Scruggs v. Scruggs

• Decision Date: 19 November 1900
• Docket Number: 2,391.
• Citation: 105 F. 28
• Parties: SCRUGGS v. SCRUGGS.
• Court: U.S. District Court — Western District of Missouri

105 F. 28

SCRUGGS v. SCRUGGS.

No. 2,391.

United States Circuit Court, W.D. Missouri, Western Division.

November 19, 1900

A. N Gossett, for plaintiff.

Judge R. H. Field, for defendant.

PHILIPS District Judge.

It is conceded by plaintiff's counsel that this is, in legal effect, an action for conversion. It is a fundamental and quite universal rule that the real estate of an intestate descends directly to the heirs at law, and that the personal estate does not descend directly to the heirs, but goes exclusively to the administrator,-- both the title and the right of possession. Smith v. Denny, 37 Mo. 20; Becraft v. Lewis, 41 Mo.App 552; State v. Moore, 18 Mo.App. 411; Naylor's Adm'r v. Moffatt, 29 Mo. 126. By the statute of Kansas (section 1927, Gen. St. 1899) original jurisdiction is conferred upon the probate courts of Kansas as follows:

'Sec. 1927. The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction: First, to take the proof of last wills and testaments, and admit them to probate, and to admit to record authenticated copies of last wills and testaments executed, proved and admitted to probate in the courts of any other state, territory or country; second, to grant and revoke letters testamentary and of administration; third, to direct and control the official acts of executors and administrators, settle their accounts, and order the distribution of estates; fourth, to appoint and remove guardians for minors, persons of unsound mind, and habitual drunkards, and make all necessary orders relating to their estates, to direct and control their official acts, and to settle their accounts; fifth, to bind apprentices, and exercise such control and make such orders respecting them and their masters as the law prescribes; sixth, to hear and determine cases of habeas corpus; seventh, to have and exercise the jurisdiction and authority provided by law respecting executors and administrators, and the settlement of the estates of deceased persons.'

And the whole matter of the custody of personal property, the payment of debts, and the distribution of the assets among the creditors, legatees, and distributees is conferred upon the probate court. As said in McMillan v. Wacker, 57 Mo.App. 222:

'On the death of a party the personal property passes to the administrator, and he alone has a right to the possession thereof, unless, indeed, the probate court shall, by order, dispense with any administration, as provided by statute. It is only 'after making such order such widow or minor children shall be authorized to collect, sue for, and retain the property belonging to such estate.' The probate court is the only tribunal having original jurisdiction to determine the question as to whether or not an administration is necessary.'

Under the Kansas statute, the widow, who is the administratrix in this case, was entitled to one-half of the personal estate and only after settlement with the court, and on an order of distribution, do the heirs become entitled to receive their ascertained interests. There is no tenancy in common between the administrator and the heir in the personal property. The right of possession in the administrator is exclusive, and the heir can never maintain an action against the administrator for his distributive share until the probate court, of original and exclusive jurisdiction, has determined who the distributees are, and made an order of distribution. As said in Griswold v. Mattix, 21 Mo.App. 286: 'It must be ascertained by a competent tribunal. The probate court is that tribunal. Its jurisdiction is original and exclusive. ' Until such order of distribution, and an ascertainment by the probate court of what the distributive share of the heir is, how can the heir maintain an action for conversion? It is a fundamental principle governing the action for conversion that 'the plaintiff must show a legal title. He must have the property, general or special, or the actual possession or right to immediate possession, at the time of the conversion. ' Cooley, Torts (2d Ed.) 517. In law, as defined in Black's Law Dictionary, it is 'the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights. A constructive conversion takes place when a person does such acts in reference to the goods of another as amount in law to the appropriation of...