Wolf v. Sun Insurance

75 Mo. App. 306, 1898 Mo. App. LEXIS 429

• Court: Missouri Court of Appeals
• Decided: May 2, 1898
• Status: Published

Opinion

Ellison, J. —

AadmSistraetoSr" Plaintiff, as administrator of the estate of Lena Wolf, sued defendant and recovered judgment against it on a policy of fire insurance issued to Louis Rein. The policy had indorsed thereon the words: "Loss, if any, payable to Prank Wolf, administrator, as his interest may appear.” Plaintiff’s claim is based on the fact that his intestate had a deed of trust on the property insured, given by Rein. The answer denied that plaintiff was the legal administrator of the estate and denied that he was such administrator by virtue of the laws of Missouri and alleged that if he was administrator of said estate he was such by virtue of the appointment of some other state and that he had not capacity to sue in the courts of this state. There was no proof that plaintiff was administrator under appointment by the laws of this state. And defendant, in consequence, makes the point that its demurrer to the evidence ought to have been sustained. We think the point well made. If plaintiff was a foreign administrator he could not, as such, maintain the action in the courts of this state. Naylor, Adm’r, v. Moffat, 29 Mo. 126; In re Estate of Ames, 52 Mo. 290; McPike v. McPike, 111 Mo. 216.

The contract sued on here may, for present purposes, be considered the agreement to pay the loss to plaintiff, as administrator (it is so stated in plaintiff’s reply). And being a contract made with plaintiff since the death of his intestate he could sue on it in his own name. Rittenhouse v. Ammerman, 64 Mo. 197, 199; Block v. Dorman, 51 Mo. 31, 32; Nicolay v. Fritschle, 40 Mo. 67; Mossman v. Bender, 80 Mo. 579, 584; Cook’s Ex’r v. Holmes, 29 Mo. 61, 64; Woodbridge v. Draper, 15 Mo. 470, 472; Hall v. Harrison, 21 Mo. 227.

But the difficulty with the position taken by plaintiff, as applicable to this case, is that he did not sue in his own name. The body of the petition discloses that he sued and seeks to recover in his representative capacity, and hence what he might have done is of no present concern. The reply does not aid plaintiff. On the contrary it emphasises the point against him. It is there alleged that the insurance was made payable to him as administrator. The further statement of the reply that plaintiff was suing as trustee of an express trust, is a mere assertion or conclusion of plaintiff’s in the face of the petition itself.

“A :eslop' 2. It is sought to nullify the force of defendant’s objection to the right of plaintiff to sue in the manner he has, by a plea of estoppel. Passing by any question of the efficiency of an estoppel to qualify one to sae to the courts of this state who is disqualified by the law, we rule the point against plaintiff on the ground that the contract can not be construed as recognizing plaintiff as the administrator under the laws of any particular state. By recognizing plaintiff as administrator, non constat that he-is an administrator in Missouri, or that the suit should be brought in Missouri, why are we not at as much liberty to suppose that the parties meant the recognition of plaintiff as administrator to apply to the state of, his appointment!

“tagfpeution. owneisinp. 3. The petition was insufficient' in not alleging ownership in Rein. Clevinger v. Ins. Co., 71 Mo. App. 73; Rabrick v. Ins. Co., 48 Mo. App. 393, The judgment is reversed and cause remanded.

All concur.