The State ex rel. Gott v. Fidelity & Deposit Co. of Maryland

• Decision Date: 16 September 1927
• Docket Number: 25947
• Citation: 298 S.W. 83,317 Mo. 1078
• Parties: The State ex rel. Effie C. Gott v. Fidelity & Deposit Company of Maryland, Appellant
• Court: Missouri Supreme Court

298 S.W. 83

317 Mo. 1078

The State ex rel. Effie C. Gott v. Fidelity & Deposit Company of Maryland, Appellant

No. 25947

Supreme Court of Missouri

September 16, 1927

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded (with directions).

R. E Ball, Joseph A. Guthrie, Caleb S. Monroe and S. L. Mathews for appellant.

(1) The order of the probate court by which it attempted to direct distribution of the money and personal property of the estate, being without written or published notice to all the parties interested and not being made at the first semi-annual or the final settlement was coram non judice. R. S. 1919, sec. 241, Amended, Laws 1921, p 115; State ex rel. Brouse v. Burnes, 129 Mo.App. 474; Lilly v. Menke, 126 Mo. 190; Baker v. Lumpee, 91 Mo.App. 560. (2) After hearing the application for distribution on November 9, 1921, and taking the same under advisement, Judge Estill, during the September term, 1921, failed or refused to act further and another special judge was elected. This refusal on his part was tantamount to his resignation or death. Sec. 2566, R. S. 1919; State v. Silva, 130 Mo. 440; State v. Higgerson, 110 Mo. 213; Viertel v. Viertel, 212 Mo. 562. His powers will be closely scrutinized and strictly construed. Autenrieth v. Railroad, 271 Mo. 248, 196 S.W. 1129. He cannot become a de facto judge. Ex parte Fish, 184 S.W. 479. (3) Under the pleadings and the evidence there was no question of vexatious refusal to pay by the defendant to be submitted to the jury. (a) Because the petition alleges no facts of vexatious refusal, but simply the conclusion of the plaintiff. Dolph v. Maryland Casualty Co., 303 Mo. 534. (b) Because the question of law involved, i.e. the force of the order of the probate court, was one about which lawyers might honestly differ. Mound City Roofing Co. v. Ins. Co., 218 Mo.App. 395; State ex rel. Ins. Co. v. Allen, 295 Mo. 307. (c) Because there was no evidence in the case other than to show that defendant's refusal to pay and the defense of this action was in good faith. Aufrichtig v. Life Ins. Co., 298 Mo. 1; Berryman v. Surety Co., 285 Mo. 379; Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. 399; Kusnutzky v. Security Ins. Co., 281 S.W. 47; State ex rel. v. Allen, 306 Mo. 197; Campbell v. Fire Ins. Co., 269 S.W. 645. (4) The obligation sued upon is a statutory bond. The right of action is created by statute and not by contract. The amount of the recovery is provided by statute. The action, therefore, is not one to recover a loss under a policy of insurance within the meaning of Sec. 6337, R. S. 1919, and no penalties can be assessed. Secs. 17, 18, 280, 1002, 1018, 1005, 1006, 1030, 1031, 1034, 1035, 1008, 1011, 1013, 1014, 1016, 1017, R. S. 1919. Sec. 6337, R. S. 1919, is highly penal and must be so construed. Mears Mining Co. v. Casualty Co., 162 Mo.App. 178. (5) It is only in cases where the sole duty remains upon the administrator to pay a legacy and he fails so to do, that an action can be maintained without waiting for an order of the probate court. Clark v. Sinks, 144 Mo. 451. (6) The granting of letters of administration upon the estate of Thomas A. Mathews was not an adjudication by the court that he was a resident of Kansas. Letters of administration were granted in the estate upon the application which inadvertently recited that deceased was a resident of Kansas, and plaintiff now urges that such order is res adjudicata of his residence in such State. In support of that contention counsel cite cases where attempts were made to attack the validity of such judgments collaterally, by showing the nonexistence of some fact essential to the vesting of the jurisdiction. The deceased, being admittedly owner of real estate in Missouri, the Probate Court of Jackson County, under the provisions of Sec. 4, R.S. 1919, had jurisdiction to grant the letters applied for, provided it found either one of two facts: first, that the deceased had a mansion house or place of abode in Jackson County; or, second, that the deceased had no mansion house or place of abode, and that his lands, or the greater part thereof, lies in Jackson County. A judgment, unless rendered in a former action between the same parties upon the same cause of action, is not res adjudicata as to every fact that might have been determined at the hearing. 34 C. J. 927, sec. 1332; Ridgley v. Stillwell, 27 Mo. 132; Thormann v. Frame, 176 U.S. 350; Dickey v. Heim, 48 Mo.App. 114; American Paper Products Co. v. Aetna Life Ins. Co., 204 Mo.App. 527. That "res adjudicata is an affirmative defense, and like all other defenses of that character must be pleaded" is a rule of practice firmly established in this State. Kilpatrick v. Robert, 278 Mo. 257. (7) In the collection and preservation of the estate, the administrator unquestionably represents all the heirs. But when the time comes to distribute, the administrator is no longer acting for them, but is dealing with them. They become adverse parties in this transaction, and in recognition of that fact such an order made without notice to them, though acted upon by the administrator, is coram non judice. State ex rel. v. Burnes, 129 Mo.App. 474. (a) The recital of the appearance of the parties cannot avail the plaintiff in this case. Bell v. Brinkman, 123 Mo. 276; Little v. Browning, 287 Mo. 278. (8) Defendant contends that the circuit court was without jurisdiction to try this case, because, aside from the void finding of April 26, 1922, there had been no determination by the probate court as to the share of any distributee.

A. E. Watson, Daniel C. Ketchum and Hubert Lardner for respondent.

(1) The judgment of the probate court on the application for and the granting of letters of administration conclusively determined the residence of deceased at the time of his death and is impervious to collateral attack. Citizens Bank v. Moore, 215 Mo.App. 21; Wyatt v. Wilhite, 192 Mo.App. 551; Johnson v. Beazley, 65 Mo. 264; Cox v. Boyce, 152 Mo. 576; In re Estate of Davison, 100 Mo.App. 268; State v. Schenkel, 129 Mo.App. 241; State ex rel. Holthaus v. Holtcamp, 277 S.W. 607; Linder v. Burns, 243 S.W. 364; State ex rel. v. Mills, 231 Mo. 493; Sullinger v. West, 211 S.W. 65. (2) The question of residence of decedent is further concluded by judgment of probate court of April 26, 1922. Viehmann v. Viehmann, 298 Mo. 356; Wilson v. Wilson, 255 Mo. 528; Hart v. Petty, 266 Mo. 296; Oldaker v. Spiking, 210 S.W. 62; Sisk v. Wilkinson, 305 Mo. 328; State ex rel. v. Mills, 231 Mo. 493. (3) The judgment of probate court of April 26, 1922, is not void for any of the reasons urged against it. (a) Application for partial distribution may be made at any time when settlement shows there is sufficient money to satisfy all demands against the estate. Sec. 237, R. S. 1919; State v. Reynolds, 286 Mo. 126. (b) The record of trial recites appearance of all parties and cannot be controverted by extraneous evidence. Sisk v. Wilkinson, 305 Mo. 328; Conway v. Robinson, 178 S.W. 154; Herman v. Bank, 291 S.W. 156. (c) No notice was required. The application for partial distribution was made by administrator on behalf of all persons who could be interested except the widow and she appeared and contested said application. Sec. 241, R. S. 1919, Amended, Laws 1921, p. 115. (d) The widow was the sole distributee and the only one entitled to notice under the statute. Sec. 241, R. S. 1919. (e) If notice was necessary it was the duty of administrator to give same and he cannot urge his neglect as a defense. Harter v. Petty, 266 Mo. 296. (4) Judge Estill did not lose jurisdiction by taking cause under advisement and not rendering judgment until April 26, 1922. Laws 1921, p. 254; Petet v. McClanahan, 297 Mo. 677; State ex rel. v. Williams, 136 Mo.App. 330; Bank v. Graham, 147 Mo. 250; State v. Sneed, 91 Mo. 552; Mengel v. Leach, 226 S.W. 883; Lambert v. Lambert, 208 S.W. 118; R. S. 1919, secs. 2445, 2563 to 2566; State v. Gamble, 108 Mo. 500, in re oath. (5) The question of vexatious refusal to pay was properly submitted to the jury. State ex rel. v. Bonding & Surety Co., 279 Mo. 535; Fay v. Life Ins. Co., 187 S.W. 866; Niese Grocer Co. v. Bonding Co., 259 S.W. 852; Johnston v. Fid. & Deposit Co., 275 S.W. 973; Block v. Fid. & Guar. Co., 290 S.W. 440; School District v. Accident & Liability Co., 234 S.W. 1017. (6) The circuit court had jurisdiction of this cause and it was timely brought. Pound v. Cassity, 166 Mo. 419; State ex rel. v. Dickinson, 213 Mo. 66; State ex rel. v. Reynolds, 226 S.W. 553.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

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 ten 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 $ 1500 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, Revised Statutes 1919, the personal estate of a non-resident decedent descends according to the laws of his domicile, and Section 3842, General Statutes of...