Sommer v. Franklin Bank

• Decision Date: 29 November 1904
• Citation: Sommer v. Franklin Bank, 83 S.W. 1025, 108 Mo. App. 490 (Mo. App. 1904)
• Court: Missouri Court of Appeals
• Parties: SOMMER v. FRANKLIN BANK et al.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 1025

108 Mo. App. 490

SOMMER v.FRANKLIN BANK et al.^*

St. Louis Court of Appeals. Missouri.

November 29, 1904.

EXECUTORS AND ADMINISTRATORS — FOREIGN ADMINISTRATORS — CAPACITY TO SUE — WAIVER — REVIEW.

1. Where plaintiff sues as an administrator, and his pleadings are not amended to show that he prosecuted the suit in any other capacity, he must be treated as having sued in such capacity alone, and not as trustee of an express trust.

2. Where plaintiff sues as administrator, under appointment in another state, and no special demurrer is interposed, his capacity to sue cannot be questioned after judgment.

3. Where the preponderance of evidence sustains the court's finding as to the residence of decedents in a suit by an administrator, it will not be disturbed.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by Charles Sommer, administrator of the estates of Meta and Elsa Bothe, deceased, against the Franklin Bank and Garrard Strode, public administrator.From a judgment for plaintiff, defendantGarrard Strode appeals.Affirmed.

Rassieur & Buder, for appellant.Geo. S. Grover and Blodgett & Davis, for respondent.

BLAND, P. J.

Meta Bothe died at Galveston, Tex., December 17, 1900, and her sister Elsa died at the same place March 19, 1901.They were both single and unmarried.The plaintiff was duly appointed administrator of the estates of both decedents, and qualified as such, in the state of Texas, under and by virtue of the laws thereof.Among other assets in Texas, plaintiff found a certificate of deposit issued to the two decedents for the sum of $4,160 by the Franklin Bank.Plaintiff, as administrator, demanded payment of the certificate from the bank, but was refused, whereupon, in April, 1903, in his representative capacity, as administrator, he commenced suit against the Franklin Bank, in the St. Louis circuit court, to recover the amount of the certificate of deposit.Pending the suit, and prior to the filing of the answer of the defendant bank (filed October 12, 1903), the wills of both decedents, which had been prepared by Leo S. Rassieur, Esq., for decedents in the city of St. Louis, and by them left in his custody, were produced and duly probated in the probate court of said city, and defendant Strode, public administrator of the city of St. Louis, pursuant to an order of the probate court, took charge of the estates of both decedents, with their wills annexed.The answer of the bank admitted its indebtedness on the certificate of deposit, set forth the claim of plaintiff as administrator under the laws of Texas, and of Strode as the Missouri administrator, and asked that Strode be made partydefendant and be required to interplead for the fund, and that it be allowed to pay the fund into court, a proper allowance be made for its costs and attorney's fees, and it be permitted to go hence.The court made an order that Strode interplead for the fund.In compliance with the order he filed his interplea alleging that decedents were residents of the city of St. Louis at the time of their death, the fact of the making and probating of their wills, denying that they were residents of the state of Texas at the time of their death, and alleging that they went from their home in the city of St. Louis to Galveston, Tex., on a visit, with the intention of returning to St. Louis, their home.It appears that both decedents, prior to going to Galveston, Tex., in the summer of 1900, resided in the city of St. Louis, and had resided there for several years.T...