Pinet v. Pinet

*504 CAVE, J. This is a suit on a promissory note. Defendants’ answer 'is a general denial and a counterclaim. At the close of plaintiff’s evidence defendants offered an instruction directing a verdict for them, which was overruled. There was no further evidence and the court gave an instruction directing the jury to return a verdict for plaintiff on the note and on the counterclaim. Judgment was entered accordingly, and defendants appeal. The evidence discloses that on August 11, Í936, defendants executed the note in suit, payable to Frank L. Pinet or order, and due* five years after date. The defendants at all times here involved resided in Missouri and Fraák resided in Shawnee County, Kansas. On June 15, 1941, he died intestate in that county, leaving his widow, the plaintiff, and five children as his only heirs. No administration was had on his estate in Missouri or Kansas. But Section 29-2250, of the Kansas Statutes, provides that whenever a person has been dead for more than one year and has left property or any interest therein and no will has been admitted to probate nor administration had in that state, then any person interested in the estate may petition the court-of the county of decedent’s residence to determine the descent of any property owned by decedent. Section 59-2251, of the same code, provides that upon proof of such petition the court shall enter its decree assigning the property to the persons entitled thereto at the time of the decedent’s death pursuant to the law of intestate succession then in force. Under authority of such statute the widow (plaintiff in this case), on August. 12, 1942, filed her petition in the probate court of Shawnee County and the court entered a decree ordering “that the above described real estate and all other property within the state of Ka/nsas, and owned by the decedent at the time of his death . . . be. and the same is hereby assigned to and vested in the following named persons in the following proportions; . . . (Italics ours). Then follow the names of the widow and five children; the widow being assigned a one-half interest and each child a one-tenth interest. About a year prior to such order, the children had executed what is called a “Bill of Sale and Assignment of Personal Property,” conveying to plaintiff their interest- in and title to all the personal property owned by Frank Pinet at the time of his death. Plaintiff claims to be the owner and holder of the note in suit by virtue of such probate order and assignment. Defendants deny that such order and assignment convey any title to her. A number of assignments of error are made, but concededly the first vital question is whether the plaintiff is the legal owner and holder of *505 the note.' Defendants (appellants) contend that since they at all times resided in Missouri, the situs of the debt (the note) was in Missouri and not in Kansas and, therefore, the probate court decree did not and could not have the effect of conveying title \to property so situated in this state. If that contention is sound, it will not be necessary to discuss other assignments of error. Our courts have uniformly held that debts due from a Missouri debtor to a nonresident decedent are assets in Missouri. [In re Estate of Henry Ames, 52 Mo. 290; McCarty v. Hall, 13 Mo. 480; Becraft v. Lewis, 41 Mo. App. 546; Miller v. Hoover, 121 Mo. App. 568; Crohn v. Clay County Bank, 137 Mo. App. 712; Harnett v. Langan, 282 Mo. 471, 490.] A promissory note is merely evidence of a debt, and is not itself the debt. [Leavell v. Blades, 237 Mo. 695.] Since the early decision in McCarty v. Hall, supra, it has been uniformly held that a foreign administrator cannot, himself maintain an action upon a note given by a person living in this state to his intestate ; nor can such administrator endorse said note to a third person so as to give such endorsee a right of action in his own name. In disposing of the question, the court said, (484): “In this case, the debt due by Jacob Hall to Edward Wilbourn — Hall residing in this State and Wilbourn dying in Texas— . . . never was assets in the hands of the administrator in Texas, but remamed as goods and chattels in Missouri-. . . . ” (Italics ours.) The court quotes with approval pertinent language from a decision of the Supreme Court of Massachusetts in Jones v. Godwin, 3 Mass. R, 514; “Debts due the testator, at the time of his death, from persons residing in other states, are placed by law on the same ground as goods and chattels belonging to him and being in another state. Over these she, as executrix, deriving her authority under the law of Massachusetts, has no control. . . . ” (Italics ours.) In Becraft v. Lewis, supra, this court said, (551) : “The payor of the note resided in Missouri and, therefore, the situs of the asset was in this state notwithstanding the note itself was in Iowa.” The other cases, cited above, fully support this doctrine. Plaintiff cites and relies on the case of Morton v. Hatch, 54 Mo. 408. In that case the Supreme Court was discussing the question of whether the trial court committed error in sustaining a demurrer to the petition. The petition alleged that one Morton died testate in the State of Kentucky; that his will had been probated and his estate fully administered in that state, and the executor discharged; and under and by virtue of his last will and testament plaintiff was the sole legatee and devisee and entitled to all of his property; that there were no debts or liabilities due 'or accruing from the testator or his estate to any- person in the State of Missouri. The court properly held that the petition stated a good cause of action because the plaintiff *506 was claiming the debt under the will of the decedent. In- arriving at that conclusion, the court quotes with approval an opinion by Judge Story in Trecothick v. Austin, 4 Mason’s C. C. 16, wherein he said: “A will bequeathing personal estate conveys that property wherever it may be situated, if the- will is made according to the laws of the place of the testator’s domicile. And it has never been supposed that it was indispensable to the assertion of a title derived under such will, that there should be a probate in every place where such property was situated. It is only necesary where a party sues for it, not in his own right, but as the personal representative of the deceased.” This opinion in no way conflicts with the views above expressed. It does not change the rule governing the situs of personal property such as is involved here. But plaintiff urges that we must give full faith and credit to the judgment of a court of a sister state. Under our view of the issue, that question does not confront us. The judgment of the probate court of Kansas purports to assign and convey title only to property located within the State of Kansas, and since we conclude that the debt now in controversy was not property within that state, the decree could not convey and did not purport to convey title to any property situated in Missouri. It is held that, “The laws and courts of a State can only affect persons and things within their jurisdiction and both as to tlie administrator and the property confided.in him, the judgment in another State is res inter alois acta and is not even prima-fq,cie evidence of the debt. . . . ” [First National Bank v. Dowdy, 175 Mo. App. 478, 484; 27 L. R. A. 101, 111.] Our probate code, Article 10, chapter 1, Revised Statutes Missouri 1939, provides a method for administration of estates of nonresidents; and Sec. 272 thereof, as amended by the Laws of 1943, page 129, authorizes, under certain conditions, the transfer, payment or delivery of certain debt obligations located’ in this state, but no claim is made that the procedure required in this article was complied with or that plaintiff is asserting any right under said Sec. 272. We are also of the opinion that the plaintiff did not acquire title to this debt by the bill of sale and assignment executed by decedent’s children. The long-time rule in this State has been and is that the legal, title to the personalty of a decedent passes primarily to his executor or administrator, from whom the heirs or legatees receive it through’the process of administration. [Odom v. Langston, 173 S. W. (2d) 826, 351 Mo. 610, 624.] At the time the heirs executed their assignment they had no (legal) title to convey. [See State ex rel. v. Moore, 18 Mo. App. 406.] We conclude that the plaintiff was not the legal owner and holder of said debt at the time she filed this suit, and the trial court erred in directing verdict for her. *507 It is unnecessary to discuss other questions presented in the briefs. The judgment should be reversed. It is so ordered. All concur.