Vastine v. Wilding

• Court: United States State Supreme Court of Missouri
• Citation: 45 Mo. 89
• Parties: JOSEPH P. VASTINE, PUBLIC ADMINISTRATOR, Respondent, v. PETER WILDING, Appellant.
• Decision Date: 31 October 1869

45 Mo. 89

JOSEPH P. VASTINE, PUBLIC ADMINISTRATOR, Respondent,
v.
PETER WILDING, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Lackland, Martin & Lackland, for appellant, cited Simonds v. Oliver, 23 Mo. 32; 2 Greenl. Ev. 34; McEwan v. Portland, 1 Oregon, 300; Entriken v. Brown, 32 Penn. St. 364; Goodwin v. Garrison, 8 Cal. 615; 21 Barb. 333; Millay v. Butts, 35 Maine, 139; 2 Pars. Notes and Bills, 438, 480; King v. Wilson, 2 Doug. Eng. Rep. 633; Dugan v. U. S., 3 Wheat. 172; Dollfus v. Frosch, 1 Denio, 367; Mattram v. Mills, 1 Sandf. 37; Boeka v. Nuella, 28 Mo. 180; Lewis v. Bowers' Adm'r, 29 Mo. 203; Willard v. Moies, 30 Mo. 142.

[45 Mo. 90]

Bland & Thornton, for respondent, cited Armory v. Delamirie, 1 Strange, 505; Magee v. Scott, 9 Cush. 150; Millay v. Butts, 35 Maine, 139; Smith v. Dean, 19 Mo. 63; Hastings v. McKinley, 1 E. D. Smith, 277; Billings v. Jayne, 11 Barb. 620; Chitty on Bills, 204; Billy Jones v. Witter, 13 Mass. 305; Newman v. Lawless, 6 Mo. 301; Finney et al. v. Allen, 7 Mo. 419; Vaulx v. Campbell's Ex'r, 8 Mo. 227; Johnson v. Arundel, 34 Mo. 338.

CURRIER, Judge, delivered the opinion of the court.

This proceeding was instituted under the statute (Gen. Stat. 1865, ch. 128, §§ 17, 18) to recover possession of a certificate of deposit issued by the United States Savings Institution of St. Louis to August Berger, deceased. It was unindorsed, and reads as follows:

“ST. LOUIS, Mo., March 12, 1866.

August Berger has deposited in this office $1,000, payable to the order of himself on the return of this certificate, six months after date, with interest at the rate of five per cent. per annum.”

Berger died, and the plaintiff, as public administrator, took charge of his estate. The plaintiff had no knowledge of the certificate of deposit sued for until it was brought to him by the defendant, who solicited his assistance in collecting it, the bank having refused to pay it without the indorsement of Berger's administrator. The certificate had been found among the papers of Lewis Chrisner by his administratrix. Chrisner died in Belleville, Illinois, May 6, 1867. His administratrix delivered the papers to the defendant for the purpose of collection. How it came among Chrisner's papers in no way appeared, nor was there any testimony tending to throw any light upon the question of its ownership beyond what appears upon its face, and the fact of its possession by Chrisner. The plaintiff demanded possession of it as belonging to the estate of Berger; but the defendant refused to surrender the possession, claiming to hold the certificate as the property of Chrisner's estate. Upon this refusal the present proceedings were instituted.

[45 Mo. 91]

If the title and ownership of the certificate and the fund it represented were in the plaintiff, as Berger's administrator, at the time of the demand, the defendant's subsequent possession, in opposition and hostility to the plaintiff's right, was, in the sense of the statute, unlawful, and warranted this suit. The real and substantial question for consideration, therefore, is this: Whose was that certificate of deposit? Was the title in the administrator of Berger, or was it in the administratrix of Chrisner?

The certificate itself establishes beyond controversy the fact that Berger was its original owner; that he deposited the fund, and, as evidence of his title, took a certificate of deposit payable to his...