Union Trust Co. v. Soderer

• Decision Date: 18 February 1903
• Citation: 171 Mo. 675,72 S.W. 499
• Parties: UNION TRUST CO. v. SODERER et al.
• Court: Missouri Supreme Court

72 S.W. 499

171 Mo. 675

UNION TRUST CO. v. SODERER et al.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

ADMINISTRATOR PENDENTE LITE—RIGHT TO POSSESSION OF REALTY.

1. A petition in an action by an administrator to recover personalty from the heirs of decedent, which does not describe the personalty, is fatally defective.

2. Under Rev. St. 1899, § 13, declaring that, if the validity of a will be contested, letters of administration shall be granted during the time of such contest to some other person who shall take charge of the property, etc., an administrator pendente lite during such contest has no right to possession of the real estate owned by decedent at the time of his death, unless the probate court so orders, or the property is needed to pay debts.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by the Union Trust Company, as administrator pendente lite of Alois Soderer, against Caroline Soderer and others. From a judgment for defendants, plaintiff appeals. Affirmed.

During a contest of the alleged will of Alois Soderer, the plaintiff was appointed by the probate court administrator pendente lite of the estate. This suit was begun in the circuit court by the plaintiff in that capacity to recover of the defendants personal property and real estate which the petition alleges belonged to the estate and came into the hands of defendants as trustees under the will. The petition alleges that personal property of the value of $5,800, belonging to the estate, was turned over to the defendants by the executrix before the plaintiff's appointment as administrator p. l., and is now held by them, and also several parcels of real estate, which are rented, and from which the defendants are collecting rents to the amount of $1,000 a month; that defendants claim the right to hold this personal property and real estate, and collect their rents, by virtue of the will, under which they are appointed trustees; that plaintiff has demanded possession of the personal property and real estate, and an account of the rents collected, but defendants have refused to render the same. The prayer is for a decree for possession, an accounting, an injunction from interfering with plaintiff's management of the estate, etc. Defendants demurred to the petition. The court sustained the demurrer, and plaintiff declined to plead further. There was a final judgment for defendants, and the plaintiff appeals.

Joseph W. Lewis, for appellant. H. A. Loevy and Geo. W. Lubke, for respondents.

VALLIANT, J. (after stating the facts).

The plaintiff is, of course, entitled to possession of all the personal property belonging to the estate. The petition alleges that before the plaintiff's appointment the executrix turned over to the defendants personal property belonging to the estate to the value of $5,800, and that defendants still hold the same. But the petition does not state of what that personalty consisted, and therefore there is no issue tendered as to personal property. There could be no valid judgment against the defendants for personal property when the property is not described, and there could be no description in the judgment if there is none in the petition. It was not error, therefore, to sustain the demurrer to the petition regarding it as a demand for personal property.

The main point in dispute, however, as we judge from the briefs before us, is as to the right of the administrator pendente lite to the possession of the real estate owned by the deceased at the time of his death. All our law on the subject of the office of administrator pendente lite is contained in the following statute (Section 13, Rev. St. 1899): "If the validity of a will be contested, or the executor be a minor or absent from the state, letters of administration shall be granted during the time of such contest, minority or absence to some other person, who shall take charge of the property, and administer the same according to law, under the discretion of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator, when qualified to act." The commission that that statute authorizes to be issued is "letters of administration." Those letters are to be issued by the probate court. The duties of the person to whom the letters are issued are to take charge of the property, and...