State ex rel. Citizens Bank of Warrenton v. Allen

• Decision Date: 30 December 1922
• Citation: 247 S.W. 411,296 Mo. 636
• Parties: THE STATE ex rel. CITIZENS BANK OF WARRENTON v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

247 S.W. 411

296 Mo. 636

THE STATE ex rel. CITIZENS BANK OF WARRENTON v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

December 30, 1922

Judgment of Court of Appeals quashed.

Jesse H. Schaper, Emil P. Rosenberger, J. W. Delventhal and E. E Schowengerdt for relator.

(1) The will was not invalid or the bequest of stock to testator's wife (who would take a distributive share in the event testator died intestate) was not a nullity because of the fact that there were pretermitted heirs, and the respondents, in holding that the bequest of said stock to the widow was ineffective and a nullity, have failed to follow the law announced in the latest controlling decisions of the Supreme Court on this question. Hill v. Martin, 28 Mo. 78, 81; Schneider v. Koesiter, 54 Mo. 500. (2) The executrix, under the statute (Sec. 207, R.S. 1919) and the law, was authorized to assign, without an order of the probate court, the bank stock in question to the legatee named in the will in discharge of such legacy, and the respondents, in holding that an assignment of stock could not be made by an executrix without an order of the probate court, pursuant to the terms of the will, to the legatee named in the will, in discharge of such legacy, have failed to follow the rule announced in the latest controlling decision of the Supreme Court on this question. Wolff v Berning, 74 Mo. 96; Stagg v. Linnenfelser, 59 Mo. 336; Chandler v. Stephenson, 68 Mo. 450. (3) A testator may, by his will, confer upon his executrix the power to assign, sell or dispose of his property for any purpose to which he wishes his property applied, and in such a case an order or license of the probate court is not necessary, and the respondents, in holding that the testator could not confer such authority or power on his executrix have failed to follow the rule announced in the latest controlling decisions of the Supreme Court on this point. Whisker v. Rishe, 167 Mo. 532. (4) Partition was not the proper proceeding for the pretermitted heir to adopt to obtain his interest in the personal estate, because the specific personal property sought to be partitioned had been previously assigned and delivered by the executrix, pursuant to the specific bequest in the will, to the legatee named in the will (said legatee being a person who would take a distributive share in the event testator had died intestate), who had sold the same to third parties and retained the proceeds, but the remedy of such pretermitted heir was against the specific legatee who had received such property for contribution (Secs. 514, 554, R.S. 1919), and the respondents, in holding that partition was the proper procedure under these facts have failed to follow the rule announced in the latest controlling decisions of the Supreme Court on this question, as follows: Schneider v. Koester, 54 Mo. 500; Hill v. Martin, 28 Mo. 81; Burch v. Brown, 46 Mo. 441; Levin v. Stevens, 7 Mo. 90. (5) The probate court was without jurisdiction to render a judgment for the partition in kind of the stock in question between Catherine Koelling and the pretermitted heirs, because said property had passed out of the possession of the estate and out of the possession of each and all of the parties to said proceedings, two years prior to the institution of such partition proceedings, and such property was at the time held, in the possession of and claimed adversely by third parties, and the respondents, in holding that the probate court had jurisdiction to partition said stock in kind failed to follow the rule announced in the latest controlling decisions of the Supreme Court on the question in point. Hutson v. Hutson, 139 Mo. 229, 235; Colvin v. Hanenstein, 110 Mo. 575, 582; Lambert v. Blumenthal, 26 Mo. 471, 474; Armour v. Frey, 253 Mo. 447, 480; Shaw v. Gregoire, 41 Mo. 407, 410; Chamberlain v. Waples, 193 Mo. 96, 110; Waddle v. Frazier, 245 Mo. 402.

William Waye, Jr., for respondents.

(1) In failing to name or mention any of his children in his will, the testator died intestate as to such children and as to them there was no will. And respondents in holding said will ineffective as to said children followed the latest controlling decisions of the Supreme Court. Bradley v. Bradley, 24 Mo. 311, 319; Burch v. Brown, 46 Mo. 441; Meyers v. Watson, 234 Mo. 286; Dobschutz v. Dobschutz, 279 Mo. 120. (2) The ruling of respondents that an assignment of stock could not be made by an executrix under Section 207, Revised Statutes 1919, without an order of the probate court was in answer to the point made in the Court of Appeals that relator had paid certain debts of the deceased and was thereby subrogated to the rights of said creditors. In such ruling, respondents followed the latest controlling decisions of the Supreme Court. (3) The respondents, in holding that the testator could not confer on his executrix the power to assign or sell said stock, followed the prior decisions of the Supreme Court. Authorities cited above. (4) Partition was the proper proceeding for the pretermitted heir to adopt to obtain his interest in the bank stock left by testator and said respondents, in holding that partition was the proper procedure, followed the rule announced in the latest controlling decisions of the Supreme Court. Schaper's Executor v. Schaper, 158 Mo.App. 609; Breidenstein v. Bertram, 198 Mo. 328; Dobschutz v. Dobschutz, 279 Mo. 120; Vantine v. Butler, 250 Mo. 451. (5) At the time of such partition proceedings said bank stock was not held adversely by third parties, and the probate court had jurisdiction to partition said bank stock in kind between the widow and pretermitted heirs of the testator. And respondents, in holding that the probate court had jurisdiction to partition said stock, followed the latest controlling decisions of the Supreme Court. Sec. 239, R.S. 1919; State ex rel. v. Ewing, 264 Mo. 331; Aull v. St. Louis Trust Co., 149 Mo. 1; 14 C. J. 478, 479; Armour Brothers Banking Co. v. National Bank, 113 Mo. 12; Bank v. Royalty Co., 259 Mo. 637, 648. (6) Where shares of stock have been illegally transferred by the officers of a corporation, a bill in equity will lie to compel the corporation to issue to the true owner proper certificates for such stock, and also to pay to him the dividends received on the shares illegally transferred. Trimble v. Bank, 71 Mo.App. 407; Telegraph Co. v. Davenport, 97 U.S. 369; Withers v. Bank, 67 Mo.App. 115, 120; Keller v. Eureka Brick Machine Mfg. Co., 43 Mo.App. 84; Pratt v. Boston & Albany Railroad, 126 Mass. 443; Chicago Edison Co. v. Fay, 62 Ill.App. 55; Sewall v. Boston Water Power, 86 Mass. 277; Booth v. Taunton Coffee Company, 123 Mass. 110; Pollock & Pollock v. National Bank, 7 N.Y. App. 274; St. Romes v. Levee Steam Cotton Press Company, 127 U.S. 614, 619; Geyser-Marion Gold Mining Co. v. Stark, 53 L. R. A. 687; 20 Ency. Pleading & Practice, 812, 813, 814; Chicago Edison Co. v. Fay 164 Ill. 323.

GRAVES, J. James T. Blair and Higbee, JJ., dissent; Elder, J., concurs in all except what is said as to the Leahy Case.

OPINION

In Banc.

Certiorari.

GRAVES J.

Certiorari to St. Louis Court of Appeals. Relator is a banking corporation at Warrenton, Missouri. Taking the opinion of the Court of Appeals for the evidenciary facts, it would appear that one Theodore Koelling died in Warren County in April, 1913, owning at the time some nineteen shares of stock in relator bank. Koelling left a will, but in it did not mention his three children. His wife was the sole beneficiary under his will. There were three cases, each having for a plaintiff one of the pretermitted children. They were consolidated and heard as one. As we get the facts from the Court of Appeals, it will be best to let its opinion speak. Taking the case of one child (Carl C. Koelling) the Court of Appeals says:

"Plaintiff by a bill in equity seeks an order and decree of the court compelling defendant bank to transfer upon its books to plaintiff five shares of its capital stock, to issue to plaintiff a certificate for same, and to pay plaintiff the dividends earned thereon from March 18, 1915.

"After alleging the incorporation of the defendant, the bill states that Theodore Koelling died in Warren County, Missouri, on the 24th day of April, 1913, leaving a last will and testament, which was duly probated by the probate court of said county on April 28, 1913; that said Theodore Koelling died leaving the following heirs: The plaintiff Carl C Koelling, Clara Stadtmann and Frederick Koelling, his children, and Catherine Koelling, his wife. That the children, including the plaintiff, were not named or provided for in said last will, and said Theodore Koelling died intestate as to said plaintiff and the other named children, and that the plaintiff became on the death of said Theodore Koelling entitled to such proportion of the estate of Theodore Koelling, real and personal, as if the said Koelling had died intestate, and was entitled to have the same assigned to him.

"It is alleged that letters testamentary on the estate were duly issued to Catharine Koelling, the widow, who qualified as executrix, made due publication of notice of said letters and that all demands and claims against said estate have been duly paid and satisfied. That said Koelling died possessed of certain personal property, namely, nineteen shares, of the par value of $ 100 each, of the capital stock of the defendant bank, which stock was not needed for the payment of the debts, demands and claims against the estate of Theodore Koelling. That on November 13, 1917, said shares of stock were duly partitioned in kind by the probate court between the widow, Catharine Koelling, who was the sole beneficiary in the will, and the...