Summary
In Sheehan v. First Nat. Bank, 346 Mo. 227, 140 S.W.2d 1, 4, the contest for possession of assets in the estate of a non-resident was between the public administrator, holder of the assets, on the one hand, and the domiciliary administrator on the other, the latter being a party to the suit.
Summary of this case from Becker v. BuderOpinion
May 7, 1940.
1. PUBLIC ADMINISTRATOR: Constitutional Law. The office of a public administrator is a mere administrative office and his acts in taking charge of an estate are subject to judicial review by the probate court. [Mo. Const., Art. 3, and Sec. 34, Art. 6.]
2. RES ADJUDICATA: Judgment of Probate Court. Where plaintiff, public administrator of St. Louis, brought suit against a bank and the administratrix in another state to determine claims to property in this State belonging to a decedent in the other state, the Probate Court of St. Louis having held that the title to such property was vested in the widow, administratrix in the other state, which was necessarily a holding that she had complied with all the requirements of Section 273, Revised Statutes 1929, with regard to creditors, the suit was a collateral attack upon the judgment of the probate court and could be maintained only if said statute was unconstitutional.
3. CONSTITUTIONAL LAW. Where the public administrator of St. Louis brought suit for the purpose of administering property of decedent in another state which had been ordered by the Probate Court of St. Louis turned over to the widow, administratrix in the other State, plaintiff was not in a position to question the constitutionality of Section 273, Revised Statutes 1929, and thus collaterally attack such judgment of the St. Louis Probate Court because plaintiff was only indirectly affected by the future operation of said statute and never had a vested right to make such attack.
Plaintiff's authority to administer upon any estate came from the Legislature which created his office and the Legislature could change it or take it away in whole or in part as to future estates as it did in the enactment of said Section 273.
4. CONSTITUTIONAL LAW: Probate Courts: Public Administrators. A public administrator in an action to obtain control of certain property of a nonresident decedent cannot question a judgment of the probate court in awarding such property to the nonresident administratrix of such property as in violation of the constitutional provision (Sec. 35, Art. 6, Mo. Const.), on the ground that such judgment of probate court adversely affects the interest of resident creditors, because such public administrator is not a creditor and not directly affected by the provisions of Section 273, Revised Statutes 1929, with regard to creditors.
Such administrator could not be heard to complain as to the effects of that section upon the collection of city, school, or state taxes on the property of the nonresident decedent, because he was neither a tax collector nor charged with any duties of collecting taxes.
In such case it is immaterial so far as plaintiff's rights are concerned where the situs of the property is for the purpose of taxation.
Where plaintiff alleged that the officers charged with the collection of said taxes had already acted upon it and found against liability for such taxes there was no statute giving such public administrator authority to review the acts of such officers, whether they were misled as to the law or not.
Plaintiff in such action had no authority under the provisions of Section 34, Article 6, Missouri Constitution, to make a collateral attack in the circuit court upon the judgment of the probate court.
Appeal from Circuit Court of City of St. Louis. — Hon. Max Baron, Judge.
AFFIRMED.
William M. Fitch and Malcolm I. Frank for appellant.
(1) The judgment sustaining said demurrers was erroneous and prejudicial to plaintiff's rights in the premises and such judgment should therefore be reversed. Sec. 770, R.S. 1929; Troll v. Third Natl. Bank, 278 Mo. 81, 216 S.W. 922; Troll v. United Rys., 216 S.W. 923; Troll v. Natl. Bank of Commerce, 216 S.W. 923. (2) The demurrers admit all facts adequately pleaded in said petition. Troll v. Third Natl. Bank, 278 Mo. 81; Selleck v. Hawley, 331 Mo. 1060; 21 C.J., 443, sec. 489. (3) The petition presents issues for the determination of a court of equity. Hanson v. Neal, 215 Mo. 256; Thorn, etc., Co. v. Bank, 158 Mo. 272; 1 Pomeroy's Equity Jurisprudence, secs. 129-144; State ex rel. American Auto Ins. Co. v. Gehner, 320 Mo. 719; Pomeroy's Equity Jurisprudence, sec. 140, p. 163; Prudential Ins. Co. v. Sheehan, 100 S.W.2d 57. (4) The demurrers challenged the facts stated in the petition on the ground that such facts disclosed that plaintiff had an adequate remedy at law and therefore should be denied his right to proceed in equity. The trial court sustained the demurrers. The plaintiff challenged that ruling and prays this court to reverse same because it was manifestly erroneous as shown by the facts set out in the petition. Hanson v. Neal, 215 Mo. 278; State ex rel. General Motors Accept. Corp. v. Brown, 330, Mo. 228; Troll v. Third Natl. Bank, 278 Mo. 74. (5) Homer L. Meyers intended that the property described in the petition should have its business situs in the city of St. Louis and not at his residence in Saline County, Illinois; that the business situs of said property having been so established, it was in the State of Missouri for all purposes, including the taxation thereof as provided by law, and for the purpose of administration according to the General Administration Statutes of the State. It was not exempted from such General Administration Statutes under the provisions of Section 273, Revised Statutes 1929. State ex rel. v. Estate of Baldwin, 325 Mo. 215; New Orleans v. Stempel, 175 U.S. 309, 44 L.Ed. 174; Goddard v. People ex rel. Goar, 106 Ill. 25. (6) The plaintiff, as public administrator, filed notice of the beginning of his administration of the estate of Homer L. Meyers, deceased, in the Probate Court of the City of St. Louis, Missouri, on the 18th day of June, 1934. Thereafter, and on the 23rd day of June, 1934, Nellie M. Meyers, the foreign administratrix, filed notice of her qualifications and of the beginning of her administration in Missouri under Section 273, Revised Statutes 1929. Plaintiff's administration had then already vested in him title to all of the Missouri assets of said estate. No title to such Missouri assets passed to the foreign administratrix under her application to proceed, and her claim to the title of such assets, as well as to the possession thereof, was and is void. The plaintiff, alone, is vested with title to said assets and with the sole right of possession thereof. Secs. 43, 250, 273, R.S. 1929; Lohman v. Ry. Co., 326 Mo. 829; Adey v. Adey, 58 Mo. App. 410; State ex rel. v. Holtkamp, 14 S.W.2d 650. (7) The property described in the petition is now held within the jurisdiction of the Circuit Court of the City of St. Louis for all purposes of adjudicating the rights to it as between the public administrator, the foreign administratrix and the First National Bank. Morrill v. Amer. Reserve Bond. Co., 151 F. 318; International Banking Corp. v. Lynch, 269 F. 246; Butlar v. Lawson, 72 Mo. 245; Estate of Glover v. Shipley, 127 Mo. 163; McKee v. Allen, 204 Mo. 675; Brewing Co. v. Stickman, 180 Mo. App. 326. (8) The statute, Section 273, is void as being in conflict with the Constitution of the United States and of the State of Missouri. Sec. 273, R.S. 1929; Sec. 1, Art. 14, U.S. Const.; Lesler v. Washingon Harbor Line Comrs., 146 U.S. 646; Barbier v. Connolly, 113 U.S. 51; Texas v. Eastern Tex. Ry. Co., 258 U.S. 217; Arkansas Natural Gas Co. v. Railroad Comm., 261 U.S. 383; Art. 6, Secs. 34, 35, Mo. Const. of Mo.
Bryan, Williams, Cave McPheeters for First National Bank in St. Louis; Harry J. Flanders and Thomas S. McPheeters, Jr., for Nellie M. Meyers.
(1) The circuit court had no original jurisdiction of the subject matter of this action, as the exclusive original jurisdiction of the subject matter is vested in the probate court. Secs. 1938, 2046, R.S. 1929; Secs. 22, 34, Art. VI, Mo. Const.; Brewing Co. v. Steckman, 180 Mo. App. 325; Titterington v. Hooker, 58 Mo. 597; Priest v. Spier, 96 Mo. 115; Scott v. Royston, 223 Mo. 592; Kerwin v. Kerwin, 204 S.W. 924; Beck v. Hall, 211 S.W. 130; State ex rel. Nute v. Bruce, 334 Mo. 1115; Bank of Willow Springs v. Lillibridge, 316 Mo. 974; Davis v. Johnson, 332 Mo. 422. (2) The petition shows on its face that the plaintiff has an adequate remedy at law and the demurrer was properly sustained on that ground. (a) The allegations with respect to the conspiracy to defraud the City of St. Louis and the State of Missouri of taxes are insufficient to show any right of action in the plaintiff for an injunction or for relief in equity. Sec. 9940, R.S. 1929; Hill v. Brothers, 217 S.W. 592. (b) The asking in the petition that the court decree that the title to the property be vested in plaintiff in equity by reason of its having acquired a business situs in this State does not make the action one of equitable jurisdiction. In re Estate of Huffman, 132 Mo. App. 63; Clinton v. Clinton, 223 Mo. 388; State ex rel. Amer. Automobile Ins. Co. v. Gehner, 320 Mo. 720. (c) An action in equity to quiet title to personal property will not lie in this State. State ex rel. Kenamore v. Wood, 155 Mo. 446. (d) An action for an accounting will not lie as a ground for relief in equity unless founded upon some known and established equitable ground of action, and the fact that the accounting is a long one will not give equity jurisdiction. Bennett v. Crane, 220 Mo. App. 612; Vogelsang v. St. Louis Wood Fibre Co., 147 Mo. App. 587; Sommerville v. Hellman, 210 Mo. 574; Eck v. Hatcher, 58 Mo. 239; Larimore v. Bobb, 114 Mo. 453; Tyson v. Farm Home Sav. L. Assn., 156 Mo. 594; Strode v. Frommeyer, 115 Mo. App. 223; Johnson v. Star Bucket Pump Co., 274 Mo. 423. (e) The petition is not an equitable bill of interpleader for the reason that the plaintiff is not a stakeholder and only a stakeholder can prosecute a bill of interpleader. Meridian Trust Co. v. Miller, 88 Conn. 159; Hayward Clark v. McDonald, 192 F. 893; Crass v. Memphis, 96 Ala. 451; Hellman v. Schneider, 75 Ill. 425; Clay v. Baker, 241 S.W. 449; Young v. Miller, 182 S.W. 823; Commerce Trust Co. v. Willow Springs Bank, 161 Mo. App. 435; Hathaway v. Foy, 40 Mo. 545. (f) A court of equity may not enjoin the removal or disposition of ordinary personal property by one not alleged to be insolvent. Secs. 273, 585, 591, 592, 723, R.S. 1929; Davis v. Johnson, 332 Mo. 421; Newell v. Kern, 218 S.W. 446. (3) Whether the intangible personal property had or had not acquired a business situs in this State has no effect upon the question of the rights of the defendant foreign administratrix. Sec. 273, R.S. 1929; Baldwin v. Missouri, 281 U.S. 591. (4) The facts stated in the petition show that there can be no ancillary administration in this State, that the public administrator cannot administer the estate and that he obtained no title to the property in the estate by the action which he took. Secs. 273, 299, 302, R.S. 1929; Lohman v. Ry. Co., 326 Mo. 829. (5) As the petition shows that the statute dispensing with ancillary administration in this State in no way injures the plaintiff, he may not assail it as being unconstitutional. Stouffer v. Crawford; 248 S.W. 585; Secs. 40, 299, 302, R.S. 1929; Adams v. Larrimore, 51 Mo. 132; In re Estate of Brinkwirth, 268 Mo. 95; In re Estate of Brinkwirth, 266 Mo. 480. (6) The order of the probate court vesting the title to the property in a foreign administratrix cannot be attacked in this collateral proceeding by asserting that the probate court actually made no order requiring the administratrix to give notice to creditors of the filing of her evidence of appointment as administratrix and the affidavit required by the statute. State v. McCord, 207 Mo. 526; Hayfield v. Taylor, 207 Mo. 240; Rush v. Bramm, 82 W. Va. 61; McIntyre v. St. L. S.F. Ry. Co., 286 Mo. 245; Davidson v. Davidson Real Estate Co., 226 Mo. 29; Hidden v. Edwards, 313 Mo. 666; State ex rel. v. Goggin, 191 Mo. 487; State ex rel. Ponath v. Hamilton, 240 S.W. 449; Bushman v. Barlow, 321 Mo. 1060; Thompson v. Scott, 323 Mo. 796; Sec. 273, R.S. 1929. (7) No constitutional rights of creditors or of distributees of the estate are invaded by the statute dispensing with ancillary administration in this State, where a nonresident dies having in this State only intangible personal property. Hines v. Hook, 338 Mo. 121; Ex parte Wilson, 330 Mo. 235; State v. Brodnax, 228 Mo. 44; Andrus v. Fidelity Mut. Life Ins. Assn., 168 Mo. 162; State ex rel. Rolston v. C., B. Q. Ry. Co., 246 Mo. 514; Haeussler Inv. Co. v. Bates, 306 Mo. 414; South Carolina ex rel. v. MacMaster, 237 U.S. 72; Lake Shore M.S. Ry. Co. v. Clough, 242 U.S. 385; Clark v. Kansas City, 176 U.S. 119; International Harvester Co. v. Missouri, 234 U.S. 210; Bachtel v. Wilson, 204 U.S. 41; Colgate v. Harvey, 236 U.S. 422; Douglas v. N.Y.N.H. H. Ry. Co., 279 U.S. 387; Dohany v. Rogers, 281 U.S. 369; Secs. 254, 255, 273, 870, R.S. 1929.
This is an action in equity seeking determination of the claims of the parties to certain personal property, asking also for an accounting and a temporary injunction. The court sustained defendants' separate demurrers and entered judgment of dismissal, from which plaintiff has appealed.
Both parties raise constitutional questions, requiring construction of the provisions of our State Constitution concerning the jurisdiction of the probate courts and the circuit courts. Plaintiff's petition covers twenty-seven printed pages, but it is only necessary to set out the essential facts alleged, which compel the result we reach, and which are hereinafter stated. Defendants' demurrer stated three grounds, namely: (1) lack of jurisdiction, of the subject matter, in the circuit court; (2) an adequate remedy at law; and (3) failure to state facts sufficient to constitute a cause of action.
As appears from the petition, plaintiff was the duly elected, qualified and acting Public Administrator of St. Louis. Defendant Nellie M. Meyers was the widow and administratrix of Homer L. Meyers, a resident of Saline County, Illinois, who died there intestate June 17, 1934. She was appointed administratrix by the proper court in Illinois on June 19, 1934, and deceased left no descendant or distributee who was a resident or citizen of Missouri, who would be entitled to administer property belonging to his estate in Missouri. Plaintiff, on June 18, 1934, filed notice in the Probate Court of St. Louis that he had taken charge of the estate of H.L. Meyers, and made demand upon defendant National Bank for his property which was refused, so that he never had possession of any property of the estate. Defendant National Bank in St. Louis had in its custody intangible personal property of deceased, at the time of his death, consisting of deposits in defendant bank, bonds of the United States, Chile, Australia, and the Dominican Republic, bonds of corporations (alleged to be all nonresidents of both Missouri and Illinois), and shares of stock in defendant bank. The petition also alleged concerning this property "that said deposit account and all of said securities, hereinabove mentioned held by said defendant, First National Bank in St. Louis, had a business situs or status at the time of the death of Homer L. Meyers, deceased, and for a long time prior thereto, in the City of St. Louis, Missouri, and at the banking house of the defendant, First National Bank in St. Louis, St. Louis, Missouri, and that it was there used by Homer L. Meyers, during his lifetime personally, and through the agency and instrumentality of the defendant, First National Bank in St. Louis, and that none of said property has at any time ever had a situs in the State of Illinois or at any other place while it was owned by Homer L. Meyers, except in the City of St. Louis and State of Missouri; that by reason of said facts said property is subject to taxation for state, city, school and other local taxation, and is subject to inheritance tax, all as provided by the law of the State of Missouri;" that "the business (of deceased in St. Louis) consisted of possessing, investing and reinvesting said property and the income therefrom, which business was conducted there by said deceased, Homer L. Meyers, by himself and through his agents;" and that "all of said property was so held in Missouri under a collusive and fraudulent agreement between said Homer L. Meyers, deceased, and said defendant, First National Bank in St. Louis, to avoid the payment of taxes thereon either in the State of Illinois or in the State of Missouri, and was not returned for taxation either in the State of Illinois or in the State of Missouri."
As further appears from the petition, the administratrix on June 23, 1934, filed an affidavit under the provisions of Sec. 273, R.S. 1929 (1 Mo. Stat. Ann. 172) and sought an order of the Probate Court of St. Louis to remove the property from Missouri. Plaintiff proceeded in the probate court by citation to discover and obtain the property held by defendant bank but later dismissed that proceeding. Plaintiff claimed that taxes were due the State, schools and city on this property, including inheritance taxes, but on information furnished to the Treasurer and Attorney General of Missouri, an order was made by the Treasurer authorizing the property to be withdrawn from the State without paying inheritance taxes. Plaintiff stated that this information "was intended to mislead and did mislead the State Treasurer." Thereafter, however, the "Judge of the Probate Court made and entered his order vesting title in the property" in the administratrix, upon the authority of Sec. 273, R.S. 1929 (1 Mo. Stat. Ann. 172). Plaintiff, in the later part of his petition, attacks the constitutionality of this section on several grounds.
Plaintiff's position is that, when the public administrator files the notice required by Sec. 302, R.S. 1929 (1 Mo. Stat. Ann. 192), "the title to the personal estate vested" in him; that he is then "in the same status as any other administrator;" that "the only way he can be divested of his authority (and title to the estate property) is; first, by removal (under provisions of Sec. 43, R.S. 1929 (1 Mo. Stat. Ann. 27); second, resignation; third, the filing of a will by the deceased; and fourth, death;" and that "there is no provision or principle of law by which the title of the public administrator and his correlative right to possession can be divested by Sec. 273." Thus it seems that plaintiff's contention is that the right to administer upon an estate, in such circumstances as this, must depend upon the result of a race to the court house, between the public administrator and the widow, to get the necessary papers filed. Furthermore, plaintiff's position clearly is that the determination, of whether or not the grounds for his authority to administer on any particular estate exist (under Sec. 299, R.S. 1929, 1 Mo. Stat. Ann. 189), is to be solely and finally made by the public administrator himself, and that, when he indicates the result thereof by filing notice, his decision is conclusive and not subject to any review whatever. It is this claim that defendants challenge on constitutional grounds as to the probate court's jurisdiction.
Plaintiff relies on Troll v. Third National Bank, 278 Mo. 74, 211 S.W. 545, but that case, which allowed a public administrator, as ancillary administrator of a foreign estate, to recover possession of stock in a Missouri corporation, was decided before the enactment of Sec. 273. [See Lohman v. Kansas City Southern Ry. Co., 326 Mo. 819, 33 S.W.2d 112.] Moreover, the petition in the Troll case alleged the public administrator to be "duly appointed and qualified as ancillary administrator," and not merely, as here, that he had "filed his notice in the office of the Clerk of the Probate Court" without taking actual possession of anything. [See In re Estate of Brinckwirth, 268 Mo. 86, 186 S.W. 1048; State ex rel. Riesmeyer v. Holtcamp, 273 Mo. 124, 200 S.W. 294.] Sec. 299, R.S. 1929 (1 Mo. Stat. Ann. 189), which authorizes the public administrator to take charge of estates in certain instances (and of which action he is required to give notice by Sec. 302, R.S. 1929; 1 Mo. Stat. Ann. 192), also authorizes the probate court to make an order for him to do so, in which case he is not required to file such notice. The allegations in the Troll case indicate that there was some order or appointment therein. Furthermore, the Troll case is not authority for saying that a public administrator has such unlimited powers, as plaintiff claims, because it says that the judgment of the public administrator in "determining to take charge of the Missouri estate (of a foreign decedent) could not be questioned elsewhere than in the probate court;" that to question it elsewhere would be a collateral attack; and that "the determination of whether or not he is rightfully acting in a given estate is a matter of (for) the probate court." The court cited as authority McCabe v. Lewis, 76 Mo. 296, which definitely so holds, the court saying that "while the public administrator may, in the first instance, act on his own judgment in taking charge of an estate, his determination is by no means final and conclusive of the question of his authority to do so." [See also Hollingsworth v. Jeffries, 121 Mo. App. 660, 97 S.W. 632; Sec. 305, R.S. 1929, 1 Mo. Stat. Ann. 193; and 2 Limbaugh's Missouri Practice, 514, sec. 1005.]
The constitutional reason why this must be true was stated by this court in Grone v. Troll (In re Estate of Brinckwirth, 268 Mo. 86, 186 S.W. 1048); namely, this amounts to a claim that the public administrator and the probate court "have concurrent jurisdiction in the matter, and the first in the race to act excludes the jurisdiction of the other." This court held that the public administrator cannot have such concurrent jurisdiction for he is a mere administrative officer, and because of the constitutional provision for separation of powers of government into three distinct departments (Art. 3, Const. of Mo.), the Legislature "could not invest him with authority which the Constitution had expressly declared to be judicial, and had invested in a judicial office of its own creation," namely, the probate court. [By Sec. 34, Art. 6, Const. of Mo.] Therefore, we hold that it would be inconsistent with this principle of separation of powers, into such departments, for such acts of this administrative officer to be completely free from any judicial review, and that our Constitution places the authority for such review in the probate court.
In the petition before us it is stated that the probate court has decided this question against plaintiff, by holding in favor of the right of the widow to administer this estate here, in the manner provided by Sec. 273, by reason of being the foreign domiciliary administratrix, and has by its order vested title to the property in her. This is also necessarily a holding that she has complied with all essential requirements of Sec. 273. Therefore, this suit (stating no grounds of direct attack on this judgment of the probate court) is a collateral attack on such judgment. It could only be successful, if, as plaintiff claims, this judgment is based upon the authority of an invalid unconstitutional statute. As to this, plaintiff makes several contentions based upon due process of law and equal protection of law clauses of the State and United States Constitutions. [Sec. 30, Art. 2, Const. of Mo.; Sec. 1, 14th Amendment, Const. of U.S.] [3] It is sufficient to say that, if plaintiff does in fact raise any constitutional questions, by these allegations of his petition (see State ex rel. Volker v. Kirby, 345 Mo. 801, 136 S.W.2d 319), the facts stated show that he is in no position to do so. This is because he was only indirectly affected by the future operation of Sec. 273, and never had any vested rights in the property of this estate or to administer upon it. His authority to ever do so, in any case, came from the Legislature, which created his office; and the Legislature could certainly change it or take it away, in whole or in part, as to future estates or rights coming into existence after it did so. [See Citizens Mut. Fire Lightning Ins. Soc. v. Schoen (Mo.), 93 S.W.2d 669; State ex rel. Equality Sav. Bldg. Assn. v. Brown, 334 Mo. 781, 68 S.W.2d 55, and cases cited; Kingshighway Presbyterian Church v. Sun Realty Co., 324 Mo. 510, 24 S.W.2d 108; State ex rel. Missouri State Board of Agriculture v. Woods, 317 Mo. 403, 296 S.W. 381; and the many other cases cited in 7 Mo. Digest, 254-257, sec. 42.] The enactment of Sec. 273 was such a change as to plaintiff's authority by limiting the situations in which it could be exercised.
Likewise, as shown by these authorities, plaintiff cannot raise objections, based upon violation of the Constitutional provision for uniform procedure in probate courts (Sec. 35, Art. 6, Const. of Mo.), on the ground that this adversely affects the interests of resident creditors, because he is not a creditor and is not directly affected by the provisions, of Sec. 273, with regard to creditors. Neither could he be heard to complain as to the effects of this section upon the collection of city, school or State taxes on the property of this estate, or the estate of other nonresident decedents, since he is neither a tax collector nor charged with any duties with regard to collecting these taxes. Sec. 273 puts the burden upon the foreign representative of the estate to make a showing "satisfying such probate court (not the public administrator) that all amounts due this State on account of taxes have been paid." It is, therefore, immaterial so far as plaintiff's rights are concerned where the situs of this property is for purposes of taxation. With regard to State inheritance taxes, plaintiff states that the officers charged with the duty of determining liability for and collection of such taxes (State Treasurer and Attorney General) have already acted to make a finding against such liability in this case. Plaintiff points to no statute giving him any authority to review the acts of these State officers, whether they are misled as to law or facts or not. The contentions plaintiff makes as to the jurisdiction of the probate courts, under the provisions of Sec. 34, Art. 6 of our Constitution, and his right to make such a collateral attack in the circuit court upon its judgment, must therefore be ruled against plaintiff. Certainly the subject matter, covered by Sec. 273, clearly comes within the limits of the matters placed in the jurisdiction of the probate court by that section of the Constitution, and when the probate court has ruled such a question its judgment, not appealed, is final.
The judgment is affirmed. Bradley and Dalton, CC., concur.
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.