Tittman v. Thornton

• Decision Date: 07 December 1891
• Citation: 107 Mo. 500,17 S.W. 979
• Court: Missouri Supreme Court
• Parties: TITTMAN v. THORNTON et al.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 979

107 Mo. 500

TITTMAN v. THORNTON et al.¹

Supreme Court of Missouri, Division No. 1.

December 7, 1891.

ACTION BY FOREIGN ADMINISTRATORS — PARTIES — DOCUMENTARY EVIDENCE — AUTHENTICATION OF RECORDS — INSOLVENCY — EVIDENCE — NEW TRIAL.

1. A foreign administrator, who has obtained judgment in his own name in the state in which he was appointed upon a debt due to him as administrator, may bring suit on such judgment in Missouri, in his own name, as the trustee of an express trust.

2. Upon the death of such administrator pending such second suit the suit may be revived in the name of his administrator.

3. A bill of sale assigning the income of a trust fund located in Missouri is not admissible in evidence in a Missouri court without proof of its execution, although it has been acknowledged and recorded in Iowa, under a statute which validates the acknowledgments of recorded instruments, there being no Missouri statute authorizing the acknowledgment of such an instrument.

4. The transcript of a will showed that it had been probated in a circuit court in Iowa. To the transcript was attached a certificate of the clerk of the district court of that county, showing that the transcript was a true copy of the record in his office, a certificate of the judge of the district court to the effect that the clerk's certificate was in due form, a certificate of the clerk authenticating the judge's signature, and a further certificate of the clerk stating that the circuit court had been abolished, and its records transferred to the district court. Held, that the transcript was sufficiently authenticated to entitle it to admission in evidence in another state under the laws of congress.

5. In an equitable proceeding to subject an insolvent debtor's equitable effects to the payment of a judgment against him, evidence that he is a non-resident; that he owns a homestead, on which he resides, and a cow or two, and the equitable assets referred to; and that his attorney and another witness, who has known him for 30 years, do not know of any other property owned by him, — is sufficient proof of insolvency to sustain the suit.

6. Surprise, occasioned by the exclusion from evidence of a written instrument for want of proof of execution, is no ground for a new trial, since the neglect to provide such proof is laches.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Suit by Michael Carroll against John Thornton, Peter Richard Kenrick, and Michael Duggan. Plaintiff having died pending suit, his administrator, Eugene C. Tittman, was substituted as plaintiff. Plaintiff obtained judgment. Defendants appeal. Affirmed.

A. J. P. & E. A. B. Garesché, for appellant. Edw. Cunningham, Jr., for respondent.

BLACK, J.

This was a suit in equity, brought by Michael Carroll against John Thornton and others to subject certain funds in the hands of Archbishop Kenrick, belonging to Thornton, to the payment of a judgment which Carroll recovered against Thornton in the state of Iowa. The following are the principal facts: Michael Carroll recovered a judgment against John Thornton in the circuit court of Dubuque county, Iowa, on the 16th June, 1881, for the sum of $4,499. The pleadings in that case show that the cause was carried on in the name of Michael Carroll, as if it had been a suit in his own right; but it appears from the body of the petition that the cause of action was based upon an indebtedness of Thornton as guardian of his ward, John Carroll. An amendment to the petition states that Michael Carroll was the administrator of the estate of John Carroll. In May, 1886, Michael Carroll commenced this suit in this state against John Thornton and Peter Richard Kenrick. The petition, among other things, sets up the Iowa judgment as one recovered by Michael Carroll in his own right. It is alleged that another John Thornton, at the city of St. Louis, the uncle of the defendant Thornton, bequeathed to the defendant Kenrick the sum of $20,000, in trust to pay to defendant Thornton the interest thereon during his life, and prays that Kenrick, the trustee, be decreed to pay to the plaintiff the interest then accrued and thereafter to accrue on said fund until the judgment so recovered by the plaintiff in Iowa should be satisfied. Thornton, having been notified by publication, appeared, and by his answer disclaimed any interest in the fund, and on the suggestion of Kenrick one Duggan was made a defendant. Duggan, by his answer, claims to be the owner of the income accrued and to accrue on said fund by virtue of an assignment of the same by Thornton to May Thornton, and a bequest of the same by her to him. The plaintiff died while this cause was pending in the circuit court, and by consent of the defendants it was revived in the same of Tittman, public administrator, having in charge the estate of Michael Carroll. The circuit court found the issue for the plaintiff, and entered a decree as prayed for, and the defendants appealed.

1. The first complaint is that the circuit court erred in admitting in evidence the transcript of the Iowa judgment. The objections made to the transcript are (1) that it shows a judgment in favor of Michael Carroll as administrator of John Carroll, while the petition declares upon a judgment in favor of Michael Carroll in his own right; (2) that this cause should have been revived in the name of the representative of John Carroll, and not in the name of the administrator of Michael Carroll. Looking to the judgment only as it appears in the transcript, it is one in favor of Michael Carroll in his own right. Still the transcript as a whole shows that he recovered the same in the capacity of administrator of John Carroll, and we shall treat it as a judgment in favor of Michael Carroll as administrator of John Carroll. It has been held by this court on several occasions that when one takes a note, payable to himself as executor or administrator, he may sue upon the note in his own name, and that a suit may be maintained thereon by his executor or administrator. Rittenhouse v. Ammerman, 64 Mo. 197; Cook's Ex'r v. Holmes, 29 Mo. 61; Block v. Dorman, 51 Mo. 31. The theory of these cases is that when one takes a note or other obligation payable to himself as executor or administrator, he thereby makes himself a trustee of an express trust, and under the Code may sue thereon in his own name. Should such a person die, resign his letters of administration, or be removed, and the note or other obligation be turned over to the administrator de bonis non, the latter may, of course, sue thereon. But there are many cases where the suit may be maintained either by the trustee or by the beneficiary. Mosman v. Bender, 80 Mo. 579; Chouteau v. Boughton, 100 Mo. 406, 13 S. W. Rep. 877, and cases cited. But here the administrator appointed in Iowa recovered the judgment against the defendant Thornton, and then brought this suit, based on that judgment, in his own name, in this state, and this he had a right to do. Hall v. Harrison, 21 Mo. 227. An administrator who has recovered a judgment in the state where he received his appointment may sue upon the judgment in his own name in a different state. Says Freeman: "There can scarcely be a doubt that a judgment rendered in favor of an administrator so merges the debt that it may be treated as his personal effect, so far as to authorize him to maintain suit thereon in a foreign country without there taking out letters of administration." Freem. Judgm. (3d Ed.) § 217. The following cases are to the same effect: Lewis v. Adams, 70 Cal. 403, 11 Pac. Rep. 833; Rucks v. Taylor, 49 Miss. 552; Barton v. Higgins, 41 Md. 539. Michael Carroll could not prosecute a suit in this state as administrator appointed under the laws of Iowa, but, having recovered a judgment as administrator in that state, he may sue upon the same in this state in his individual capacity. His right to recover here does not depend upon profert of his letters of administration. As he may sue here in his individual capacity, it must follow that the suit may...