State v. Fidelity & Deposit Co.

Decision Date16 September 1927
Docket NumberNo. 25947.,25947.
CourtMissouri Supreme Court
PartiesSTATE ex rel. GOTT v. FIDELITY & DEPOSIT CO. OF BALTIMORE, MD.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by the State, on the relation of Effie C. Gott, against the Fidelity & Deposit Company of Baltimore, Md. From a judgment in favor of plaintiff, defendant appeals. Remanded with directions.

R. E. Bell, of Hermosa Beach, Cal., and Joseph A. Guthrie, and Caleb S. Monroe, both of Kansas City, Mo., and S. L. Mathews, of Kansas City, Kan., for appellant.

A. E. Watson and Daniel C. Ketchum, both of Kansas City, Mo., and Hubert Lardner, of Ft. Scott, Kan., for respondent.

ELLISON, C.

Action in the circuit court of Jackson county against surety on administrator's bond, to recover a sum representing the balance on hand for distribution in the estate of Thomas A. Mathews, deceased, as shown by the final settlement of his administrator in the probate court of Jackson county. The petition prayed also for a 10 per cent. penalty for vexatious delay and a reasonable attorney fee. The sole defendant is a corporation engaged in the indemnity bonding business under the insurance laws of Missouri. The administrator was not joined as a defendant in the amended petition on which the case was tried. The relator, or plaintiff, is the widow of the intestate. She had a verdict for $7,505.90 debt, $597.82 interest, $350 penalty, and $1,500 attorney fee. From the judgment on the verdict, the defendant has appealed.

The deceased left no lineal descendants. The widow claims the entire personal estate as sole distributee, on the ground that he died a resident of Kansas. Under section 253, R. S. Mo. 1919, the personal estate of a nonresident decedent descends according to the laws of his domicile, End section 3842, G. S. Kansas, provides the estate of a deceased husband shall go to his widow if he leave no issue. The defendant appellant maintains the intestate was, in fact, a resident of Missouri, and that the widow is entitled only to one-half the estate, under sections 321 and 325, R. S. Mo. 1919.

While the respondent's petition alleged the deceased lived in Kansas, her course and theory of trial did not open this issue on its merits. The pleaded contentions on which she stood were (a) that the Jackson county probate court, in granting letters of administration on the estate, found the last residence of the intestate was in Kansas; (b) and that later the same court adjudged her to be sole distributee for that reason, in passing on an application for an order of partial distribution filed by the administrator. She asserts these two judicial acts were conclusive determinations of the crucial question of residence, and that the latter thereby became res judicata as against the defendant surety.

The trial court took this view of the case, excluded the defendant's proffered testimony on the issue of fact, and peremptorily instructed the jury to find for the plaintiff, submitting only the issue as to whether the appellant had been guilty of vexatious delay. The defenses interposed by the appellant will be noticed in the course of the opinion. It should be remembered, however, that the answer did not sound in equity, and that the cause was tried to a jury as a law case.

The facts must be reviewed a little more fully before taking up the legal questions. The intestate, Thomas A. Mathews, died intestate on or about July 26, 1920, at Mound City, Kan. An administration of his estate was commenced in the probate court of Jackson county, Mo., ten days thereafter on August 5, 1920, when his brother W. G. Mathews filed a verified application for letters. The application stated the intestate left no lineal descendants; that his widow was a resident of Mound City, Kan.; that his heirs (naming three brothers, one sister, eight nieces, and three nephews) were nonresidents of Missouri, except the applicant, who lived in Kansas City, Mo. Regarding the domicile of the deceased and the location of his estate, the application recited he was a resident of Mound City, Kan., at the time of his death, and that he owned real estate in Missouri of the probable value of $9,000. No findings of fact were contained in the order of appointment, and there was no appearance by any of the parties in interest, except the administrator, so far as the record shows. The bond upon which this suit is based was given later, but no question is raised concerning its application to the proceedings involved.

The validity of the appointment of the administrator by the foregoing proceeding is conceded, but the applicant offered, at the trial below, to prove that, in signing the application, the administrator understood and meant the recital therein concerning the deceased's residence in Kansas to refer to the place of his death and not to his domicile, and that the deceased, in fact, had never been a resident, citizen, or voter of that state. This testimony, as already stated, was excluded by the trial court; we set it out here for a better understanding of the matter, although no point has been preserved on this appeal respecting the rejection of the evidence.

On June 30, 1921, through his attorney, S. L. Mathews, another brother of the deceased, the administrator filed an application for an order authorizing him to distribute $5,000 to the collateral heirs, to offset a payment of the same amount previously made to the widow, and for an allowance for attorney fees. This application was taken up for consideration by the probate court on November 9, 1921, during the September term. At the time Hon. Ben R. Estill of the Kansas City bar was sitting as judge pro tem., in the absence of Judge Guinotte, the regular judge, pursuant to sections 2563-2566, R. S. Mo. 1919. The testimony affirmatively shows the administrator and his brother, Attorney S. L Mathews, were present in person, and the widow was present by her attorney. Evidence was heard, arguments made, briefs submitted, and the cause taken under advisement.

From and after the hearing on November 9, 1921, nothing further was done in regard to the application at that term of the probate court, or at the next term, but on April 26, 1922, during the February term, it happened that Judge Estill was again presiding as judge pro tem. On this day, judge Estill called up the application in the absence of the parties, except the widow's attorney, and entered an order finding that the intestate was a resident of Kansas when he died, that his heirs were not entitled to any part of the estate personalty, and that the widow was entitled to the whole of said estate. It was accordingly ordered that the application for a partial distribution be denied, as was the allowance of attorney's fees "at this time." The order further directed the administrator to pay over to the widow all of the personalty of the estate located in Missouri, "after the payment of the necessary costs of administration."

The probate records and papers are silent as to whether the distributees of the estate were notified of the administrator's application for the foregoing order in accordance with section 241, as re-enacted by Laws Mo. 1921, p. 115. The administrator and his brother, Attorney Mathews, both of whom were heirs and distributees, were permitted to testify the only notice they had of the order was from a letter sent by the widow's attorney the next day, inclosing a copy of the order. No appeal was taken.

The administrator filed his final settlement, showing a balance of $7,505.90, on September 21, 1922. The probate court approved the settlement on the same day, finding the estate fully administered and all costs paid. It was ordered that the administrator pay over the balance in his hands "to the parties entitled thereto," and that on filing proper receipts he stand fully and finally discharged. No appeal from the order of final settlement was taken by any party in interest.

Other evidence was presented which may be referred to briefly. The plaintiff testified she had not been paid the money for which she was suing, and that the deceased left no lineal descendants. The Kansas statute already mentioned was introduced, and there was expert testimony concerning the reasonable value of the legal services of her attorneys. The appellant showed that the administrator and the heirs, through the administrator, had signified to the appellant surety their objections to the widow's receiving the whole personal estate. Much of the evidence offered by the appellant was excluded by the court, but it cannot be noticed, as no error in that regard is saved for review on this appeal.

1 (a) Appellant's most sweeping contention is that the circuit court had no jurisdiction of the action. It is urged on the theory that the probate court's order approving the administrator's final settlement was nugatory and void, in so far as the same purported to be an order of distribution; and that, until the probate court determined the disputed question of the widow's interest in the personal estate by a proper order of final destribution, jurisdiction over the administration remained exclusively in the probate court, and could not be transferred to the circuit court by a suit on the administrator's bond. Under the facts of this case, the direction in the order that the administrator pay over the balance in his hands to the parties entitled thereto is, as the appellant contends, either indefinite and meaningless, or else an attempt to invest the administrator with judicial discretion to determine the proper distributees and the amount of their interests. In either case it would be void. 24 C. J. § 1389, p. 523; 3 Woerner, the American Law of Administration (3d Ed.) § 562, p. 1911; 4 Schouler on Wills, Executors and Administrators (6th Ed.) § 3426, p. 2760. This was intimated in Morehouse v. Ware, 78 Mo. 100, 101, 103.

(b) Nevertheless, that part of the...

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