On November 12, 1985, Leslie Eugene Widmeyer, a resident of California, died intestate in that state. He was survived by a half-brother, Harry E. Widmeyer. On January 17, 1986, Harry E. Widmeyer filed, in the Probate Division of the Circuit Court of Greene County, an application for letters of administration in the Estate of Leslie E. Widmeyer, Deceased. On the same date the Missouri court entered an order granting "Supervised Letters of Administration" and issued such letters to Harry E. Widmeyer.
On May 9, 1986, Katherine B. Alkema, styling herself "Administrator (sic) of the Estate of Leslie Eugene Widmeyer Under Appointment by the Superior Court of the California County of San Diego," as "plaintiff," filed, in the Missouri court, a document entitled "Petition to Determine Title to Property." The contents of that petition will be set forth later. Named as defendant was "Harry E. Widmeyer, Individually
The trial court, following a hearing on the motion, entered its order dismissing the petition. The order did not recite the ground or grounds on which it was based. The record on appeal contains only the legal file. There is no transcript of the evidence, if any, adduced at the motion hearing. Plaintiff appeals.
Plaintiff's first point is that the trial court erred in granting the motion to dismiss on the ground that plaintiff had no standing to sue in that plaintiff had standing pursuant to § 472.013.
The caption of the petition listed the parties, respectively, as "plaintiff" and "defendant," as indicated above. It should be noted that, although Widmeyer was designated as defendant "Individually and as Personal Representative, ..." the caption designated the plaintiff only in her capacity as administrator (sic) and not individually. Plaintiff appeals only in her representative capacity.
The petition, which was verified by Katherine B. Alkema, alleged: Plaintiff is the California administrator of the estate of Leslie E. Widmeyer, deceased; decedent died intestate in San Diego County, California on November 12, 1985, having been a resident of California since the 1940's; decedent "was survived by a half-brother, the defendant Harry E. Widmeyer, and the plaintiff Katherine B. Alkema, who has a property interest in the estate of the decedent as his nonmarital partner"; at the time of his death decedent owned certain assets which have been reduced to the possession of the defendant; the assets are:
Item Asset ValueA GNMA Certificate No. 02171807SF $38,079.11 B Bank account, Boatmen's National Bank, Springfield, Missouri 1,586.27 C Bank account, Security Pacific Bank, San Diego, California 9,340.13 D Bank account, Security Pacific Bank, Panorama City, California 5,347.67 E 1984 Jaguar automobile 34,580.20 F Tangible personal property, including gold watches and diamond rings 10,000.00
The petition further alleged: Defendant physically removed Item A "from the former possession of decedent in California" and transported it to Missouri where it is inventoried in the Missouri estate; defendant inventoried Item B as an asset of the Missouri estate; Item B has a "Missouri situs"; defendant obtained possession of Item C and Item D by filing an affidavit pursuant to § 630 of the Probate Code of California (Small Estates Procedure) and converted same to his own use and did not "list them" in the Missouri estate; defendant secured transfer of the title to Item E pursuant to § 5910 of the California Vehicle Code, "wherein he represented that he would otherwise be entitled to transfer under § 630 of the Probate Code of California"; defendant removed Item F from the former residence of decedent.
The petition further alleged: All of the foregoing property is now in the possession of the defendant, "either individually or as claimed personal representative-sole heir," and is properly the property "of plaintiff
The prayer of the petition was that the court determine that "plaintiff is entitled to the title to and possession of all of the above-described property pursuant to the provisions of § 473.340,
Significantly, plaintiff did not file with the Probate Division of the Circuit Court of Greene County an authenticated copy of her appointment as California administrator or a copy of any official bond which she has given. It should be noted also that the petition makes no claim that the California administrator ever had possession of any of the described property.
Missouri applies the general rule that an administrator, appointed in state A, cannot sue in his representative capacity in state B in the absence of a statute in state B authorizing him to do so. Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504, 506 (1940); In re Thompson's Estate, 339 Mo. 410, 97 S.W.2d 93, 96 (1936); Wells v. Davis, 303 Mo. 388, 261 S.W. 58, 61 (1924); Naylor's Adm'r v. Moffatt, 29 Mo. 126, 128-129 (1859); Bank of Seneca v. Morrison, 200 Mo.App. 169, 204 S.W. 1119, 1122 (1918); Hill v. Barton, 194 Mo.App. 325, 188 S.W. 1105, 1110 (1916); Miller v. Hoover, 121 Mo.App. 568, 97 S.W. 210 (1906); 34 C.J.S. Exec. and Adm'r, § 1008, p. 1256; 31 Am. Jur.2d, Exec. and Adm'r, § 774, p. 312; Goodrich and Scoles, Conflict of Laws (4th Ed.), §§ 185-186, p. 357. Letters of administration have no extraterritorial effect. State v. Cross, 314 S.W.2d 889, 894-895 (Mo. banc 1958); Demattei v. Missouri-Kansas-Texas R. Co., supra, 139 S.W.2d at 506; In re Thompson's Estate, supra, 97 S.W.2d at 96; Wells v. Davis, supra, 261 S.W. at 61; Hartnett v. Langan, 282 Mo. 471, 222 S.W. 403, 409 (1920); Bank of Seneca v. Morrison, supra, 204 S.W. at 1122; Hill v. Barton, supra, 188 S.W. at 1110; Miller v. Hoover, supra, 97 S.W. at 211; Emmons v. Gordon, 140 Mo. 490, 41 S.W. 998, 1001 (1897); McPike v. McPike, 111 Mo. 216, 20 S.W. 12, 13 (1892); First Nat. Bank of Brush, Colo. v. Blessing, 231 Mo.App. 288, 98 S.W.2d 149, 152 (1936); Naylor's Adm'r v. Moffatt, supra, at 128-129. It has been said that a foreign administrator, seeking to recover on a debt to his decedent, lacks legal capacity to sue. Gregory v. McCormick, 120 Mo. 657, 25 S.W. 565, 566 (1894).
One reason underlying the general rule is "that to permit the foreign administrator to sue might result in the exhaustion or diversion of the assets of the estate to the injury of local creditors." Demattei v. Missouri-Kansas-Texas R. Co., supra, 139 S.W.2d at 506.
With respect to a claim belonging to the decedent, the court said, in In re Thompson's Estate, supra, 97 S.W.2d at 97:
In Miller v. Hoover, supra, 97 S.W. at 211 the court said:
In Crohn v. Clay County State Bank, 137 Mo.App. 712, 118 S.W. 498 (1909), the Missouri administrator of the estate of William Lowe, deceased, brought an action in Missouri against a Missouri bank seeking recovery of a deposit left by deceased with the bank. Lowe, a resident of Iowa, died leaving Missouri assets in addition to the involved deposit. Letters of administration on Lowe's estate were granted in Iowa. Defendant paid the Iowa administrator the amount of the involved deposit and relied upon that payment as a defense to the action by the Missouri administrator. Rejecting that defense and affirming a judgment in favor of the Missouri administrator, the court said, 118 S.W. at 499:
In the case at bar, so the petition claims, the alleged misconduct of defendant occurred in California after the death of the decedent. There is no allegation that any of defendant's conduct took place during the life of the decedent.
In Turner v. Campbell, 124 Mo.App. 133, 101 S.W. 119, 123 (1907), the court, quoted with approval the following language in 1 Woerner's Administration Law (2d Ed.) § 361:
In the case at bar the assets of the decedent, including the assets moved to Missouri from California, have never been in the possession of the California administrator. All of the assets were first reduced to possession by defendant, although he may have obtained possession of the California assets prior to his appointment as the Missouri administrator.
Restatement, Second, Conflict of Laws § 320, reads:
In the case at bar, the facts fit Subsection (1). Under the facts here, Subsection (2) does not come into play, as an exception to Subsection (1), because the California assets were not wrongfully taken from the possession of the California administrator. The petition makes no claim that the California administrator had reduced any of the California assets to possession before those assets were brought to Missouri. Under the foregoing authorities, in the absence of a Missouri statute, plaintiff had neither a right to relief nor standing to assert such a right.
Is the prosecution of the instant petition by the California administrator authorized by a Missouri statute or statutes? For the
Sections 473.665 through 473.694 deal with assets of nonresidents. Administration proceedings in Missouri with respect to property of a nonresident decedent which is within the jurisdiction of the state are original proceedings conducted under the authority of Missouri solely "and are independent of and not ancillary to proceedings ... in any other state...." § 473.668. Missouri courts have jurisdiction over all tangible and intangible property of a nonresident decedent "having a situs in this state." § 473.671. Other relevant portions of §§ 473.665 through 473.694 are set forth below.
Plaintiff argues that the Missouri court lacked jurisdiction over the California assets because they did not have "a situs in this state." See § 473.671, supra. Such an argument was rejected by the New York Court of Appeals in a case factually similar to the one at bar.
In Matter of Accounting of Hughes, 95 N.Y. 55 (1884), a Pennsylvania intestate died in Pennsylvania leaving no assets in New York but leaving assets in Pennsylvania. After the intestate's death, one Hughes brought the assets to New York and letters of administration were issued to him by the surrogate of Kings County, New York. Later an administrator was appointed in Pennsylvania. On final settlement of the accounts of the New York administrator, the Kings County surrogate, on the petition of the Pennsylvania administrator, directed the New York administrator to deliver the assets to the Pennsylvania administrator. The decree of the surrogate was affirmed by the supreme court and the New York administrator appealed to the court of appeals.
In upholding the appeal of the New York administrator, who attacked that portion of the surrogate's decree directing him to deliver the assets to the Pennsylvania administrator, the court of appeals said, at p. 60:
After "conceding the illegality of removal of the assets from Pennsylvania," the court of appeals said, at p. 63:
Review of the Missouri statutes pertaining to the estates of nonresidents discloses that there is no authority for plaintiff, who purports to be the California administrator, to sue in her representative capacity in Missouri under the circumstances here.
Section 473.677 authorizes a domiciliary foreign personal representative, who has complied with § 473.676, to "maintain actions and proceedings in this state." The California administrator has not complied with § 473.677 in two respects. She has not filed in the Probate Division of the Circuit Court of Greene County an authenticated copy of her appointment and a copy of any official bond she has given. Further, there is a local administration pending in Missouri so such a filing could not now be made.
Section 473.678 permits a domiciliary foreign personal representative to exercise the power under § 473.677, which includes the power to maintain actions and proceedings in this state, "only" if there is no administration, or application therefor, pending in Missouri.
To permit the California administrator to maintain the instant proceeding would violate the express language of § 473.678. The instant proceeding was, of course, instituted after the Missouri administrator had been appointed.
Neither § 472.013, set forth in footnote 1, nor § 473.340, set forth in footnote 2, mentions, specifically, a foreign administrator. Indeed § 472.013 does not mention an administrator at all. That statute refers to "any person injured." Section 472.010 reads, in pertinent part: "When used in this code, unless otherwise apparent from the context: `... 24. "Person" includes natural persons and corporations.'"
Any construction of § 472.013 or § 473.340 which would permit the maintenance of the instant action would be inconsistent with the express language of § 473.678 and § 473.677. The material portions of § 473.340 were enacted in 1973. Section 472.013 was enacted in 1980 as a part of the same senate bill which contained §§ 473.665 to 473.694.
Laughlin v. Forgrave, 432 S.W.2d 308, 313 (Mo. banc 1968).
The trial court properly sustained respondent's motion to dismiss. In so ruling, this court holds merely that the instant proceeding in the Missouri court may not be maintained by the California administrator. Whether other remedies are available to the California administrator in California, or to other persons in Missouri, is not decided. Nothing in this opinion precludes the trial court from invoking, if circumstances warrant, the discretion afforded by § 473.675(4), set forth in footnote 3.
The judgment is affirmed.
HOGAN, J., concurs.
MAUS, J., concurs in the result and files concurring opinion.
MAUS, Judge, concurring.
I concur in the result. "Appellate review is limited to those issues presented in defendants' points and they alone need be and are considered." Smith v. Welch, 611 S.W.2d 398, 399 (Mo.App.1981). "It is not the function of the appellate court to serve as advocate for any party to an appeal. That is the function of counsel. It would be unfair to the parties if it were otherwise." Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). "Assignments of error set forth for the first time in the reply brief do not present issues for appellate review, accordingly the contention is denied." Application of Gilbert, 563 S.W.2d 768, 771 (Mo. banc 1978).
The plaintiff's first point is: "The trial court erred in granting the motion to dismiss on the ground that plaintiff had no standing to sue in that plaintiff had standing pursuant to Missouri Probate Code Section 472.013." Section 472.013 in part provides:
To support this point the respondent argues as follows:
Plaintiff's second point is that she did "adequately state a claim for misrepresentation." In argument under this point, the plaintiff again relies upon the misrepresentation in California. This is the sole allegation of misrepresentation in her petition.
The plaintiff's third point is that the trial court erred in dismissing the petition because the probate division did not lack subject matter jurisdiction to impose a constructive trust. Again, under this point the plaintiff argues that a constructive trust is a proper remedy based upon the alleged misrepresentation in California.
It is apparent that the only error asserted by the plaintiff is that the dismissal of her petition was contrary to § 472.013.
By its own terms, § 472.013 is limited to proceedings "under this code", meaning the Probate Code of Missouri. Misrepresentation in California is not a basis for relief under that section. Nor does that section give the plaintiff standing to sue in the Probate Division of the Circuit Court of Greene County. Because plaintiff's points are without merit, I concur in the result.
However, I cannot concur in all of the observations in the principal opinion concerning the right of an administrator appointed in another state to maintain an action in Missouri. Sections 473.665 to 473.694 deal with the estates of nonresident decedents. Section 473.671 declares that "The courts of this state have jurisdiction
I recognize that, as stated in the principal opinion, numerous cases declare the common law general rule to be that an administrator appointed in one state cannot maintain an action in his representative capacity in another state and that Letters of Administration have no extraterritorial effect. I also acknowledge that Restatement (Second) of Conflicts §§ 320 and 321 (1971) support the principal opinion.
However, without an analysis of each of the cases referred to, it is sufficient to observe that in many of them the statement of the general rule is dictum. In re Thompson's Estate, supra. Further, in many others, the general rule is stated in respect to assets which had a situs in Missouri at the time of death. For example, see Crohn v. Clay County State Bank, supra. Also, it is significant that underlying many of those authorities was the proposition that an ancillary administration was subservient to a domiciliary administration. An example is the following Comment to § 321 of the Restatement (Second) of Conflicts:
The status of the administration of an estate in each state in which property of a decedent had a situs has changed. It is now generally recognized that administration proceedings with respect to property having a situs in a state "are original proceedings or procedures conducted under the authority of this state solely, and are independent of and not ancillary to proceedings or procedures in any other state or country." § 473.668. Also see Blum v. Salyer, 299 F.Supp. 1074 (W.D.Mo.1969); In Re Estate of Maslowe, 119 Ill.App.3d 776, 75 Ill.Dec. 361, 457 N.E.2d 151 (Ill. App. 2 Dist.1983); Estate of Wilson v. National Bank of Commerce, 364 So.2d 1117 (Miss.1978). It is generally held that situs is determined at the date of death. Curtiss v. McCall, 224 So.2d 354 (Fla.App. 1969); In Re Estate of Maslowe, supra; Matter of Estate of Jackson, 48 Ill.App.3d 1035, 6 Ill.Dec. 972, 363 N.E.2d 919 (1977). Further, it is declared that when appointed, the power of a personal representative relates to the date of death. Daughters of Jesus v. Gee, 153 Mont. 342, 457 P.2d 471 (1969); Kelly v. Smith, 7 Ohio App.2d 142, 219 N.E.2d 231 (1964). In respect to assets having a situs in a state appointing a personal representative, the common law general rule has been relaxed by decision and statute. For example see Crosson v. Conlee, 745 F.2d 896 (4th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985); In Re Estate of Maslowe, supra; Hossler v. Barry, 403 A.2d 762 (Me.1979); Saporita v. Litner, 371 Mass. 607, 358 N.E.2d 809 (1976); Estate of Pettit v. Levine, 657 S.W.2d 636 (Mo.App. 1983); In Re Estate of De Camillis, 66 Misc.2d 882, 322 N.Y.S.2d 551 (N.Y.Sur. 1971). Also see § 473.687 and § 507.020. Cf. Leflar, American Conflicts Law § 205 (3rd ed. 1977). The development of the law has been analytically developed in Blum v. Salyer, supra. It is for the reasons stated in the authorities last cited that I concur only in the result.
Section 472.013 reads:
"Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this code, or if fraud is used to avoid or circumvent the provisions or purposes of this code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than ten years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate."
"1. Any executor, administrator, creditor, beneficiary or other person who claims an interest in property which is claimed to be an asset of an estate may file a verified petition in the probate division of the circuit court in which said estate is pending seeking determination of the title, or right of possession thereto, or both. The petition shall describe the property, if known, shall allege the nature of the interest of the petitioner and that title or possession of the property, or both, are being adversely withheld or claimed....
3. Upon a trial of the issues, the court shall determine the persons who have an interest in said property together with the nature and extent of any such interest. The court shall direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto...."
"(4) Notwithstanding the requirements of this section that distributions during or at the conclusion of an administration shall be made as if the decedent were a resident, if the court finds that hardship to a foreign creditor would result therefrom or that the best interests of all persons having an interest in the estate would be forwarded by making a distribution to a foreign personal representative, the court may, in its discretion, order such distribution to the extent it finds necessary to avoid such hardship or to forward such interests."
Section 473.676 reads:
"If no local administration, or application or petition therefor, is pending in this state, a domiciliary foreign personal representative may file with a probate division of the circuit court in this state, in a county in which property belonging to the decedent is located, authenticated copies of his appointment and of any official bond he has given." (Emphasis added.)
Section 473.677 reads:
"A domiciliary foreign personal representative, who has complied with section 473.676, may exercise as to assets in this state all powers of a local personal representative and may maintain actions and proceedings in this state, subject to any conditions imposed upon nonresident parties generally. When acting in this state under this authority, a domiciliary personal representative has the duties and obligations of a local personal representative, except that he may pay or deliver personal property under section 473.691." (Emphasis added.)
Section 473.678 reads, in pertinent part:
"The power of a domiciliary foreign personal representative under section 473.677 ... shall be exercised only if there is no administration, or application therefor, pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under section 473.677, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate...." (Emphasis added.)