Pinet v. Pinet

• Decision Date: 03 December 1945
• Parties: Hattie B. Pinet, v. H. L. Pinet and Mary K. Pinet, Husband and Wife
• Court: Kansas Court of Appeals

191 S.W.2d 362

239 Mo.App. 500

Hattie B. Pinet, v. H. L. Pinet and Mary K. Pinet, Husband and Wife

Court of Appeals of Missouri, Kansas City

December 3, 1945

Appeal from the Circuit Court of Jackson County; Hon. Thos. J Seehorn, Judge.

Affirmed in part, reversed and remanded in part.

A E. Watson and Martin J. O'Donnell for appellants.

(1) The court erred in giving the Decree of Descent of the Probate Court of Shawnee County, Kansas, the faith and credit that the plaintiff requested rather than the faith and credit required by Section 1, Article IV, United States Constitution, which requires not that full faith and credit shall be given decrees or judgments of courts, but to "the judicial proceedings" of other States. The petition filed in the Probate Court in Kansas was shown by the decree to refer only to real estate, and not to the note sued on, nor to any personal property; and therefore the Probate Court had no power to include personal property in its decree, and its decree was void for lack of jurisdiction to deal with personal property not mentioned in said petition. Reynolds v. Stockton, 140 U.S. 254; Charles v. White, 214 Mo. 207; State ex rel. Muench 217 Mo. 138; Cole v. Parker Washington Co., 276 Mo. 266; Hall v. Wilder Mfg. Co., 316 Mo. 822; Friedel v. Bailey, 329 Mo. 37; Banner v. Klaber, 330 Mo. 332; Gille v. Emmons, 58 Kan. 118. (2) The law of Kansas, when not pleaded, is presumed by the Missouri courts to consist of the common law of England, and therefore that common law as declared by the Missouri courts must be applied to any question of law not included in such pleading. David v. McCool, 179 Mo.App. 198; Rositzky v. Rositzky, 329 Mo. 662, l. c. 679; Clark v. Allamon, 71 Kan. 206. (3) Since such jurisdiction did not affirmatively appear from the face of the record, and was not pleaded or proved, the Decree of Descent was void, and the court erred in admitting it in evidence. Toler v. Cooner, 335 Mo. l. c. 119; Schroeder v. Edwards, 267 Mo. l. c. 480; Norman v. Insurance Co., 237 Mo. l. c. 584. (4) The alleged debt sued for had its situs in Missouri, because defendants who executed the note resided here at all times. Hence such debt, if it existed, constituted assets of the estate of Frank L. Pinet in Missouri, notwithstanding the note was in Kansas; the mere evidence of a debt such as a promissory note could not be seized upon by any person, heir, administrator or beneficiary under the laws of Kansas and be made the basis of an action in the Missouri courts. Bearcraft v. Lewis, 41 Mo.App. 546; McCarty v. Hall, 13 Mo. 480; Miller v. Hoover, 121 Mo.App. 568; Thompson Estate, 339 Mo. 410; McMaster v. Gould, 240 N.Y. 379, 148 N.E. 556; Helme v. Buckalew, 229 N.Y. 363. (5) The court erred in failing to sustain the demurrer to the evidence on the ground that the Decree of Descent by the Kansas Probate Court on its face showed that it was void for want of jurisdiction. Gray v. Richmond Bicycle Company, 167 N.Y. 348, l. c. 353; Davis v. Cornue, 151 N.Y. 172, Syl. 1 and 2; Stuart v. Dickerson, 290 Mo. 516; Wright v. Wright, 350 Mo. 325, l. c. 336. (6) The court erred in instructing the jury to find for plaintiff, for the reason that the failure of plaintiff to plead that she was the owner or holder of the note sued on prevented the petition from stating a cause of action. Spears v. Bond, 79 Mo. 467, Syl. 4; Donovan v. Pottery Co., 9 Mo.App. 595; Millbank Milling Co. v. Packwood, 133 S.W. 667. (7) The children of plaintiff had no title to the note, and hence could not sell it and vest title in plaintiff at the time of the alleged sale. Wass v. Hammontree, 77 S.W.2d 1006, l. c. 1010.

S. L. Harris, Arthur S. Brewster, Lloyd S. Miller and William A. Gray for respondent.

(1) The execution of the note by the appellants, not being denied under oath, was admitted. Mo. R. S. A. 1116. (2) Payment not being pleaded is not an issue in the case. Emory v. Emory, 53 S.W.2d 908; Haycraft v. Haycraft, 154 S.W.2d 617. (3) If payment is claimed in other medium than money, such payment and the manner thereof must be specifically pleaded and proved. This was not done. People's Bank v. Stewart, 117 S.W. 99, 136 Mo.App. 24. (4) Probate courts are courts of general jurisdiction upon matters committed to them by statute and the judgments and orders of probate courts of sister states are entitled to the same credit and presumptions accorded all judgments and decrees of other courts of general jurisdiction. Jones v. Peterson, 72 S.W.2d 76, 335 Mo. 242; Blattel v. Stallings, 142 S.W.2d 9, 346 Mo. 450; Texier v. Texier, 119 S.W.2d 778, 242 Mo. 1220; Citizens' Bank & Trust Co. v. Moore, 263 S.W. 530, 215 Mo.App. 21. (5) That the petition was insufficient to give the court jurisdiction to issue an order within its statutory authority is not a proper attack on an order of a court of general jurisdiction, it being presumed the court had before it the necessary jurisdictional facts and pleadings. Toler v. Coover, 71 S.W.2d 1067, 335 Mo. 113; Irwin v. Rawling, 141 S.W.2d 223; Severson v. Dickinson, 259 S.W. 518, 216 Mo.App. 572. (6) The decree of descent as shown by the pleaded statutes is a part of the probate law of Kansas and a substitute for administration of decedents' estates, and once administration is had in a foreign state pursuant to its laws, the Missouri court must recognize the orders of the probate court of a foreign state vesting property in certain persons and such persons can sue and recover possession thereof or thereon in the courts of Missouri. Kansas G. S. 1941 Supp., 59-2250, 59-2251, 59-2221 and 59-2239; Morton v. Hatch, 54 Mo. 408. (7) Assuming the situs of the debt evidenced by the promissory note to be in Missouri, the Probate Court of Shawnee County, Kansas, was not barred from vesting the title under the law in the widow and appropriate children. Morton v. Hatch, 54 Mo. 408. (8) Under the pleaded statute, the effect of the decree of descent was to assign the property to the widow and children according to the laws of intestate succession as of the time of the death of the deceased, and therefore the assignment was binding on the children, gave the widow sufficient title to the children's interest in the note, and, together with the decree of descent, gave the widow title to the note. Kans. G. S. 1941 Supp., 59-2251; Vantage Mining Co. v. Baker, 155 S.W. 466; Brown v. Baxter, 77 K. 97, 94 P. 155. (9) Under the Missouri statutes, once the laws of a sister state are pleaded, their construction and the validity of any decree made thereunder are questions of law for the court to determine and not the jury. Mo. R. S. A. 958; Ramey v. Missouri Pac. R. Co., 21 S.W.2d 873, 323 Mo. 662; First Nat. Bank of Mission, Texas, v. Gordon, 6 S.W.2d 60. (10) The court properly peremptorily instructed the jury to bring in a verdict for respondent. Home Trust Co. v. Josephson, 95 S.W.2d 1148.

OPINION

Cave, J.

This is a suit on a promissory note. Defendants' answer is a general denial and a counterclaim. At the close of plaintiff's evidence defendants offered an instruction directing a verdict for them, which was overruled. There was no further evidence and the court gave an instruction directing the jury to return a verdict for plaintiff on the note and on the counterclaim. Judgment was entered accordingly, and defendants appeal.

The evidence discloses that on August 11, 1936, defendants executed the note in suit, payable to Frank L. Pinet or order, and due five years after date. The defendants at all times here involved resided in Missouri and Frank resided in Shawnee County, Kansas. On June 15, 1941, he died intestate in that county, leaving his widow, the plaintiff, and five children as his only heirs.

No administration was had on his estate in Missouri or Kansas. But Section 29-2250, of the Kansas Statutes, provides that whenever a person has been dead for more than one year and has left property or any interest therein and no will has been admitted to probate nor administration had in that state, then any person interested in the estate may petition the court of the county of decedent's residence to determine the descent of any property owned by decedent. Section 59-2251, of the same code, provides that upon proof of such petition the court shall enter its decree assigning the property to the persons entitled thereto at the time of the decedent's death pursuant to the law of intestate succession then in force.

Under authority of such statute the widow (plaintiff in this case), on August 12, 1942, filed her petition in the probate court of Shawnee County and the court entered a decree ordering "that the above described real estate and all other property within the state of Kansas, and owned by the decedent at the time of his death . . . be and the same is hereby assigned to and vested in the following named persons in the following proportions; . . . (Italics ours). Then follow the names of the widow and five children; the widow being assigned a one-half interest and each child a one-tenth interest. About a year prior to such order, the children had executed what is called a "Bill of Sale and Assignment of Personal Property," conveying to plaintiff their interest in and title to all the personal property owned by Frank Pinet at the time of his death.

Plaintiff claims to be the owner and holder of the note in suit by virtue of such probate order and assignment. Defendants deny that such order and assignment convey any title to her.

A number of assignments of error are made, but concededly the first vital question is whether the plaintiff is the legal owner and holder of the note. Defendants (appellants) contend that since they at all times resided in Missouri, the situs of the debt (the note) was in Missouri and not in Kansas...