Becraft v. Lewis

Ellison, J.

This proceeding is to revoke the authority of the defendant, the public administrator of Schuyler county, to administer on the estate of J. W. Anthony, deceased, late of Davis county, Iowa. It was begun on the motion of plaintiffs in the probate court. The motion was overruled and appealed to the circuit court where it was again denied and the plaintiffs appeal. At the trial it was admitted that defendant Lewis was ordered by the probate court of Schuyler county to take charge of the estate of J. W. Anthony, deceased, and is assuming to act as the. administrator of the estate of said J. W. Anthony, deceased. That said Anthony at the date of his death in 1885, and for many years theretofore resided in Davis county, Iowa. ■ That he died at his home in Davis county, Iowa, leaving a will whereby he gave his widow, who is now living in Davis county, Iowa, all his personalty, absolutely, with life-estate in his realty with remainder in his children and their descendants. That said Anthony, at his death and for many years prior thereto, had two sons-in-law, residents of Schuyler county, Missouri, who have ever since been, residents of Schuyler county, Missouri, and have large families by their wives, daughters of said Anthony, and that said Anthony had no other kin in this county. That at said Anthony’s death he held a note purporting to have been executed by plaintiff, Adam Becraft, whereby it appears said Becraft owed him about six hundred dollars, which note is the subject of the administration • of defendant Lewis. The said note at the time of said Anthony’s death was held and owned by him in Davis county, Iowa, and was never in the state of Missouri until brought here for the purposes of the administration by defendant. That defendant is public administrator of Schuyler county, Missouri. That no one applied under sections 7 and 8 of the Revised Statutes for letters on the estate of said Anthony. R. Caywood, probate judge of Schuyler county, Missouri, testified as follows: “I am probate judge of Schuyler county, Missouri, and was when defendant was ordered to take charge of and administer upon the estate of J. W. Anthony, deceased. There was no notice or citation issued to either of the two daughters, or to either of their husbands, or to any one else before granting letters to defendant. That there was no renunciation of preference in the right to administer filed with the court. That there was no proof taken at or before granting letters to defendant as to whether any one resided within the state, who, under the law, was preferred in the administration of the estate. That defendant proceeded in the administration under the order of the probate court, and not of his own motion, and it was agreed that there had been no administration of said estate in Davis county, Iowa, the home of deceased, and that his widow had taken charge of all his personalty under the will, and is using and disposing of it as her own, and that Anthony left no debts.”

The payor of the note resided in Schuyler county, Missouri, and, therefore, the situs of the asset was in this state notwithstanding the note itself was in Iowa. McCarty v. Hall, 13 Mo. 480; Partnership Estate of Henry Ames & Co., 52 Mo. 290. The note was brought or sent into this state for the purpose of administration. We have, then, property or assets in this state, and the probate court believing it became the duty of the public administrator to take charge of the estate entered the following order: “It appearing to the court that John W. Anthony, deceased, late a resident and citizen of the county of Davis and state of Iowa, died on or about December, 1885, leaving an estate in Schuyler county, Missouri, consisting of personalty, choses in action and real estate, that is liable to be wasted, injured or lost; that said deceased left no widow or heir in this state capable of administering, and no person has administered on said estate ; and, it further appearing to the court that it is necessary and desirable that an administration should be had upon said estate in this state, it is therefore ordered that Green A. Lewis, public administrator in and for said county of Schuyler, take possession of and administer upon the estate of said deceased in this county.” Whether the court thought itself justified in making the order by either subdivision four, five or six of section 306, Revised Statutes, 1879, we need not consider. We regard it as quite clear that as there were assets in Schuyler county of an unadministered estate, which, as the probate court has found, were liable to be wasted, “injured or lost,” “good cause” existed for ordering the public administrator to take charge of the same, as provided by that section.

The discussion of this case has brought up the question of the rights of Mrs. Anthony, the widow, to whom the deceased willed the note in question, it being' contended, that she took the title under the will and that there was, therefore, nothing belonging to the estate upon which to administer. It is fundamental law, first, that on the death of any one leaving property, the administrator takes the title to personalty, while the heir takes the title to real estate; second, the heir or devisee of personal property can only secure the title through administration. And this is true though there are no debts, and the heir be the sole distributee. These propositions are sustained by the following authorities: State ex rel. Hounsom v. Moore, 18 Mo. App. 406; Weeks v. Jewett, 45 N. H. 540; Wood v. Bagley, 13 Wend. 453; Marshall v. King, 24 Miss. 85; Allen v. Simmons, 1 Curtis, 122; Short v. Farmer, 4 Dev. & Batt. 122; Whit v. Ray, 4 Ind. 14; Miller v. Eastman, 11 Ala. 609; Murphy v. Hanrahan, 50 Wis. 485; Bradford v. Felder, 2 McCord Ch. 168; Naylor v. Moffat, 29 Mo. 127 and 129. The case of Morton v. Hatch, 54 Mo. 408, does not hold differently from these views; for, in that case the question was, “did the bequest in the will of Morton made and probated in the state of Kentucky, after his estate had been fully administered and settled, have the effect to vest the title to the demand in plaintiff?” It being admitted that there were no debts in Missouri, thereby making it unnecessary to retain the property to pay debts to our citizens, it was held that the devisee could sue and recover in her own right. But it will be observed that her title had become perfected by administration in Kentucky. Such administration being a necessary prerequisite to the title of an heir or devisee of personal property. Authorities, supra. The will of the personalty being executed according to the laws of Kentucky and administration having been had and closed there, the title became perfect in the devisee but subject to be retained here by force of our statute for the benefit of any creditors who were citizens of this state. I do not consider the case in any way conflicting with the position we have taken.

The fact that the deceased resided and died in Iowa and that the legatee resided there makes no difference in the application of the rule. There was no administration in Iowa, and consequently, as we have seen, no title vested in Mrs. Anthony even under the case of Morton v. Hatch. The asset, then, was an asset of the estate, the title to which vested in the administrator, and administration is justifiable if for no other reason than to transfer the title. The administrator’s right to the property is exclusive of “distributees and of all oers whomsoever.” Naylor v. Moffat, 29. Mo. 126. This is not only demonstrated by the authorities cited above, but is the result to be deduced from an unbroken line of decisions of our own courts. In Smith v. Denny, 37 Mo. 20, it is held that the title to personalty passes to the administrator and that the heirs cannot sue for an injury thereto; and that there must be administration before there can be adjudication in court. This was affirmed in Hellman v. Wellenkamp, 71 Mo. 407.

The suggestion that there were no debts owing by the estate should have little weight. I know of no way, short of the period of limitation, by which it can be definitely known that there are no debts left by a deceased person. And if we can dispense with administration simply by offering proof that no debts are known to exist (which is all that testimony could show) we would make much confusion and overturn well-recognized modes of procedure.

Generally, the relatives of a deceased, who are mentioned by the statute, are entitled to administer and must be notified before their .right is considered relinquished. R. S. 1879, secs. 7, 8. But, in this case the only relatives were two married daughters who are incapable of administering (section 6, Revised Statutes, 1879), and so the probate court has found.

The authorities above cited show (the principle being approved everywhere) that this debt cannot be collected, except through an administrator appointed in this state; the necessity, therefore, becomes apparent, without further illustration, for the order appointing the public administrator. It would be a singular spectacle to have this plaintiff, who is the debtor, escape his debt by sustaining his motion to disable any one from suing him. There is no question in our minds as to the power of the probate court under section 306, Revised Statutes, to order the estate into the hands of the public, administrator when in its judgment good cause exists to prevent its being “injured, wasted, purloined or lost.” Headlee v. Cloud, 51 Mo. 301; Callahan v. Griswold, 9 Mo. 784.

It will be readily seen that authority asserting the right of a devisee of real estate or “immovables'" to sell such property without letters of administration is not at all applicable to the point here. Nor is authority applicable which holds that an executor with power of sale of real estate may sell without administration, he in such case being a trustee under the will, as we decided in Compton v. McMahan, 19 Mo. App. 494.

The judgment, with the concurrence of Gill, J., will be affirmed ;

Smith, P. J., dissents.