Imágenes de páginas
PDF
EPUB

A

PPEAL by the executrix of the estate of Alfred I. Miller, deceased, from an order of the District Court for Labette County, directing the probate court to appoint an administrator of such estate. Reversed.

The facts are stated in the opinion. Messrs. A. A. Osgood, Paul H. Kimball, John E. Bishop, and Thomas H. Cobbs, for appellant:

The situs of the stock is St. Louis, the domicil of the deceased, and not Parsons, the domicil of the corporation.

Cook, Corp. § 361; Farrington v. Tennessee, 95 U. S. 679, 24 L. ed. 558; Tappan v. Merchants' Nat. Bank, 19 Wall 490, 22 L. ed. 189; Covington v. First Nat. Bank, 198 U. S. 100, 49 L. ed. 963, 25 Sup. Ct. Rep. 562; Newark City Bank v. Fourth Ward As

Connors v. Cunard S. S. Co. 204 Mass. 310, 26 L.R.A. (N.S.) 171, 134 Am. St. Rep. 662, 90 N. E. 601, 17 Ann. Cas. 1051; Watson v. Collins, 37 Ala. 587.

sessor, 30 N. J. L. 13; State, Fish, Prosecutor, v. Branin, 23 N. J. L. 484; Griffith v. Watson, 19 Kan. 23; Hutchins v. State Bank, 12 Met. 421; Middlebrook v. Merchants' Bank, 41 Barb. 481; Brown v. San Francisco Gaslight Co. 58 Cal. 426; Luce v. Manchester & L. R. Co. 63 N. H. 588, 3 Atl. 618; Simpson v. Jersey City Contracting Co. 165 N. Y. 193, 55 L.R.A. 796, 58 N. E. 896. The court erred in overruling the motion to dismiss the appeal.

Graves v. Bond, 70 Kan. 464, 78 Pac. 851; Grimes v. Barratt, 60 Kan. 259, 56 Pac. 472. Messrs. Glasse & Burton for appellee.

Johnston, Ch. J., delivered the opinion of the court:

Involved in this appeal is the question

the state, had neither tangible property nor a bona fide cause of action against any person residing in the county where appli cation for administration was made, the ordinary did not have jurisdiction to grant administration. Berry v. Van Hise, 134 Ga. 615, 68 S. E. 423; Power v. Green, 139 Ga. 64, 76 S. E. 567.

No particular amount of assets is necessary to give the surrogate court jurisdiction to appoint an administrator of one who was an inhabitant of the state and was killed within the jurisdiction. Welch v. And where an intestate was domiciled New York C. R. Co. 53 N. Y. 610. and died outside of the state, there can be So, the fact that there were no assets no valid grant of administration in the above exemptions or subject to administra-state unless he left assets in the state, or tion is no ground for withholding adminis- such assets have come into the state since tration on the estate of a resident decedent his death. on petition of one holding a note against 565. intestate with waiver of exemptions. Wheat v. Fuller, 82 Ala. 572, 2 So. 628.

But under a Code provision that if from any cause an estate is unrepresented, and not likely to be represented, the ordinary may vest the administration in the clerk of the superior court of the county, but that if the estate does not exceed in value the sum allowed by law to the widow and children, no administration shall be necessary, it is error for the ordinary to make the clerk administrator of an intestate, who died in the county without any estate, so as to enable a pending suit to be carried on against his representative. Lowery v. Powell, 109 Ga. 192, 34 S. E. 296.

And there should be no grant of administration where the only property left by the deceased, who apparently was a resident, was his personal clothing, which the widow had taken, and the apparent motive of the application was to enable the petitioner to bring a suit against the administrator to quiet title, the court saying that the object of administration is to pay the debts and distribute the surplus to the heirs, and in order to have administration there must be

property to be administered. Murray's Estate, Myrich, Prob. Ct. Rep. (Cal.) 208.

And the probate court has no authority to issue letters of administration on the estate of one who was a nonresident of the state, and who left no property in the state, Mallory v. Burlington & M. River R. Co. 53 Kan. 557, 36 Pac. 1059.

So, where the decedent, a nonresident of

McCord v. Thompson, 92 Ind.

What value necessary.

See also note in 24 L.R.A. 684.

The mere existence of local assets, irrespective of amount or value, will support a local grant of administration upon the estate of a resident decedent. Barlass v. Barlass, 143 Wis. 497, 139 Am. St. Rep. 1111, 128 N. W. 58.

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, so, where intestate died while on a visit to the state, leaving two trunks and a valise, with their contents, and a small sum of money, the appointment of an administrator was authorized, and he could collect for the benefit of local creditors the balance of the purchase price of property sold in the state of intestate's residence, which was held by a trustee in the state where he died. Turner v. Campbell, 124 Mo. App. 133, 101 S. W. 119.

The status of intestate's property at the time of his death governs; so, where a resident intestate left $36, the fact that it was afterwards used to pay funeral expenses is immaterial, and a grant of administration was proper. Barlass v. Barlass, supra.

Likewise where deceased had property on his person at the time he was killed, consisting of a purse, $5 in money, and a claim for $25, the fact that it was sent out

whether an administrator can be appointed | state, and no administration had been comin Kansas in a case where the deceased menced in any other county of the state, apowned no property in Kansas, but did own plied to the probate court of Labette county certain shares of stock in a corporation or- for the appointment of an administrator, ganized under the laws of Kansas, and hav-representing that Miller owned stock in the ing its general offices in the state, and is there an appeal from a decision by the probate court refusing to appoint an administrator on the application of one of the creditors of the estate? Alfred I. Miller, a resident of St. Louis, Missouri, died in 1911, owning stock in a Kansas corporation called the Tishomingo Electric Light & Power Company, which had its principal place of business in Parsons, Kansas. P. T. Foley, who alleged that Miller was indebted to him in the sum of $43,858.40, and that no will had been filed in any other probate court of the of the state to his widow would not defeat jurisdiction of the local courts to appoint an administrator. Missouri P. R. Co. v. Bradley, 51 Neb. 596, 71 N. W. 283, 3 Am. Neg. Rep. 244.

Under a statute providing for the appointment of an administrator in any county where there may be any debts or demands owing to an intestate, jurisdiction to appoint an administrator of a nonresident intestate is not defeated by the fact that the debtors had claims against the estate of decedent which might be set off against the amounts they owed. Hyatt v.

James, 8 Bush, 9.

In Wheeler v. St. Joseph & W. R. Co. 31 Kan. 640, 3 Pac. 297; Union P. R. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501; and Horton v. Trompeter, 53 Kan. 150, 35 Pac. 1106, which involved the jurisdiction of the courts to appoint administrators of resident minor decedents, the court, though acting upon the theory that some assets were necessary to give jurisdiction, sustained the ap pointments upon showings that insignificant amounts of personal property were owned by decedents.

And in Cox v. Kansas City, 86 Kan. 298, 120 Pac. 553, the suit of clothes which a nonresident decedent was wearing at the time of his death, valued at about $1.50, was held sufficient to give the court jurisdiction to appoint an administrator of his estate.

Personal property generally.

Money found upon the body of an unknown person upon the high seas, which has come into the registry of the United States district court, will give jurisdiction for administration by the public administrator of the county in which it is located. United States v. Tyndale, 54 C. C. A. 324, 116 Fed. 820.

The courts of Louisiana have no jurisdiction to administer the estate of a decedent domiciled in another state where the only property of decedent was of a personal or movable nature, as this species of property follows the domicil and is adminis

Kansas corporation named, that an executor of the estate had since been appointed in Missouri, and that the claim of Foley had been filed in the court appointing the executor. The probate court refused to appoint an administrator, and dismissed the application, holding that it had no jurisdiction or power to make such an appointment. An appeal from that decision was taken to the district court, where it was held first, that the decision was appealable, and, second, that the probate court had erred in holding 'that it had no power to appoint an administered by its laws. Thomas's Succession, 35 La. Ann. 19.

Debts due decedent, generally.

debt due the estate of a deceased person For the purposes of administration, a from a debtor who resides in a different domiciled at the time of his death, is an asset at the place where the debtor resides, whether such debt be evidenced by covered prior to the death of the creditor. simple contract, specialty, or judgment reSo, the debt of a judgment follows the judg

state from that in which the creditor was

ment debtor when he removes to another

Miller

state, and is bona notabilia there, which
will give the probate court jurisdiction to
appoint an ancillary administrator.
v. Hoover, 121 Mo. App. 568, 97 S. W. 210.
administration shall be grantable in the
Under a statute providing that letters of
case of a nonresident decedent by the regis
of the goods and estate of such decedent
ter of the county where the principal part
shall be, the situs of a debt evidenced by a
promissory note which was brought into
cedent was in the county where the note
the state by the executor of a foreign de-
dence of the debtor. Viosca's Estate (En-
was brought, not the county of the resi-
gelskirger's Appeal) 197 Pa. 280, 51 L.R.A.
876, 47 Atl. 233.

The courts of Louisiana have no authority to appoint an administrator to collect a debt due by a New York creditor to one who was a resident of and died in the state of Kentucky. Moise v. Mutual Reserve Fund Life Asso. 45 La. Ann. 736, 13 So. 170.

Deposit in bank.

A deposit in a bank in a state, which is subject to withdrawal by check or surrender of the bank book, held and owned by a nonresident at the time of his death, constitutes property situated in the state, so as to give the probate court jurisdiction to entertain a petition for administration. Gregory v. Lansing, 115 Minn. 73, 131 N. W. 1010.

of that court to exercise the power and make the appointment. From that ruling, an appeal was taken to this court.

trator of the estate, and that it was the duty | the Miller estate is probate jurisdiction, and the decision holding that administration could not be had, and that no administrator of the estate could be appointed in Kansas, was a final decision of the whole merits of the application. The case of Grimes v. Barratt, 60 Kan. 259, 56 Pac. 472, is cited as an authority against the right of an appeal from such decision. That case did not determine that there could be no review of a final decision of the probate court refusing administration of an estate; but it did determine that the legislature had vested large discretion in the probate court in the selection of administrators, and that the exercise of that discretion was not the subject of review or appeal. The statute designates a number of persons who are entitled to ad

We have, first, the question, Is there an appeal from a decision of the probate court refusing to appoint an administrator? That court is vested with the power and charged with the duty of caring for the estates of deceased persons and of granting letters of administration. In the executors and administrators act it is provided that an appeal may be taken from certain decisions, and also from "a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction." Gen. Stat. 1909, § 3624. Whether there shall be administration of

Contingent claim.

E. 125.

A certified copy of a judgment rendered in another state is sufficient bona notabilia The contingency that an insurance policy to authorize ancillary administration. on the life of the deceased might be canceled, in which event certain premiums Morefield v. Harris, 126 N. C. 626, 36 S. would be returned to his estate, the policy not being payable to the decedent or his estate, is not such an asset as would authorize the court to appoint a clerk administrator, over the objection of the wife and children of the deceased. Guerry v. Pullen, 112 Ga. 314, 37 S. E. 391.

Equitable claim.

Although the sole property of the estate is an equitable claim or demand, the probate court should treat such a claim as

property justifying the issuance of letters
in advance of its establishment, and should
not await the action of a court of equity
in establishing the validity of the same,
nor should it, sitting as court of equity,
itself try the controversy, and, as it de-
termines it in favor of or against the as-
serted equity, grant or withhold letters of
administration. Re Daughaday, Cal.
141 Pac. 929.

And where personal property which had belonged to the estate was held by an heir under a title which might be void or voidable, the appointment of an administrator to collect and distribute the assets of de

ceased was proper. Re Acken, 144 Iowa, 519, 123 N. W. 187, Ann. Cas. 1912A, 1166. But a mere claim advanced by an applicant for administration that property owned by the son of deceased was purchased with money belonging to deceased does not constitute property within the state which will warrant the granting of administration. Beach's Appeal, 76 Conn. 118, 55 Atl. 596. Judgments.

See also note in 24 L.R.A. 687.

For the purpose of conferring jurisdiction to grant administration, the situs of a judgment due an intestate who has no fixed place of residence is in the county in which he died, and not in the county in which the judgment was rendered. Angier v. Jones, 28 Tex. Civ. App. 402, 67 S. W. 449.

Corporate stock.

See also note in 24 L.R.A. 687.

In Richardson v. Busch, 198 Mo. 174, 115 Am. St. Rep. 472, 95 S. W. 894, which is cited in RE MILLER, the stock in question was issued by a New York corporation, and belonged to the estate of a decedent who was domiciled in New York; and the certificates at the time of the appointment of an administrator in Missouri were in the possession of a pledgee. The actual decision was therefore merely to the effect that the presence of the certificates in Missouri did not entitle the administrator appointed in that state to the stock. And in the companion case of De La Vergne v. Richardson, 198 Mo. 189, 95 S. W. 898, it was held that the appointment of the administrator was without jurisdiction, there being no other assets of the estate within the state. It is obvious, therefore, that while the court declared generally that the certificate is not the stock, but the mere evidence of the ownership of the stock, there was no actual decision as between the state of the owner's domicil and the state where the corporation is organized.

But it was held in Re Arnold, 114 App. Div. 244, 99 N. Y. Supp. 740, that where a nonresident dies owning stock of a domestic corporation, such stock is property within that county where the corporate property is or where the corporation has its principal place of business, within the meaning of a provision of the statute authorizing the surrogate court to grant letters testamentary when decedent, "not being a resident of the state, died without the state, leaving personal property within that county, and no other." This case presents the opposite view from that taken in RE MILLER, which holds that the situs of corporate stock is the domicil of the owner for the purposes of administration.

The decision in the present case did not involve a matter of discretion; but it was a final determination of the case, and left nothing further for the consideration of the probate court. As it effectually terminated the litigation of the question in that court, it was a final order or decision, from which an appeal lies.

ministration of an estate in a certain order, | 114 Pac. 1071; Kroenert v. Sawyer, 87 Kan. and from whom the probate court may make 374, 124 Pac. 418. a selection. The competency and suitability of the widow, next of kin, or creditors to discharge the trust is left to the discretion of the probate court, and it was held that such discretion was not reviewable unless it was oppressively and arbitrarily exercised. It was suggested that outside of this discretion a review might be had, and that under the then-existing statutes a final order of that kind was open to review in a proceeding in error. Under the new Code proceedings in error had been abolished, and a review of judgments and of final orders of probate courts may now be had by appeal. Civil Code, §§ 564, 567, 571 (Gen. Stat. 1909, §§ 6159, 6162, 6166); Re Petitt, 84 Kan. 637,

In this connection see also Grayson v. Robertson, 122 Ala. 330, 82 Am. St. Rep. 80, 25 So. 229, Warrior Coal & Coke Co. v. National Bank, Ala. 53 So. 997, and Murphy v. Crouse, 135 Cal. 14, 87 Am. St. Rep. 90, 66 Pac. 971, which, while not involving the question of jurisdiction to appoint an administrator, hold that, for the purpose of administration, the situs of corporate stock is that of the corporation rather than that of the owner of the stock.

Claim against estate of another.

An apparent claim upon an estate furnishes a sufficient basis for the appointment of an administrator of the estate of an alien claimant to pursue it. Emery v. Cooley, 83 Conn. 235, 76 Atl. 529.

The interest of a nonresident beneficiary under a trust created by a will which had been admitted to probate in the state, which trust estate was in process of settlement in a court clothed with jurisdiction of the subject-matter and of the trustee, was sufficient to authorize the appointment of an administrator of the deceased beneficiary. Vinton v. Sargent, 195 Mass. 133, 80 N. E. 826.

The right to a distributive share in an intestate's estate is to be accounted bona notabilia which will authorize the appointment, in the county where intestate resided and left her estate, of an administrator of the estate of a deceased nonresident claimant. Smith v. Munroe, 23 N. C. (1 Ired. L.) 345.

But the court had no jurisdiction to grant administration over an estate consisting of slaves which were in another state at the time of the death of the owner, and were brought into the state by the executrix of the will, who qualified in the other state where the testator died, and where the will was admitted to probate, independently of the fact that the executrix had a life estate in the slaves, as by virtue of her qualification under the will, she took the legal title to them, and might maintain an action in this state in her own name without taking

Was it the duty of the probate court to appoint an administrator on the application of a creditor of the decedent? Miller was a nonresident of Kansas, and the question is, Did he leave anything here on which to found administration? It has been held that "where a person dies intestate, who was not a resident or inhabitant of the state at out letters of administration. Treadwell v. Rainey, 9 Ala. 590.

Community property.

The interest of a deceased wife in the is tangible to become the subject of probate community property not sufficiently proceedings. Packard v. Arellanes, 17 Cal. 525.

Interest in partnership.

Where intestate was a nonresident of the state at the time of his death, but was possessed of a valuable interest in a partnership in the state, and left personal property in the county at the time of his death, and at the time of setting apart the year's support for the widow and two of the minor children they resided in the county, the granting of letters of administration and setting apart the year's support to the widow and minor children was proper. Wright v. Roberts, 116 Ga. 194, 42 S. E. 369.

Where an assignment of all the property of a bankrupt partnership was made with the consent of the bankruptcy court to parties who furnished money to effect a composition with creditors, so that there was no reversion of interest upon the discharge of the bankrupt, to the individual members of the prior firm, there was nothing upon which an administration might attach as to any of the prior assets of the firm so as to give the public administrator, acting as administrator for a deceased partner, any interest in the partnership estate. Hawkins v. Quinette, 156 Mo. App. 153, 136 S. W. 246.

Action for death or personal injury.

See also note in 24 L.R.A. 686. As to the right to grant administration for the sole purpose of bringing an action under the Federal employers' liability act, see note to Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 78.

Assuming that the existence of assets is necessary to give jurisdiction to appoint

the time of his death, and who left no estate within the state to be administered, a probate court of the state has no jurisdiction to issue letters of administration on the estate of such intestate, and, where letters are issued, the acts of the court in doing so are utterly null and void." Mallory v. Burlington & M. River R. Co. 53 Kan. 557, syl. 1, 36 Pac. 1059; Perry v. St. Joseph & W. R. Co. 29 Kan. 420; Ewing v. Mallison, 65 Kan. 484, 93 Am. St. Rep. 299, 70 Pac. 369. There was no property in Kansas on which to found administration, unless Miller's ownership of shares of stock in a Kansas corporation furnished a basis. Under the common law and as a general rule the situs of personal property is the residence of the owner, and the title to personalty is an administrator, either because decedent | was a nonresident or because the law of the jurisdiction requires the existence of assets even in the case of resident decedents, the general rule is that a cause of action for wrongful death is a sufficient asset to justify the appointment of an administrator. Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280; Mesker v. Bishop, Ind. App. 103 N. E. 492; Durden v. Wright, Ga. 84 S. E. 125 (dictum); Findlay v. Chicago & G. T. R. Co. 106 Mich. 700, 64 N. W. 732; Fann v. North Carolina R. Co. 155 N. C. 136, 71 S. E. 81; Jordan v. Chicago & N. W. R. Co. 125 Wis. 580, 1 L.R.A. (N.S.) 885, 110 Am. St. Rep. 865, 104 N. W. 803, 4 Ann. Cas. 1113; Richards v. Riverside Iron Works, 56 W. Va. 510, 49 S. E. 437; Fickeisen v. Wheeling Electrical Co. 67 W. Va. 335, 27 L.R.A. (N.S.) 893, 67 S. E. 788; American Car & Foundry Co. v. Anderson, 127 C. C. A. 587, 211 Fed. 301.

The right to letters of administration does not depend upon the existence of tangible assets to administer, but the appointment of an administrator may be proper and necessary in order to prosecute some claim of indeterminate value. So, administration should have been granted to a widow to enable her to prosecute a suit against a sheriff for permitting her husband to be taken from the jail and killed by a mob. Ex parte Jenkins, 25 Ind. App. 532, 81 Am. St. Rep. 114, 58 N. E. 560.

And the appointment of an administrator of an intestate, who was killed under circumstances that give a statutory cause of action for his death, was not invalid on the ground that no right of action arose in behalf of anyone until after the administrator had been appointed, and hence the administrator's appointment was not sustained by any assets in existence before it was made, as it is enough that assets and appointment come into being at the same moment. Southern P. Co. v. De Valle Da Costa, 111 C. C. A. 417, 190 Fed. 689.

In Re Tasanen, 25 Utah, 396, 71 Pac. 984, the court expresses its opinion that the weight of authority is that a claim for

in the domiciliary executor or administrator. This rule may be modified by statute, and it frequently is for taxation and some other purposes. If the general rule applies that the situs of personal property follows the domicil of the owner, and there is nothing in the character of the property to except it from the operation of this rule, then it would seem that the probate court was without jurisdiction to make the appointment. The statute, in terms, provides that "the stock of any corporation created under this act shall be deemed personal estate." Gen. Stat. 1909, § 1743.

It is contended, however, that shares of stock are unlike ordinary personalty, and that the right under which an owner holds stock is incident to the ownership of the death by wrongful act is an asset of the estate of the deceased, but held that it was unnecessary to determine that question in view of a statute which, after providing for the appointment of administrators under certain circumstances, further provided for administration in all other cases in the county where application for letters is first made, the court regarding that provision as being intended to apply to cases in which the deceased was not a resident, and left no property in the state.

Although the damages recoverable in a statutory action for wrongful death may not be assets of the estate of the deceased in any proper sense of the term, letters of administration may be granted to enforce the right conferred by the statute, although the decedent left no property in the jurisdiction, the provision of the statute giving the administrator the right to sue for the death necessarily implying the right of the probate court to appoint an administrator for that purpose alone. Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410.

So, in Hutchins v. St. Paul, M. & M. R. Co. 44 Minn. 5, 46 N. W. 79, 16 Am. Neg. Cas. 294, although the court said that, whether decedent was a resident or nonresident, the existence of assets is essential to administration, it was held that a cause of action for wrongful death was a sufficient foundation for administration of the estate of a nonresident in the county of the state in which he was killed, under a statute which gives the right to bring the action to the personal representative alone, although, strictly speaking, such cause of action never belonged to decedent during his lifetime, but accrued only upon his death, and the amount recovered, if any, forms no part of his general estate, but goes to the next of kin.

And this is the general rule, though deceased was a nonresident of the jurisdiction. Western U. Teleg. Co. v. Lipscomb, 22 App. D. C. 104; J. B. & J. M. Cornell Co. v. Ward, 93 C. C. A. 474, 168 Fed. 51; Dodge v. North Hudson, 177 Fed. 986; Cornell S. B. Co. v. Fallon, 102 C. C. A.

« AnteriorContinuar »