McPherson's Administrator v. McPherson

70 Mo. App. 330, 1897 Mo. App. LEXIS 285

• Court: Missouri Court of Appeals
• Decided: April 7, 1897
• Status: Published

Opinion

Bond, J.

Plaintiff’s intestate and defendant were married in St. Louis on February 20, 1895, the defendant husband being then a citizen of New York and residing at Rochester in that state. Prior to her marriage the wife was a resident of this state. On February 25, 1895, she gave her check for $1,900, requesting the bank upon which it was drawn, in exchange therefor, to deliver to her husband a New York draft. This was done and defendant returned to Rochester, New York, were he cashed said draft. There was evidence that the wife sent the money, represented by said draft, to New York, to be used in improving the home which she and defendant would occupy after their marriage. The evidence was undisputed that she intended after her marriage to move to Rochester, New York, where her husband lived. It was arranged that she would remain a short time in St. Louis disposing of her business affairs, and that her husband would return to St. Louis for her in the early spring and take her to New York. While she was arranging some business affairs she was taken sick, and died on the twenty-second of March, 1895. Plaintiff qualified as her administrator in Missouri, and defendant took out letters on her estate in New York. Plaintiff as administrator sued defendant for the amount of the New York draft. The answer pleaded the domicile of plaintiff’s intestate in New York at the time of her death in bar of the present action. There was a judgment for defendant, from which plaintiff has appealed.

Husband and wife: domicile or djlivbry of draft by wife in Mis - som-i to husband domiciled in New tradonTdomicdie domicam*lex “The principle is so well established that it will hardly be questioned by any one that personal or movable property is governed by the law of the domicile of the owner, wherever it may be situated, ' and this law, of. course, changes with his domicile.” Minor v. Cardwell, 37 Mo. loc. cit. 356; 5 Am. and Eng. Ency. of Law, p. 868, et seq. It is admitted that defendant’s domicile at the time of his marriage was in Rochester, New York. By his intermarriage his wife, eo instanti, acquired the same domicile. The fact that she remained a short time in Missouri for the purpose of winding up her business, and that she was taken suddenly ill and died while so engaged before her actual removal to New York, in nowise affected the question of her legal domicile in that state from the time of the consummation of her marriage with one of its resident citizens. The transfer by her of a 'portion of her personal property to New York, in the form of a draft to her husband, rendered it an asset to be disposed of upon administration of her estate * *■ in New York. The record shows that such administration has been taken out, and the defense made by the answer herein, that the money so canied to New York must be accounted for to the personal representative of the wife in that state, is well taken, and bars a recovery in the present action. It is no answer to this conclusion, to say that the Missouri statutes provide for the administration of the real and personal estate of nonresidents. Revised Statutes of 1889, sections 261 and 262, et seg. The statutes in question were made for the purpose of authorizing administration upon the property and effects of nonresidents which at the time of their decease were found in this state. These statutes do not relate to property and effects not within the jurisdiction of our courts. They also contemplate that the administration had here shall be ancillary to one had at the domicile of the nonresident. Hence they provide for the transmission to the primary administration of the residue of the personal estate left after the winding up of the auxiliary administration conducted in Missouri.

Neither does the case of McGuire v. Allen, 108 Mo. 403, bear on the question under consideration. That case decides that the mere blank indorsement by the wife of a check for money due her and delivery of the check to the husband, does not constitute a sufficient written assent within the meaning of the statute to work a reduction to possession of the money represented by the check. In the case at bar, had the domicile of the husband and wife been in Missouri, the decision cited would have been in point. As their domicile was in New York, under the law, making the domicile of the husband that of the wife, the decision has no bearing on the title to the money in that state at the time of the death of the wife. Our conclusion is that the judgment should be affirmed. It is so ordered.

All concur.