E. R. Hawkins & Co. v. Quinette
| Decision Date | 04 April 1911 |
| Parties | E. R. HAWKINS & CO. v. STEPHEN QUINETTE, Administrator; E. R. HAWKINS & CO., Appellant; HARRY TROLL, Public Administrator, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
Judgment reversed and cause remanded. (with directions).
W. B and Ford W. Thompson, Fred Armstrong, Jr. for appellants.
M. E F. Pollack and P. A. Griswold for appellants.
(1) An appeal from the probate court is properly taken in the name of a claimant against an estate, even though after filing the claim and before the appeal the claimant has assigned his claim to another. Sec. 1924, R. S. 1909; McFaul v. Haley, 166 Mo. 56; Asher v. Railroad, 89 Mo. 116; 1 Ency. L. & P. (New Am. and Eng. Ency.) 1002. (2) (a) At common law surviving partners had a right to hold title to partnership assets and collect them and still have in Missouri subject only to be defeated by a statutory administration under chapter 2, article 3, Revised Statutes of Missouri 1909. Meriwether v. Railroad, 128 Mo.App. 647; Easton v. Courtwright, 84 Mo. 27; Bredow v. Mutual Savings Inst., 28 Mo. 181; Holeman v. Nance, 84 Mo. 674; Hargadine v. Gibbons, 114 Mo. 561; Crook v. Tull, 111 Mo. 283; Matney v. Gregg, 19 Mo.App. 107; Goodson v. Goodson, 140 Mo. 206. (b) Statutory administration being in derogation of the common law rights of the surviving partner, the statute is strictly limited so as to interfere with a surviving partner as little as the words of the law fairly warrant. Green v. Virden, 22 Mo. 506; Gregory v. Menefee, 83 Mo. 413. (3) In order to collect any particular claim a statutory administrator of a copartnership estate must show that the claim is the property of the co-partnership of which he is administrator and the fact that one is appointed administrator of a certain co-partnership is no evidence and raises no presumption that any particular property belongs to that partnership. Strode v. Gilpin, 187 Mo. 383. (4) A public administrator has no power under the law to take charge of a co-partnership estate except by order of the probate court. Sec. 302, R. S. 1909; Headlee v. Cloud, 51 Mo. 301. (5) The death of a partner ordinarily dissolves a partnership but where provision is made in the partnership articles (and perhaps where made in the will of the deceased partner) for the continuance of the partnership after such death, the partnership does not terminate with such death. Edwards v. Thomas, 66 Mo. 468; Farmers, etc., v. Garesche, 12 Mo.App. 584; Bank v. Tracy, 77 Mo. 594; Hax v. Burns, 98 Mo.App. 707; Browning v. Richardson, 186 Mo. 361. (6) While owing to considerations of sovereignty the United States courts will not issue process against the officer of a state court even in bankruptcy cases, yet when bankruptcy intervenes it is the duty of the state officers to give way to the United States court and the title vested in a trustee in bankruptcy over the assets of a decedent's bankrupt estate is superior to that of an administrator. In re Pierce, 102 F. 977; Scheiner v. Smith, etc., 112 F. 407.
Henderson, Marshall & Becker for respondent.
(1) An appeal will not lie from an order appointing or refusing to appoint an administrator. Flick v. Schenk, 212 Mo. 275; Looney v. Browning, 112 Mo.App. 195; State ex rel. v. Fowler, 108 Mo. 465. (2) That order of the probate court is not subject to attack or review, for it would be a collateral attack upon his appointment, and no such attack is allowable in law. In re Estate of Davison, 100 Mo.App. 263; Johnson v. Beazley, 65 Mo. 250; Griesel v. Jones, 123 Mo.App. 45. And this applies to a public administrator as fully as it does to any other kind of an administrator. Leeper v. Taylor, 111 Mo. 312; In re Hill's Estate, 102 Mo.App. 617; In re Estate, Judy, 166 Mo. 19. (3) In no view of the case are E. R. Hawkins & Company entitled to be the claimant, and Section 764, R. S. 1899, does not apply to proceedings in the Probate Court. Bredow v. Sav. Inst., 28 Mo. 181; Barnes v. Stanley, 95 Mo.App. 688; Goodson v. Goodson, 140 Mo. 206. (4) Harry Troll, public administrator, in charge of the partnership and individual estates, is alone entitled to administer upon assets belonging thereto in Missouri. (a) The real situs of the asset in question is in Missouri, for the debtor resides here, and the assets must be administered upon here. McCarty v. Hall, 13 Mo. 480; In re Estate Henry Ames & Co., 52 Mo. 293; State ex rel. v. Moore, 18 Mo.App. 416; Leakey v. Maupin, 10 Mo. 373; Smith v. Denny, 37 Mo. 20. (b) The grant of letters testamentary in Pennsylvania had no effect beyond the territorial limits of that state, and it was necessary to have administration upon this asset in Missouri. Erolin v. Wylie, 10 H. L. Cas. 19; White v. Rose, 32 B. 507, 43 E. C. L. 482; Atty-Gen'l v. Hope, 2 Cl. & F. 84; Preston v. Melville, 8 Cl. & F. 1; Tourton v. Flower, 3 P. Wms. 371; Atkins v. Smith, 2 Atk. 63; Scott v. Bentley, 1 Kay & J. 281; Taylor v. Berham, 5 How. (U.S.) 233; Harper v. Butler, 2 Pet. (U.S.) 239; Trecotheck v. Austin, 4 Mason (U.S.) 16; Vaughan v. Northup, 15 Pet. (U.S.) 1; Brownson v. Wallace, 4 Blatch. (U.S.) 455; Mellus v. Thompson, 1 Cliff (U.S.) 125; Wood v. Gold, 4 McLean (U.S.) 577; Swatzel v. Arnold, 1 Woolw. (U.S.) 383; Pecquet v. Swan, 3 Mason (U.S.) 469; Bartlett v. Hyde, 3 Mo. 490; Craslin v. Baker, 8 Mo. 437; State to Use v. Porter, 9 Mo. 352; Leakey v. Maupin, 10 Mo. 368; Hastings v. Meyer, Admr., 21 Mo. 519; Naylor's Admr. v. Maffatt, 29 Mo. 126; Henenkamp's Admr. v. Bergonier, 32 Mo. 569; State to use v. Fulton, 35 Mo. 323; Smith v. Denny, 37 Mo. 20; Vastine v. Divan, 42 Mo. 269; State ex rel. v. Moore, 18 Mo.App. 406; Becraft v. Lewis, 41 Mo.App. 546; Boeger v. Langenberg, 42 Mo.App. 7; McPike v. McPike, 111 Mo. 216; Green v. Tittman, 124 Mo. 376; Crohn v. Bank, 137 Mo.App. 712. (c) The payment of this debt to the surviving partners, or to the foreign executor, or to their assigns, would be no defense to the suit of the Missouri administrator. Bartlett v. Hyde, 3 Mo. 490; Becraft v. Lewis, 41 Mo.App. 552; Green v. Tittman, 124 Mo. 376; Crohn v. Bank, 137 Mo.App. 712. (d) An attachment against a partnership is dissolved by the death of one of the partners, and the appointment of an atministrator of the partnership estate, and the assets must be administered through the probate court. Barnes v. Stanley, 95 Mo.App. 688. (5) The pretended assignments to Raymond & Gordon, and by them to the United Mills Company, are void, so far as the assets in Missouri are concerned. Surviving partners cannot make a general assignment for the benefit of creditors. State ex rel. v. Withrow, 141 Mo. 69.
This is a proceeding for the allowance and classification of a demand against the estate of L. R. Wilson, deceased. It originated in the probate court of the city of St. Louis on March 5, 1906, through plaintiff's exhibiting a judgment against Wilson's estate, which it had obtained against him during his lifetime. Because E. R. Hawkins, a member of the plaintiff partnership was dead, the probate court, on the motion of the public administrator of the city of St. Louis, substituted him as claimant in lieu of the co-partnership, as though such partnership was dissolved by the death of Hawkins and the public administrator had succeeded to its rights touching the judgment theretofore exhibited against the estate of Wilson. By this order or judgment, substituting the public administrator for plaintiff as claimant with respect to the demand evinced by the judgment in favor of E. R. Hawkins & Company, the probate court, of course, effectually denied the right to further proceed with respect to that matter and plaintiff prosecuted an appeal therefrom to the circuit court. The circuit court, after hearing the case, dismissed the appeal, on the theory the co-partnership of E. R. Hawkins & Company was neither a creditor nor interested party within the purview of the statute pertaining to appeals from the probate court, and from this judgment plaintiff prosecutes an appeal to this court.
From what has been said, it appears the question for decision relates to the right of plaintiff to prosecute the appeal from the probate court to the circuit court. But the solution of this matter depends, in a measure, upon the merits of the controversy between plaintiff co-partnership and the public administrator as to the right to prosecute the demand against the estate of Wilson, for if the public administrator was without authority to assume control of the partnership of E. R. Hawkins & Company, then the demand against Wilson's estate might be prosecuted by the co-partnership, under our statute, in view of the fact that the suit was instituted on the judgment owned by it while such partnership was a going concern.
The facts out of which the controversy arose are somewhat complicated and to the end of a complete understanding of the whole matter, together with the principles of law invoked thereby, it will be essential to state them in extenso.
Lemuel R. Wilson was a resident of the city of St. Louis, where he departed this life, leaving an estate, of which defendant Stephen Quinette was appointed the administrator by the probate court of such city, and at the time here involved Wilson's estate was in the course of administration in that court. During his lifetime, on March 10, 1896, the co-partnership of E. R. Hawkins & Company recovered a judgment for $ 698.70 against Wilson in the circuit court of the city of St. Louis, and on March 5, 1906, such judgment was filed and exhibited by it as a demand against his estate in the probate court. The co-partnership of E. R. Hawkins...
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