Troll v. Third Nat. Bank of St. Louis

• Citation: 278 Mo. 74,211 S.W. 545
• Parties: TROLL v. THIRD NAT. BANK OF ST. LOUIS.
• Decision Date: 07 April 1919
• Court: United States State Supreme Court of Missouri

211 S.W. 545

278 Mo. 74

TROLL v. THIRD NAT. BANK OF ST. LOUIS.

Supreme Court of Missouri, in Banc.

April 7, 1919.

Rehearing Denied April 26, 1919.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Harry Troll, Public Administrator in charge of the Estate of Lucia M. Laird, against the Third National Bank of St. Louis. From a judgment sustaining a demurrer to the plaintiff's petition, the plaintiff appeals. Judgment reversed, and cause remanded.

Marshall & Henderson, of St. Louis, for appellant.

Thos. F. Galt, of St Louis, for respondent.

GRAVES, J.

The trial court sustained a demurrer to plaintiff's petition. Both petition and demurrer are short, but they go to the vitals of the case, and are material. The petition reads:

"Plaintiff states that he is, and at all the times hereinafter stated was, the duly elected and qualified public administrator of the city of St. Louis; that the defendant is, and at all the times hereafter stated was, a corporation duly organized under the acts of Congress of the United States as a national bank, having its domicile and residence and principal place of business in the city of St. Louis, and authorized by said act of Congress and by its charter to do a general banking business in the city of St. Louis; that during her lifetime, and at the time of her death, which occurred on September 9, 1909, Lucia M. Laird was the owner of thirty-three (33) shares of the capital stock of the defendant corporation of the par value of one hundred ($100) dollars each, but which was of greater real or marked value than the par value, which plaintiff alleges upon information and belief to be of the value of three hundred and twenty-five ($325.00) dollars a share, and that as such owner of said stock said Lucia M. Laird was, and her estate now is, entitled to share in the earnings and profits of the defendant; that said stock ownership was evidenced by a certificate of stock, numbered, to wit, 5334, issued by defendant to said Lucia M. Laird; that said Lucia M. Laird at and prior to her death was a resident of the state of Illinois, and had her domicile at the city of Alton, Ill., and at the date of her death had the certificate aforesaid in her possession at her said domicile; that said Lucia M. Laird died at her said domicile on, to wit, September 9, 1909, testate, leaving valuable property in the state of Illinois, which is now being administered upon in said state by her executrix, and that said executrix has in her possession the certificate of stock evidencing the right of said Lucia M. Laird to share in the capital, earnings, and profits of defendant aforesaid, but plaintiff alleges that the situs of the property, right, and asset aforesaid was and is in St. Louis, Mo., and was and is an asset of the estate of said Lucia M. Laird in the state of Missouri and in the city of St. Louis, and can only be administered upon in the city of St. Louis, and never was assets of said estate in the state of Illinois; that on, to wit, June 1, 1910, plaintiff as such public administrator took charge of and duly appointed and qualified as ancillary administrator of the estate of said Lucia M. Laird in the city of St. Louis, Mo., and has ever since been and is now proceeding to administer upon the said estate; that the title to the said thirty-three (33) shares of stock in the defendant corporation and the right to share in the capital, earnings, profits, and dividends thereon of the defendant corporation passed to and vested exclusively in plaintiff as such ancillary administrator, on the death of said Lucia M. Laird on September 9, 1909; that immediately upon becoming such ancillary administrator and taking charge of said estate plaintiff notified defendant of such fact, and defendant agreed to recognize and treat plaintiff as such, and to pay plaintiff all dividends on said stock and to send to plaintiff all notices of stockholders' meetings, etc.; that heretofore plaintiff has demanded of defendant that it issue to him as such ancillary administrator a certificate evidencing the ownership a said thirty-three (33) shares of stock of defendant corporation, but that defendant has failed and refused and still fails and refuses so to de'; that since September 1909, the defendant has declared dividends, upon the stock of said corporation, aggregating large sums, the exact amount of which plaintiff cannot state, but which plaintiff states upon information and belief to consist of two dividends of 4 per cent. each, upon the capital stock of defendant corporation, and which plaintiff has demanded from defendant, but defendant has failed and refused, and still fails and refuses, to account for or pay to plaintiff.

"Wherefore plaintiff prays that the defendant be ordered, adjudged, and decreed to disclose and state, but not under oath, an oath being expressly waived, how much, and when, if any, dividends have been declared by it on the capital stock of defendant since September 9, 1909; that defendant be ordered, adjudged, and decreed to issue and deliver to plaintiff as such ancillary administrator of the estate of Lucia M. Laird, deceased, a certificate for thirty-three (33) shares of the capital stock of the defendant corporation, and to pay over to plaintiff all dividends that have been declared by defendant on said stock and properly applicable thereto since September 9, 1909; and that plaintiff have judgment for costs herein; and for such other and further orders and decrees as may be right and proper, and as to the court may seem fit and proper, and for general relief, and plaintiff will ever pray."

The demurrer is in a way a general one, and reads:

"The demurrer to the petition is as follows (omitting caption): Now comes the defendant in the above-entitled cause, and demurs to the petition herein filed by the plaintiff, for the reason that the said petition does not state facts sufficient to constitute a cause of action, and for the further reason that the petition shows that the plaintiff is not entitled to the relief prayed for, and for the further reason that the petition shows, upon its face, that the plaintiff is not entitled to administer upon the estate of Lucia M. Laird."

The whole case turns upon these pleadings. What plaintiff avers as to the facts stands confessed by the demurrer.

I. The pleadings are fully set out in the statement, to the end that the exact status might appear. The demurrer is not what we would call a general demurrer, because it covers at least two of the recognized grounds of demurrer in our statute. Section 1800, R. S. 1909. The statute gives seven grounds for demurrer. The second one reads:

"Or, second, that the plaintiff has not legal capacity to sue."

This ground is clearly covered by the last allegation of the demurrer. The sixth ground of demurrer as found in the statute, supra, reads:

"Or, sixth, that the petition does not state facts sufficient to constitute a cause of action."

This ground is clearly covered by the demurrer in this case. There is added in the demurrer before us this language:

"And for the further reason that the petition shows that plaintiff is not entitled to the relief prayed for."

This, we take it, is but another method of stating that the petition does not state a cause of action. So that to summarize the issues, as made by the pleadings, the petition is challenged: (1) Because it fails to state facts sufficient to constitute a cause of action; and (2) because plaintiff has not legal capacity to sue.

These, however, are broad enough to raise several questions, and those we will take in such order as will best subserve brevity of opinion.

II. First as to plaintiff's capacity to sue: The petition avers that plaintiff is the public administrator of the city of St. Louis. This fact stands admitted by the demurrer, as do all other well-pleaded facts. The petition further alleges that plaintiff as such public administrator "took charge of and duly appointed and qualified as ancillary administrator * * * and is now proceeding to administer upon the said estate." These facts stand admitted by the demurrer, so that if the other facts pleaded do not show that there was no estate to be thus administered upon, in the manner stated above, i. e., as...