Richardson v. Busch

• Decision Date: 30 June 1906
• Citation: 95 S.W. 894,198 Mo. 174
• Parties: RICHARDSON, Administrator, Appellant, v. BUSCH
• Court: Missouri Supreme Court

95 S.W. 894

198 Mo. 174

RICHARDSON, Administrator, Appellant, v. BUSCH

Supreme Court of Missouri

June 30, 1906

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Rassieur Schnurmacher & Rassieur for appellant.

(1) The authority of plaintiff, as public administrator, to administer the estate and to maintain this action, is not open to collateral attack; the probate court alone has jurisdiction in a direct proceeding to question his power. Leeper v. Tayior, 111 Mo. 312; Vermillion v. Le Clare, 89 Mo.App. 55. (2) Letters of administration have no extra-territorial force. A New York administrator could not sue in our courts for the possession of the stock nor recover from defendant for conversion thereof. He would have no legal capacity to maintain any action whatever in Missouri respecting the stock. Naylor v. Moffatt, 29 Mo. 126; May v. Burk, 80 Mo. 675; McPike v. McPike, 111 Mo. 216; Gregory v. McCormack, 120 Mo. 657; Wolf v. Ins. Co., 75 Mo.App. 306, 22 Am. Dig (Century Ed.) 3311. (3) A local administrator may pass the legal title to shares of stock in a foreign corporation. Middlebrook v. Bank, 41 Barb. 481, affirmed 3 Abb App. Dec. 295; Hutchins v. Bank, 12 Met. (Mass.) 421; Luce v. Railroad, 63 N.H. 588; Brown v. Gas Light Co., 58 Cal. 426; In re Navig. Co., 51 N. J. L. 78. (4) While certificates or shares of stock are not, strictissimi juris, negotiable paper, they approximate it as nearly as possible, and a mere delivery of such certificate, properly indorsed, transfers to the assignee the title to the shares anywhere, whether in the domicile of the corporation or elsewhere. Trust Co. v. Lumber Co., 118 Mo. 458; Withers v. Bank, 67 Mo.App. 115; McAllister v. Kuhn, 96 U.S. 87; Bank v. Lanier, 11 Wall. (78 U.S.) 369; Brown v. Gas Light Co., 58 Cal. 426. (5) The wrongful refusal to surrender the certificates of stock amounted to a conversion by defendant, for which an action will lie. Withers v. Bank, 67 Mo.App. 115; McAllister v. Kuhn, 96 U.S. 87. (6) The following choses in action have been held to be "assets" or "property" or "goods and chattels" sufficient whereon to base the right of ancillary administration: (a) Simple debts owing to the non-resident deceased by debtors within the State where such ancillary administration is applied for. McCarty v. Hall, 13 Mo. 480; Becraft v. Lewis, 41 Mo.App. 546; Equitable Life Assur. Society v. Vogel, 76 Ala. 441; Henderson v. Clarke, 14 Ky. 277; Hyatt v. James, 71 Ky. 9; Still v. Woodville, 38 Miss. 646; Smith v. Monroe, 23 N.C. 345; Appeal of Picquet, 22 Mass. 65; Pinney v. Gregory, 102 Mass. 186; Swancy v. Scott, 28 Tenn. 327; Stearns v. Wright, 51 N.H. 600; Kohler v. Knapp, 1 Bradf. Sur. 241; In re Hopper, 5 Dem. Sur. 242. (b) Specialty debts wherever the specialty may happen to be at the time of the owner's death. Beers v. Shannon, 73 N.Y. 292; Fletcher v. Sanders, 7 Dana (Ky.) 351; Grace v. Hannah, 51 N.C. 94. (c) A suit for unliquidated damages pending at the death of the non-resident, even though the suit afterwards result unfavorably. Robinson v. Epping, 24 Fla. 237; Murphy v. Creighton, 45 Iowa 179. (d) The right of action given by statute to an administrator for the death of his decedent by wrongful or negligent act. Morris v. Railroad, 65 Iowa 727; Brown's Adm'r v. Railroad, 97 Ky. 228; Findlay v. Railroad, 106 Mich. 700; Hutchins v. Railroad, 44 Minn. 5. (e) An insurance policy. Ins. Co. v. Woodworth, 111 U.S. 138; Holyoke v. Ins. Co., 84 N.Y. 648; Smith v. Ins. Co., 57 F. 133; Ins. Co. v. Smith, 67 F. 694. And the ancillary administrator, having the right to the possession of an insurance policy on the life of a non-resident, has a superior cause of action to that of the principal administrator. Merrill v. Ins. Co., 103 Mass. 245.

Finkelnburg, Nagel & Kirby for respondent.

(1) Doubtless the allegation that defendant "converted" the property is an allegation of fact, just as is an allegation that defendant has "negligently" done a certain act, but where a wrong is charged in general terms, accompanied by a specific statement of acts constituting such wrong, it is a well-settled rule of pleading that the cause of action is limited to the specific acts enumerated. Waldhier v. Railroad, 71 Mo. 515; Hutson v. Tyler, 140 Mo. 263; Chitty v. Railroad, 148 Mo. 75; Summers v. Ins. Co., 90 Mo.App. 701; Arnold v. Maryville, 110 Mo.App. 260. (2) The stock was assets in New York, where the corporation was organized and the decedent resided, and was not assets in Missouri, where the paper certificate was situated. The result of the authorities may be briefly summarized as follows: As to the situs or corporate stock belonging to a decedent one of the following three propositions is true: 1. The situs is where the corporation is organized. This has the direct support of the following authorities: Winter v. Louden, 99 Ala. 263; Grayson v. Robertson, 122 Ala. 330; Murphy v. Crouse, 135 Cal. 14; Arnold v. Arnold, 62 Ga. 627; Woerner on Administration (2 Ed.), * 451; 13 Am. and Eng. Ency. Law (2 Ed.), 924. 2. The situs is the domicile of decedent. This has the support of the following authorities (cited and apparently relied on by appellant): Middlebrook v. Bank, 41 Barb. 481; Hutchins v. Bank, 12 Met. 421; Luce v. Railroad, 63 N.H. 488; Brown v. Railroad, 58 Cal. 426; In re Cape May Co., 51 N. J. L. 78; but to this extent only, -- that in the absence of administration in the State where the corporation is organized, a conveyance by the domiciliary administrator will be recognized and given effect. 3. The situs is where the paper certificates happen to be situated at the time of decedent's death. This has the direct support of no authorities. Respondent contends that the first proposition is the true one, and that it is in accord with the principles announced by the court of this State in the cases of Armour v. Bank, 113 Mo. 12; Caffery v. Coal Co., 95 Mo.App. 174; McCarthy v. Hall, 13 Mo. 480; In re Ames' Estate, 50 Mo. 290; Morton v. Hatch, 54 Mo. 411; Becraft v. Lewis, 41 Mo.App. 546. But it makes no difference, so far as this case is concerned, whether the first or second be adopted. In either event, the situs of the stock is in New York, the domicile of both the decedent and the corporation. (3) If anything can be regarded as settled, both in this State and elsewhere, it is the proposition that the situs of a simple contract debt evidenced by a negotiable instrument, is where the debtor resides, and not where the instrument is found. McCarthy v. Hall, 13 Mo. 480; In re Ames' Estate, 52 Mo. 290; Morton v. Hatch, 54 Mo. 411; Becraft v. Lewis, 41 Mo.App. 546. If this is true, it is difficult to understand how the mere presence of the note in this State could constitute assets, the title to which vested in the ancillary administrator; how a denial of the ancillary administrator's non-existent title could constitute a conversion; how Busch's surrender of the evidence of title to the persons in whom the title was vested, and his refusal to surrender it to the person in whom no title was vested, could constitute a wrong to the latter. Hammond v. Hastings, 134 U.S. 401.

VALLIANT J. Lamm, J., dissents.

OPINION

In Banc

VALLIANT, J.

-- The petition states that the plaintiff is the public administrator in the city of St. Louis, and that in that right he has taken charge of the estate of John C. De La Vergne, deceased, who at the time of his death was a resident of the State of New York; that De La Vergne in his lifetime, being the owner of 500 shares of stock in a New York corporation called the De La Vergne Refrigerating Machine Company, evidenced by two certificates for 250 shares each, delivered those certificates to the defendant Busch to indemnify him against his liability on a bond for $ 24,000 which he had signed as surety for the De La Vergne corporation at the request of De La Vergne in an attachment suit in the city of St. Louis against the corporation; that while the attachment suit was pending De La Vergne died in New York and plaintiff in his official capacity as public administrator immediately took charge of the De La Vergne estate in Missouri; that thereafter the attachment suit was dismissed and Busch's liability on the bond ceased; that thereupon the plaintiff demanded of Busch the certificates of stock, but Busch refused to deliver the same "and wrongfully converted the said certificates and shares of stock to his own use," to the plaintiff's damage in the sum of $ 50,000, for which sum he asks judgment. The court sustained a demurrer to the petition and the plaintiff declining to plead further, judgment for defendant was entered, and plaintiff appealed.

I. The first point made in the brief of appellant is that his authority as public administrator to take charge of the estate of the deceased De La Vergne cannot be questioned in a collateral proceeding. That is a correct statement of the law, but that rule of law is not involved in this case. The defendant is not in this case denying the authority of the plaintiff to sue for and recover anything that the deceased De La Vergne left in the way of an estate in Missouri, but he is denying that the stock in the New York corporation of which he holds the certificates was ever in Missouri and therefore he says that it does not belong to the Missouri administrator. It is a question of title to the thing sued for, not the official character of the plaintiff.

II. It is also said that the petition charges a conversion of the stock and, it is argued, the legal effect of that act was to change the character of the asset from stock in the corporation to a right of action for the tort, and that right of action exists where the wrongdower is found.

It is true the petition charges in general words...