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07/05/83 ESTATE MARGARET M. PETTIT v. ARNOLD D.

July 5, 1983

IN RE THE ESTATE OF: MARGARET M. PETTIT, DECEASED, ANDREW CULBERTSON AND ALEX CULBERTSON, APPELLANTS-CROSS-RESPONDENTS
v.
ARNOLD D. LEVINE, PERSONAL REPRESENTATIVE, WILLIAM F. CULBERTSON AND FREDERICK M. CULBERTSON, RESPONDENTS-CROSS-APPELLANTS, MERCANTILE TRUST COMPANY, N.A., PERSONAL REPRESENTATIVE



From the Circuit Court of Monroe County; Civil Appeal; Special Judge John D. Ogle.

Motion for Rehearing Overruled, Transfer Denied September 15, 1983. Application Denied October 18, 1983.

Before Snyder, P.j., Dowd, Gaertner, JJ.

The opinion of the court was delivered by: Dowd

This appeal and cross-appeal stem from an order and judgment of the circuit court of Monroe County, Missouri entered after it first granted respondent's motion to vacate a temporary restraining order which directed the Missouri representative to take possession of certain securities and then ordered the securities returned to the State of Florida for administration and then secondly construed the testatrix's will to include appellants as residuary legatees.

Margaret M. Pettit (hereinafter testatrix) died a resident of Florida on December 17, 1980. Among her assets were the subject of this appeal, namely certain stock certificates, bonds and a bank draft (hereinafter referred to as the securities). Appellants Cross-Respondents Alex and Andrew Culbertson are the testatrix's sons and residents of the State of Missouri. Respondents-cross-appellants William F. and Frederick M. Culbertson are also the testatrix's sons and are residents of the State of Florida. At the time of the testatrix's death the securities were located in the State of Florida. On January 2, 1981 Alex and Andrew naming all four sons as heirs filed an application for letters of administration on the testatrix's estate in Missouri respresenting to the court that their mother had died intestate. These letters were issued on January 5, 1981 appointing Alex and Andrew as administrators. Alex and Andrew then proceeded to the State of Florida, took possession of the securities and returned them to Missouri. Although they claim to have removed the securities on January 15, 1981, the record reflects through Andrew's own testimony that the securities were removed on Friday of the week in question which was January 16, 1981.

On that same date the testatrix's will was admitted to Probate and a petition for administration filed in Pinellas County, Florida by Arnold D. Levine (hereinafter Levine), and letters were issued to him that same day. This proceeding named only William and Frederick as beneficiaries under the will.

Thereafter, upon learning that the securities were in Missouri, Levine instituted an action in replevin and for injunctive relief in Hillsborough County, Florida. As a result, on February 17, 1981, the court issued a mandatory injunction ordering Andrew and Alex to return the securities to Levine. Also on this date the Missouri court, upon learning of the testatrix's will, revoked the letters previously issued to Alex and Andrew. That court then appointed the Mercantile Trust Company National Association as the Missouri personal representative.

Alex and Andrew were served with the February 17, 1981 injunction on March 4, 1981 and on March 5, 1981, without informing the Missouri court of this Florida court order, sought and received an order form the Missouri probate court directing that the securities remain in Missouri.

On March 26, 1981 the Florida court held that Alex and Andrew in contempt for their continued refusal to obey the court order and return the securities to Levine. The Hillsborough County replevin action and the Pinellas County estate action were then joined and Alex and Andrew both in person and by their attorney appeared and participated in the trial on the question of the proper person to possess the securities. The issue concerning the testatrix's domicile was tried on August 24, 1981. On August 7, 1981 the Florida court entered its judgment and found that Levine was entitled to possession of the securities which had been removed from the State of Florida on January 16, 1981, and entered a mandatory injunction reaffirming the February 17, 1981 injunction. Levine was also granted summary judgment on his petition for determination of beneficiaries finding William and Frederick the sole residuary legatees intended under the will. Andrew and Alex appealed these judgments to the District Court of Appeals in Florida and they were dismissed for their continued failure to comply with the court order directing them to return the securities.

On January 18, 1982, cross-motions for summary judgment were heard in the probate court in Monroe County, Missouri, on the issues relating to the rightful possession of the Securities and the determination of beneficiaries under the will. Based on the voluminous record accumulated in the Florida proceedings, the Missouri lower court entered first, a judgment stating that the August 7, 1981 Florida court judgment was entitled to full faith and credit, that the previous order directing the securities remain in Missouri be dissolved, and that the securities be returned to Levine in Florida. Alex and Andrew appeal from this portion of the judgment. The court then proceeded to construe the will and entered an order finding that Alex and Andrew were intended as residuary legatees under the will. *fn1 William and Frederick cross-appeal from this portion of the judgment.

We will first address Alex and Andrew's appeal wherein they set forth two points for our consideration, claiming in essence that the Florida judgment requiring that the securities be returned to Florida was not entitled to full faith and credit and that the Missouri court and not Florida is the proper place with jurisdiction to administer the securities. We disagree and hold that the Florida judgment was entitled to full faith and credit and that the Missouri court was without jurisdiction to administer the securities as the proper jurisdiction lay in Florida.

Alex and Andrew cite several cases for the proposition that the situs of personal property at the date letters of administration were issued affixes movable property to a specific jurisdiction, and if such property is moved before letters are issued so as to give a local personal representative a right to possession, the situs of the property for purposes of probate administration moves also. Turner v. Campbell, 101 S.W. 119 (Mo. App. 1907); Wyatt v. Wilhite, 183 S.W. 1107 (Mo. App. 1917).

We are presented with a difficult factual situation in this case with little or no case law to support either appellants' or respondents' contentions. However, the record before us does reflect several facts which persuade us to believe that Florida is the proper forum to administer the securities in question. First, it is undisputed the securities were in Florida on the date of the textatrix's death. Secondly, Andrew's own testimony reveals that the securities were removed on Friday of the week in question which was January 16, 1981. This clearly refutes Alex and Andrew's argument that the securities were removed on January 15, 1981, and establishes the fact that, as letters were issued to Levine on January 16, 1981, the situs of the property for proper administration is the State of Florida. Alex and Andrew's argument seems to concede that if administration proceedings had begun, the correct situs woUld be Florida. We cannot find to the contrary. Section 473.671 RSMo 1978 provides that jurisdiction over debts, rights and choses in action embodied in legal instruments lies in the situs where such legal instruments are located. While this statute fails to indicate whether situs at the time of death or situs at the time administration proceedings are instituted will control, it clearly recognizes the right of a foreign state to administer assets found within its borders. As letters were issued to Levine on January 16, 1981, when the securities were still in the State of Florida and we need not decide whether § 473.671 RSMo 1978 intended the situs at the time of death to control. Therefore, the Missouri court correctly decided Florida was the proper forum in which to administer the securities.

Furthermore, we also hold that the August 7, 1981 Florida judgment finding that Alex and Andrew removed the securities on January 16, 1981 and ordering them returned to Florida, was entitled to full faith and credit under U. S. Const., Art. IV, ยง 1. This section precludes any inquiry into the merits of the cause of action, the legal consistency of the decision, or the validity of the legal principles Upon which the judgment is based, and requires Missouri courts to give full faith and credit to judgments of the courts of sister states unless it can be shown that there was a lack of jurisdiction over the subject matter, failure to ...


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