Turner v. Campbell

• Decision Date: 19 March 1907
• Citation: 124 Mo. App. 133,101 S.W. 119
• Parties: TURNER v. CAMPBELL.
• Court: Missouri Court of Appeals

101 S.W. 119

124 Mo. A. 133

TURNER v. CAMPBELL.

St. Louis Court of Appeals. Missouri.

March 19, 1907.

1. EXECUTORS AND ADMINISTRATORS — LETTERS TESTAMENTARY — CONDITIONS PRECEDENT.

In the absence of a statutory provision on the subject, there is no positive rule of law that an estate must be of a given value as a condition precedent to the granting of letters testamentary.

2. SAME — ANCILLARY ADMINISTRATION — PROPERTY OF NONRESIDENT DECEDENT IN THE STATE.

A deed executed by a resident of Ohio was not delivered until after his death, when, in order to make the title good, his children executed another deed to a third party who conveyed to the purchaser on payment of the price, and after paying a mortgage on the property returned with the balance of the proceeds to this state. While on a visit here decedent, who had incurred debts for medical attendance, left two trunks and a small valise, the contents of which were not shown, and a small sum of money. Held, that an administrator on decedent's estate was properly appointed in this state with authority to collect the balance of the purchase money from such third party.

Appeal from Louisiana Court of Common Pleas, David H. Eby, Judge.

Proceedings by N. V. Turner to remove E. E. Campbell as administrator, etc. From a judgment denying the relief prayed, petitioner appeals. Affirmed.

Ball & Sparrow, for appellant.

GOODE, J.

This is a proceeding to remove E. E. Campbell as administrator of the estate of Joseph Edwards, deceased. The deceased resided in the state of Ohio, but had two children living in the city of Louisiana, Pike county, Mo. Early in October, 1903, he and his wife came to Missouri to visit their children. Mrs. Edwards died in Pike county in January, 1904, and within two or three weeks her husband, Joseph Edwards, died there also. Prior to his death he had agreed to sell a house and lot he owned in Ohio to Mrs. Annie Murray for $425. The property was subject to a mortgage to be paid out of that fund. A lawyer by the name of Donavan, who resided in Ohio and was acting as attorney for Mrs. Murray, drew up a deed and sent it to Edwards to sign. This was after the death of Mrs. Edwards. About two weeks before he died Edwards executed the deed and returned it to Donavan, but it did not pass into the hands of Mrs. Murray, the purchaser, until after Edwards had died. Donavan questioned the validity of the deed under those circumstances, because the purchase money had not been paid to Edwards, and in consequence the children and heirs of Joseph Edwards executed a deed to the property to their friend, N. V. Turner, the appellant, so that he might make a transfer of it and collect the purchase money. In his testimony Turner spoke of the deed from the heirs to him as a power of attorney; but though it was given for the purpose of enabling him to represent them in conveying the property in a manner satisfactory to Mrs. Murray, and to collect the purchase money from her, it was an ordinary warranty deed. The deed to Turner was made in Ohio, whither he and the children of the deceased had taken the body of Mr. Edwards. While there they attempted to finish the transaction with Mrs. Murray, and Donavan's objection to the deed of the deceased was raised. Turner conveyed the property to Mrs. Murray for the original price of $425, paid off the mortgage, and returned to Louisiana with the balance of the money. He had defrayed the funeral expenses of Mr. and Mrs. Edwards, thereby becoming a creditor of the estate of the deceased. Edwards owed debts in Louisiana for medical attendance and other things, and on the 17th of May, 1905, a year and four months after his death, the probate court appointed Campbell administrator of his estate. Six days afterwards, Turner, as a creditor of the estate, filed a motion in the probate court to revoke the letters of administration. The court refused to revoke them, and the same ruling was made in the court of common pleas on appeal. The appeal to this court was from the judgment of the court of common pleas. Several reasons are assigned why Campbell should be removed, but the only one pressed is that the deceased left no property in Pike county to be administered and, therefore, the probate court had no authority to grant letters to Campbell, or any one else. Turner swore the deed to him was executed by the heirs to enable him to settle the estate; that he collected the proceeds of the house and lot from Mrs. Murray, and held the money as representative of the estate of Joseph Edwards and was willing to settle at any time. One of the daughters swore the heirs assigned everything to Turner to give him the legal right to settle the estate. This evidence makes clear the capacity in which Turner claimed to hold the proceeds arising from the sale of the property to Mrs. Murray.

It is difficult to conceive any theory on which Turner would have the right, either as a creditor of the estate or as a trustee of money belonging to it, to move to vacate the administration, unless the grant of letters to Campbell was absolutely void. In that case he might be interested in either capacity; because, perchance, the payment of what he owed to Campbell might not be a bar to the collection of the debt by some administrator acting under a valid appointment, while as a creditor he would be interested in preventing the estate from being involved in a void adminstration. The question then before us is whether or not the grant of letters to Campbell was void for lack of jurisdiction in the probate court. As said, its jurisdiction is attacked on the assumption that Joseph Edwards left no assets in Pike county at his death, and that administration of the estate of a nonresident can only be granted by a probate court in Missouri when, at the death of the nonresident, there were assets belonging to him in the county. The testimony showed beyond dispute that Joseph Edwards left some property in Pike county when he died. He brought with him to Missouri two trunks and a telescope valise, and these and their contents were left. What their contents were was not shown. He also left a small amount of money. How much no one knows as yet, but his daughter said it was "pocket change." It is evident that the motion to vacate the administration cannot be sustained at present on the score of want of assets. It was filed six days after the grant of letters and before an inventory had been taken to disclose what assets the decedent had left, and that was not shown by other proof. While it is not probable that the money left and the trunks and valise and their contents were of considerable value, what their value was remained unknown at the date the motion was filed. Our statutes permit the probate court to refuse letters of administration when the estate will not exceed the allowance of the widow, widower, or minor children. Rev. St. 1899, § 2 [Ann. St. 1906, p. 338]. But as this deceased left no widow or minor children, said section is inapplicable. Possibly administration may be refused if it is apparent that its cost will be greater than the value of the estate. As to this we do not say, because, as suggested, it is impossible to state what is the value of the assets left by the deceased. In the absence of a statutory provision on the subject, there is no positive rule of law that an estate must be of a given value, as a condition precedent to the grant of letters testamentary. 11 Am. & Eng. Ency. Law (2d Ed.) 744; 18 Cyc. 71; Pinney v. McGregory, 102 Mass. 186. We find no cause to reverse the action taken by the court below on appellant's motion.

The real purpose of the proceeding is to prevent the administrator fom taking steps to collect from Turner the proceeds of the Ohio property, in order to administer it for the benefit of Missouri creditors, and the brief of appellant has assumed that no other property of the estate, except the money held by Turner, is in Pike county, and that this money did not constitute assets justifying the appointment of an administrator because it was not left there by Edwards at his death. As we have seen, the assumption that there was no other property in Pike county is unwarranted, as Edwards left property there to be administered; or if, in fact, too small to render an administration expedient, sufficient to prevent a recall of the letters until its value is ascertained. Nevertheless if appellant's contention is correct, that the money held by Turner was not assets to warrant an administration, it might follow logically that if a local administration was maintained on account of other assets, this money could not be subject to said administration, and to save further controversy over the matter it is proper to determine the question. Our statutes regarding the administration of estates of nonresidents do not specify the contingencies which will authorize the granting of letters on such estates. There is no doubt that if a nonresident decedent leaves assets in a county in this state, a local administration is valid. But a doubt is raised as to whether this can be done if he leaves no assets, but property of his is subsequently brought into the county. The earlier decisions inclined against the validity of an administration in the latter contingency, but in every instance the real effect of the decision is to be determined by the statute construed. The proposition is generally maintained that an ancillary administration (i. e., one away from the domicile) is void if there are no local assets. Peters v. Peters, 8 Cush. (Mass.) 543; Thayer v. Winchester, 133 Mass. 447; Crosby v. Leavitt, 4 Allen (Mass.) 410; Pinney v. McGregory, supra; King's Case, 27 Ct. Cl. (U. S.) 529; Wyman v. Halstead, 109 U. S. 654, 3 Sup. Ct. 417, 27 L. Ed. 1068; Jeffersonville, etc., R. R. v. Swayne's Adm'r, 26 Ind. 477. It is also the law that ancillary administration may be granted before the primary administration is, but that it will extend only to...