State Ex Rel. Nute v. Bruce

I respectfully dissent from the holding in the principal opinion that a suit in the circuit court to establish a demand against the estate of a decedent under our probate law, Section 189, Revised Statutes 1929, is not a local but a transitory action, the venue of which is fixed by Section 720, Revised Statutes 1929. This latter section, in the Code of Civil Procedure, provides actions shall be brought (1) in the county where the defendant resides; (2) in the county where the plaintiff resides and the defendant may be found; (3) where there are several defendants residing in different counties, in any such county. There are still other provisions in the section providing for situations where all or a part of the defendants are nonresidents. If Section 720 is applicable to suits in the circuit court to establish probate demands it results that an executor or administrator defending an action to establish a demand against his estate may be sued in the county where he resides, or in any county in the State where the plaintiff resides and he may be found, or in any county where a codefendant lives, although the administration of the estate is proceeding in the probate court of a different county.

[1] In such actions the estate is the actual party in interest, must foot the bill and pay the costs. That it should, in the contingencies mentioned, be amenable to suit in any of the several counties of the State, rather than in the county of its domicile where the probate administration is actually pending; that it should be made the victim of the peregrinations of its mere representative, the executor and administrator, perhaps traveling about on business of his own — all this seems to me to be harsh and unjust. The statute ought not to be so construed if it is reasonably susceptible of the other and more natural construction. In my opinion Section 5, the special venue statute in Chapter I, Revised Statutes 1929, containing our administration and probate law, applies to suits in the circuit court to establish probate demands as well as to proceedings in the probate court for the same purpose, and both must be brought in the county where the estate is being administered. The two sections, Sections 5 and 189, Revised Statutes 1929, have been in our statutes for 100 years or more. From a procedural standpoint the question here raised is important. It is singular that during a century the point has not been decided and the two statutes construed together.

[2] The part of Section 189, Revised Statutes 1929, on which the holding of the principal opinion is based, is substantially in the same form as when it was first enacted by Revised Statutes 1825, Section 52, page 113, and is as follows:

"Any person having a demand against an estate, may establish the same by the judgment or decree of some court of record, in the ordinary course of proceeding, and exhibit a copy of such judgment or decree, and shall also exhibit copies of all judgments or decrees rendered in the lifetime of the deceased to the probate court . . ." (The part of the section omitted from the above quotation has to do with the allowance of secured claims, and was added by amendment in 1889, Sec. 190, R.S. 1889.)

Section 5, Revised Statutes 1929, with a difference we shall presently note, was first enacted by Revised Statutes 1835, Section 3, page 41, and is now as follows:

"All orders, settlements, trials and other proceedings contemplated by articles one to thirteen, inclusive, of this chapter, shall be had or made in the county in which the letters testamentary or of administration were granted."

Section 5 just quoted is in Article I of Chapter 1, Revised Statutes 1929. Section 189 first above quoted, is in Article VII of the same chapter, that is, it is in one of the thirteen articles designated by Section 5. So, if a suit in the circuit court to establish a demand under Section 189 is a "trial" or "other proceeding" "contemplated" by Article 13, it must be "had or made" in the county where letters testamentary or of administration were granted. I do not see how it can be considered anything else.

As against this view two arguments are made. The first is that Section 5 refers only to such orders, settlements, trials and proceedings as are had or made in the probate court. Looking at Section 5 alone I can see no justification for this contention. The statute plainly says all trials and other proceedings contemplated by the thirteen articles mentioned shall take place in the county of the probate administration. Article VII, containing Section 189, is one of these thirteen articles. Section 5 says nothing which would restrict its application to probate court proceedings. If that is its purpose why should it be enacted at all, since proceedings in the probate court necessarily would have to be in the county where the court is.

But it is asserted, secondly, that Section 189 says any person having a demand against an estate may establish the same by the judgment or decree of some court of record, in the ordinarycourse of proceeding; and the insistence is that this language means any court of record according to the usual course of proceeding — that is, whatever court the action should be brought in under the general venue statute, Section 720 in the Code of Civil Procedure. This section possibly may permit of that construction, but the meaning is not clear enough to justify such interpretation if the statute is hereby brought into conflict with Section 5. "Some court of record" might mean whichever of the several courts of record of the State may happen to be in the county where the administration is pending, and the expression "in the ordinary course of proceeding" may refer to the form of action and signify the same kind of suit as would ordinarily be brought in a court of record on a claim of the nature involved against a living person. It was so construed in Green v. Strother, 201 Mo. App. 418, 422, 212 S.W. 399, 401.

[3] Turning away from the two statutes a minute to the general law, and the decisions thus far rendered in this State touching the subject. The doctrine stated in 24 Corpus Juris, section 1903, page 768, is as follows:

"As a general rule, an executor or administrator cannot sue or be sued in any jurisdiction other than the one in which he was appointed. A personal representative may be sued in the county in which he resides, or where he is found, unless the estate is being administered in another county. It is sometimes required by statute that an action against an executor or administrator should be brought in the county where the estate is being administered, and such a provision has been held to apply to an action against an executor or administrator who is sued together with other defendants who are not representatives of the estate, although it has also been asserted that, when an administrator is a necessary party to an action, he may be sued in any county where any of his codefendants reside."

There are two cases in this State which refer to Section 5. The first is Yarde v. Hines, 209 Mo. App. 547, 238 S.W. 151, decided by the Kansas City Court of Appeals in 1921 and referred to in the principal opinion. I do not think it is in point. It was a suit under the Federal Employers' Liability Act by an administratrix for the wrongful death of her intestate. She was plaintiff, not defendant, and the suit was against the Director General of Railroads. In the course of the opinion the court said:

"It is insisted that the Circuit Court of Jackson County was without jurisdiction over the subject-matter because the suit could be brought only in Macon County where the plaintiff was appointed administratrix. In support of this defendant cites Section 5, Revised Statutes 1919. This statute relates to the administration of estates in the probate court and has nothing to do with suits of this character. This suit was properly brought, under Section 1180, Revised Statutes 1919."

The section mentioned in the quotation, Section 1180, Revised Statutes 1919, was the section in the Code of Civil Procedure fixing the venue for suits against corporations, now Section 723, Revised Statutes 1929. On its facts the case ruled correctly. In a suit by an administratrix as plaintiff the venue of the cause is the same as in any ordinary civil action. It has long been the law that an administrator or representative "is the proper person to bring any kind of civil action" necessary to the collection of a debt due the estate of which he is the legal representative, Cheely's Admr. v. Wells, 33 Mo. 106, 109; and his authority is coextensive with the boundaries of the State, Emmons v. Gordon, 140 Mo. 490, 498, 41 S.W. 998, 1001. But it is not true that Section 5, Revised Statutes 1929 "relates only to the administration of estates in the probate court;" at least it is not confined toproceedings in the probate court. The Court of Appeals evidently momentarily overlooked the fact that further over in the administration law was a section authorizing suits in the circuit court against the estates of decedents.

The other case referring to Section 5, Revised Statutes 1929, is Repetto v. Walton, 313 Mo. 182, 197-8, 281 S.W. 411, 416, decided by Division One of this court in 1926. In that case the widow of the decedent, who was also administratrix of his estate in the city of St. Louis, brought a suit as plaintiff against the defendant Walton and herself in her capacity as executrix. The suit was brought in Montgomery County. It was charged the defendant Walton had acted as her attorney in the administration of her husband's estate in St. Louis and had fraudulently misled her into making a final settlement showing a balance for distribution very much less than actually belonged to the estate. The allegation was that the defendant Walton appropriated the excess funds and used them to pay off encumbrances on land belonging to him in Montgomery County. In the action the plaintiff widow prayed that her final probate settlement in the city of St. Louis be set aside and that a lien be charged on the defendant Walton's lands in Montgomery County in favor of the estate, or the heirs, for the amount of which they had been defrauded.

The circuit court sustained a demurrer to the petition, one assignment of which charged a misjoinder of causes of action, and the plaintiffs appealed. Speaking of the claim of misjoinder this court said Section 1221, Revised Statutes 1919 (Sec. 765, R.S. 1929), requires that causes of action which may be united in the same petition must "`not require different places of trial.'" In this connection the opinion referred to the fact that the action was to set aside a probate settlement and was brought in the court of a county other than that in which the administration was had. As bearing on this proposition the court said:

"Section 5, Revised Statutes 1919, is as follows: `All orders, settlements, trials and other proceedings contemplated by Articles One to Thirteen, inclusive, of this chapter shall be had or made in the county in which the letters testamentary or of administration were granted.'

"Ordinarily, in an action to set aside a final settlement the administrator or executor would be made a defendant.

"`As a general rule, an executor or administrator cannot sue or be sued in any jurisdiction other than the one in which he was appointed. A personal representative may be sued in the county in which he resides, or where he is found, unless the estate is being administered in another county.' [24 C.J., p. 768, sec. 1903.]"

But after having gone into the matter thus extensively, the Repetto case did not decide the question as to whether the case had been brought in the proper venue, the decision passing off on the proposition that the causes of action united in the petition were improperly joined for another reason. So the case cannot be considered an authority though the direct inference of the opinion is that Section 5 of our probate law does apply to suits in the circuit court.

Now turning to Section 189. There are a number of cases holding suits may be brought in the circuit court on demands against the estates of decedents, and it is said the jurisdiction of the circuit and probate courts is "concurrent." Nearly always the facts of the case show the suit was brought in the county where the estate of the decedent was under administration. However, there are three cases which have a bearing. In The Madison County Bank v. Suman, 79 Mo. 527, judgment had been obtained against an administratrix in the Federal court for the Western District of Missouri. The opinion tacitly concedes this judgment was entitled to allowance as a demand against the estate of the administratrix's intestate, and devotes itself entirely to a discussion of other questions. But in Stephens v. Bernays,119 Mo. 143, 147, 24 S.W. 46, 47, it was squarely held that under what is now Section 189 a demand against the estate of a decedent could be established by suit in the Federal court and that the expression "some court of record" in that section is broad enough to cover suits in Federal courts. This decision, however, overlooks the fact that in the opinion of the United States Circuit Court of Appeals affirming the very judgment it was considering jurisdiction to render judgments against the legal representatives of the estates of decedents was asserted wholly independent of any state statute, Stephens v. Bernays, 44 F. 642; and such has long been the law, Byers v. McAuley,149 U.S. 608, 615, 620.

The third case is Wernse v. McPike, Admr., 100 Mo. 476, 13 S.W. 809, decided in 1890. In that case an estate was in course of administration in the Probate Court of Ralls County. The decedent had signed a note along with another maker who resided in St. Louis County. Suit on the note was brought in St. Louis County against both the resident maker and the administrator of the decedent, service on the administrator being obtained in St. Louis County when he happened to be there. It was held by the Supreme Court the Circuit Court of St. Louis County had jurisdiction. However, in none of these three cases is Section 5 of our administration law mentioned or considered.

When Section 5 was first adopted in 1835 probate jurisdiction was lodged in county courts. [R.S. 1835, sec. 15, p. 156.] They had exclusive jurisdiction of demands not exceeding $100 against the estates of decedents and concurrent jurisdiction with "the circuit court" (not courts) above that amount. The form of the statute when passed as Section 3, page 41, Revised Statutes 1835, was as follows (italics ours):

"All orders, settlements, trials and other proceedingsentrusted by this act to the county court, shall be had or made in the county in which the letters testamentary or of administration were granted."

It will be noticed the statute was substantially the same as now except that the trials and proceedings referred to were those entrusted by law to the county court. This would rather tend to bear out the argument of relator mentioned in the beginning of this opinion that Section 5 now covers only trials and proceedings in the probate court.

Jurisdiction of probate matters thus remained generally in the county court for thirty years, through the Revisions of 1845 and 1855, R.S. 1845, sec. 8, p. 92; R.S. 1855, sec. 15, p. 534. And during all that time Section 5 continued in form as when enacted in 1835. [Sec. 4, p. 63, R.S. 1845; Sec. 4, p. 113, R.S. 1855.] Through the period numerous special acts were passed creating probate courts in various counties. Laws 1865-6, page 83, established such courts in twenty-seven counties and gave them exclusive jurisdiction "to hear and determine all suits and other proceedings instituted against executors and administrators, upon any demand against the estate of their testator or intestate." They had concurrent jurisdiction with "the circuit court" (not courts) on some matters, but not on probate demands.

In view of these changes, in the revision of our statutes in 1865 the section vesting jurisdiction of probate matters in the county courts was modified by adding "when not otherwise provided by law," G.S. 1865, sec. 7, p. 556; and the present Section 5 was changed by striking out the words "entrusted by this act to the county court" and inserting in lieu thereof "contemplated by this chapter," so that the section read (G.S. 1865, sec. 4, p. 480):

"All orders, settlements, trials and other proceedings contemplated by this chapter, shall be had or made in the county in which the letters testamentary or of administration were granted."

But the Revision of 1865 was not divided into chapters and articles. The arrangement was by "Titles" subdivided into chapters, each title being what would now be a chapter, and each chapter that would now be an article. The "chapter" referred to in Section 4, just quoted, dealt only with the appointment and removal of executors and administrators and did not include the entire administration law.

In 1879 (the Constitution of 1875 meanwhile having provided for a uniform system of probate courts all over the State) Section 5 was left standing just as it appeared in the Revision of 1865 — that is, referring to "all orders, settlements, trials and other proceedings contemplated by this chapter." But the statutes of 1879 were divided into chapters and articles, Chapter I, in which Section 5 appeared, containing all the administration law. The reference therefore was to the whole field of that law.

The section remained in that form for thirty years, through the Revisions of 1889 and 1899. In the 1909 revision, where the present Section 5 appeared as Section 13, it was changed to read as it does now, referring to "all orders, settlements, trials and other proceedings contemplated by articles I to XIII, inclusive, of this chapter." (Italics ours.) So it has stood for the last twenty-five years, about. There were twenty-one articles in Chapter I, Revised Statutes 1909, the same in the Revision of 1919, and twenty-two articles in Chapter I of the present revision. The section as it has continued since the last change singles out the first thirteen of these articles and says all trials and proceedings contemplated by them shall be had in the county where letters were granted.

Section 189, authorizing establishment of demands against the estate of a decedent in a court of record, is in one of those articles — Article VII. Ordinarily that method is but a substitute for obtaining the allowance of a demand in the probate court — or, at least, as the cases say it is a concurrent method. The two sections providing for the enforcement of probate demands — Section 189 by suit in the circuit court, and Section 190 by proceeding in the probate court — have stood side by side in the same article for many years. How can it be said one is not contemplated by the articles and the other is; or that one is not a trial or proceeding and the other is?

Where the suit is against the executor or administrator to enforce a claim against the estate he represents it seems to me more practical that the action should be brought in the county where the administration is pending, where the court records are, where the deceased resided, and where the proof, ordinarily, would be more accessible. Is this not preferable to compelling the estate, the real party in interest, to defend suits all over the State? It is held probate courts must not close administrations before suits against the legal representative in other courts of record are ended. [State ex rel. Knisely v. Holtcamp, 266 Mo. 347, 181 S.W. 1007.] Is it good policy to bind the probate court in charge of an estate with knowledge of what may be going on in any or all of the other courts of record in Missouri?

There may be complications were the administrator or executor is sued for some breach or default of his own affecting the estate, or where land titles are involved, or where there are a number of defendants; but the general rule elsewhere would hardly be as it is if these considerations outweigh the convenience to the estate. One thing is certain: the construction of the law contended for in this opinion would not create difficulty in obtaining service of process on the executor or administrator even if he should happen to live in a different county from that in which the administration is being carried on as a California case suggests. The suit can be brought in the county of the administration and the administrator can be served where he lives, as in the case of corporations. [See St. Charles Sav. Bank v. Thompson (Mo.), 210 S.W. 868, 871.]