such assets and administering upon them according to law. (1 Wagn. Stat., 115, § 24; 10 Mo., 724; Kelly's Prob. Guide, 295.

VORIES, Judge, delivered the opinion of the court.

This was an action in the nature of an action for money had and received. The petition is as follows:

“Plaintiff for an amended petition herein says, that during the year 1860 David T. Morton was the executor of the last, will and testament of Mary B. Darr, dec'd, and duly qualified and acting as such in the county of Marion; that on the ninth day of July in said year, defendant was the attorney of said David T. Morton, executor as aforesaid, and that on said day, said David T. Morton as client of said defendant as aforesaid, deposited in the hands of defendant, as his attorney as aforesaid, the sum of one hundred and thirteen dollars and sixty cents, on the account of the estate of said Mary B. Darr, deceased, to liquidate demands against said estate as aforesaid. Plaintiff says that defendant accepted and received said money from said David T. Morton as aforesaid, being the property of said David T. Morton for said purpose, and in consideration of the premises, the defendant agreed and undertook with said David T. Morton to apply said money to the payment of demands against said estate, of Mary B. Darr, deceased, said undertaking being in writing and filed with the petition herein; but defendant has wholly failed and neglected to comply with said undertaking, and has not applied said money or any part thereof to the payment or liquidation of any demands against said estate, but continues to retain such sum.

Plaintiff says that afterwards to-wit: On the--day of--in the year--said David T. Morton paid off and discharged all liabilities due from him to said estate and was fully released, and discharged from his executorship and all liabilities thereon to said estate.

Plaintiff says on the 27th day of December in the year 1867, said David T. Morton departed this life at Lexington, in the County of Fayette and State of Kentucky, and leaving his last will and testament whereby he made and constituted plaintiff his sole legatee and devisee of all his property, and his sole executrix; and plaintiff further says that on the--day of January, in the year 1868, said will was duly proved and admitted to probate in the office of the clerk of the County Court of said county of Fayette, and letters testamentary were thereafter duly issued and granted to plaintiff as his sole executrix, by the said County Court of said county and plaintiff thereupon duly qualified as such executrix and entered upon the discharge of the duties thereof.

Plaintiff further says, that all debts and liabilities due or accruing from said testator or from his estate have been paid and satisfied in full, and the estate of said David T. Morton fully administered, and final settlement has been made of said estate of said David T. Morton, and plaintiff fully discharged and acquitted as said executrix, the laws of said State requiring said proceedings and no more. Plaintiff says that there are no debts or liabilities due or accruing from said testator or his estate to any person in the State of Missouri.

Plaintiff says that on the--day of--in the year 1872 she by attorney demanded of defendant said sum with lawful interest; but defendant refused and neglected to pay the same, wherefore plaintiff asks judgment for the same.”

To this petition the defendant filed a demurrer on the general ground that the petition did not state facts sufficient to constitute a cause of action. The court sustained this demurrer and rendered final judgment thereon against the plaintiff; to which action of the court the plaintiff at the time excepted, and has brought the case here by writ of error.

The principle point discussed in this court is as to the right of the plaintiff to sue in the courts of this State to recover a debt due to a person who resided and died in the State of Kentucky, where his estate had been fully administered, and who, by his last will which had been duly probated in Kentucky, bequeathed all his property to the plaintiff, and was not in any manner indebted in the State of Missouri. These facts are all stated in the petition and admitted by the demurrer.

If this suit had been brought by the plaintiff in her representative capacity as executrix of the estate of David T. Morton, it is clear that she must fail, as her appointment and qualification as executrix in the State of Kentucky would give her no authority to sue, as such, in this State. This is too well settled to admit of controversy, and, in fact, it is averred in the petition that the estate of said Morton had been fully settled in the State of Kentucky, and the plaintiff finally discharged from her duties as the executrix of said estate, so that no suit could now be brought by her, in the State of Kentucky, in her capacity of executrix.

In this case, however, the plaintiff does not pretend to sue in a representative character, she sues in her own right, claiming to be the owner of the debt or claim against the defendant for the money placed in his hands and the question is, is she the owner of the demand in such sense as will enable her to maintain an action in this State for its recovery?...