USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 4
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94
26
THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
there are thirty foreign fire insurance companies organized under the laws of foreign govern- ments, authorized to issue fire insurance policies in Missouri. There are only two regular stock life insurance companies organized under the laws of this State, doing business in this State; and thirty-six companies organized under the laws of other States authorized to do life insurance business in this State. There are four assessment life companies organized under the laws of this State doing business in this State, and twenty-eight such companies, organ- ized under the laws of other States qualified and doing business in this State. The above do not include beneficiary societies.
In view of our liberal laws for the organization of insurance companies it is strange that such a large per cent of the total business is done by foreign corporations. It is man- ifest that money paid to non-resident companies is withdrawn from circulation in this State, and invested and used in other business centers. It would seem, therefore, an advantage to the people of this State that premiums should be paid to home, rather than to foreign companies. Home companies afford employment to many persons at their principal offices in the State, and such employes increase the population and trade of the towns in which they reside. Moreover, the capital accumulated by home companies remains in the State and bears its part of the burden of the support of the government, while that paid to non- resident companies does not.
In 1864, a general law was approved authorizing the organization of savings banks as corporations. Prior to that time a general law had been passed for the organization of incorporated fund companies. These two acts were subsequently consolidated and, with certain amendments, constitute Article VII, Revised Statutes of 1889, entitled "Savings Bank and Fund Companies."
There are now in Missouri 482 incorporated banks whose charters were obtained under the laws of this State, engaged in the banking business. The greater part of the banking business is transacted through these State institutions. There are fifty-five National banks obtaining their charters under the National banking laws, most of which are safe and strong institutions.
In 1885, the Legislature passed a general law, authorizing any three or more persons to obtain articles of incorporation for the purpose of conducting the business of a trust company. Prior to the passage of this act there were no incorporated trust companies organized under the laws of Missouri, but since its passage twenty-six such companies have been organized. The purposes of these companies are comprehensive. Their usefulness unquestionable. The statute enumerates nine classes of powers vested in such corporations, and from the extent of business entrusted to them and their rapid growth, it seems remark- able that a statute for their organization was not passed several decades ago. One of their beneficial functions is to furnish bonds for executors and administrators, assignees, receivers, etc .; also bonds required to be given by litigants. This object alone has proved remunerative to such companies, beneficial to those required to give such bonds, and a pro- tection to individuals who would have been solicited to become sureties on such bonds in the absence of such companies.
In 1887, a general law was approved for the organization of inutual savings societies. Few lave availed themselves of the provisions of this law, since trust companies are empowered to performn substantially the functions which such societies could perform if organized.
27
EVOLUTION OF CORPORATION LAW IN MISSOURI.
Space will not permit the tracing of judicial construction placed by the Supreme Court upon the statutes and Constitutional restrictions affecting corporations. The Court's inter- pretation of these has always been just and able. No favoritism for or against corporations is to be found in the reported cases.
Missouri as a State stands fifth in population, and no State possesses higher conuner- cial credit and stability, or resources which tend to make it great. Its wise legislation affecting the organization of corporations, and its just treatment of them when formed, has induced mnch capital to be invested in corporate enterprises in the State. There is no kind of mining, manufacturing, mercantile, transportation, trust or indemnity business, in which there is not millions of dollars invested in corporations carrying on such kinds of business. Many corporations have become immense in their operations, employing hundreds and even thousands of men. Through enterprises largely carried on by corporations, the State has been developed and placed where it stands to-day, as one of the brightest and happiest, most prosperons and hopeful in the sisterhood of States.
St. Louis, Mo., January, 1898.
DEVELOPMENT OF THE MISSOURI LAW OF ADMINISTRATION.
BY J. G. WOERNER.
THERE is a class of courts whose functions differ from the ordinary functions of courts in adjudicating between the litigants before them on questions of collision with the law. While these accomplish justice by returning to the doer the legitimate result of his deed, whether in reparation or punishment of Wrong, or in the protection and realization of Right, the former (probate, testamentary or orphans' courts) are organized to regulate and direct the administration of the estates of those who are incompetent, by reason of death, infancy or unsoundness of mind, to manage them themselves.
The devolution of the property of deceased persons lias at all times, at least among civilized nations, been regulated by custom or law. In all of them probably, even in the earlier stages of society, inheritance by the children was sanctioned, and the right to dispose of property by last will or testament recognized in a testator who left no children. But a limit was put on the indulgence of passion, caprice or prejudice of a testator who preferred strangers to his own children in disposing of his estate. Solon allowed wills only if the testator had no children. Justinian declared wills void, unless one-fourth, or if he left four or more children, one-third of the estate was left to his children. So under the French Law, as embodied in the Code of Napoleon, as well as in inost of the European Continental States, the testator leaving neither children nor parents may dispose of his entire estate at his pleasure; but if the testator attempt to disinherit his children, he must allege one of the reasons mentioned in the Code for doing so, the truth of which may be traversed by the disinherited child, and if the allegation be found untrue the will is void. The English Con1- 11011 Law also, at least the Norman custom, required a testator who left wife and children, to leave one-third to the widow and one-third to the children,-the so-called partes ration- abiles; if he left a wife and no children, or child and no wife, he might dispose of one-half of his estate. By the English Statute of Distributions the succession of personal property was regulated much as it is by our own Statute of Descents and Distributions, giving to the widow, however, one-third, while in Missouri she is entitled to a child's part after payment of debts, or if there be no child, one-half of the personalty.
The tenure of real estate was, in England, governed by feudal principles, according to. which the King was the universal lord and original proprietor of all lands in the kingdom, wlio granted out their use on condition of certain services to be performed, so that, at cominon law, which took form and growth under the influences of the feudal system in all its vigor, there was 110 ownership, and therefore no inheritance, of real estate. Whatever rights of ownership are now enjoyed by English landholders have been granted by acts of Parliament in derogation of the common law. Under it, feudal grants could not be taken for debts of the tenants; and on the death of the latter they reverted to the lord, so that lands neither descended nor constituted assets for the payment of debts; hence the personal representa-
(28)
29
DEVELOPMENT OF THE MISSOURI LAW OF ADMINISTRATION.
tive had no interest in thein. But in the course of tiine feuds became hereditary, and the unconditional descent of lands from the ancestor to the heir was secured by the statute of 12 Car. II, Chap. 24, "which," Blackstone says, "was a greater acquisition to the civil property of the Kingdom, than even Magna Charta itself;" and the law gave recognition to the rights of creditors in a series of statutes culminating in 3 and 4 William IV, Chap. 104.
As to the succession of personalty under wills, the Church at an early time claimned probate jurisdiction. This practice was probably favored (says Bradford, I Bradford Rep. Intr., Note XII) by the sanction given by the Civil Law to the intervention of the Bishop to compel the execution of a will, where there were legacies in pios usus. The Canon Law went a step further, and intrusted the general care of the execution of testaments to the Bishop. In those times, under a law of King Alfred, recognized in the laws of King Edgar and Canute, the cognizance of testaments was directed to be had before the King and the Bishop, the King being represented in the Civil Courts by the Civil Magistrates, where the Bishop or other ecclesiastic also had a seat, both secular and ecclesiastical causes being decided in the County Courts and Hundred Courts, until, in the eighteenth year of William the Conqueror, the secular was separated from the ecclesiastical jurisdiction.
The jurisdiction in matters of probate was plausibly claimed by the Bishop as being in harmony with the customs of the Normans, as well as the civil and canon law, which, as above mentioned, gave to Bishops the charge of the execution of testaments containing bequests in pios usus.
But intestate estates were anciently seized by the King, and adıninistered through his ministers of justice in the civil courts; and the prerogative of such administration was granted as a franchise to many lords of inanors and others, who continued to hold by pre- scription, the right to grant administration to their intestate tenants and suitors in their courts baron for many centuries, and until the passage of the Probate Act, in the twentieth and twenty-first year of Queen Victoria (1858.) The jurisdiction not so granted out was claimed by, and in course of time vested in favor of, the Church, in prelates, such as Bishop or Ordinary (Judex Ordinarius), or other clerical dignitaries. Thus it is said that prior to the year 1858 there were 372 courts having testamentary jurisdiction in England, classed as follows: Provincial and Diocesan Courts, 36; Courts of Bishop's Commissaries, 14; Archi- diaconal Courts, 37; Royal Peculiar, 11; Archiepiscopal and Episcopal, 14; Decanal, Sub-decanal, etc., 44; Prebendal, 88; Rectorial and Vicarial, 63; other Peculiars, 17; Courts of Lords of Manors, 48 = 372.
In this way the Church obtained supervision of the distribution, or administration, of the personal estates of intestates, which the ordinary might seize and keep, give, alien or sell at will, and dispose of the money in pios usus. "So that," says Blackstone, "prop- erly the whole interest and power which were granted to the ordinary were only those of being the King's almoners within the diocese, in trust to distribute the intestate's goods in charity to the poor, or in such superstitious uses as the inistaken zeal of the times denom- inated pious." (2 Blackstone 494, 495.)
The abuse, to which this unlimited authority of the prelates led (for they were account- able only to God and themselves for their conduct; which, says Blackstone, "was a great defect in the common law"), gave rise to the statute of Westminster II (13 Edw. I, Chap. 19) directing the ordinary to pay the intestate's debts so far as his goods will extend. But even this check to the exorbitant power of the clergy, whereby the ordinary was made liable to creditors, left the residuum after payment of the debts still in their hands to be
30
THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
applied to whatever their conscience should approve. It was the flagrant abuse of this power that again called for legislative interposition, and by the statute of 31 Edw. III., Chap. 11, the estates of deceased persons were directed to be administered by the next of kin of the deceased, if he left no will, and not by the ordinary or his dependants. This statute originated the system of confiding the settlement of intestates' estates by the next of blood of the decedent, to be appointed by the ordinary, and putting the administrators, with respect to suits and accounting, upon the same footing with executors and making them officers of the ordinary.
This was the condition of the English law on the subject of administering the estates of deceased persons at the time of the settlement of Jamestown, in Virginia (4 James I), and which was, by the adoption of the common law of England, adopted as the law of Mis- souri by the Territorial government, January 19, 1816. But in America there never had been ecclesiastical courts with secular jurisdiction, and prerogative and prescriptive rights had been swept away by the republican spirit of the people. Hence it was incumbent upon the law making power, either by the constitutions or statutes, to create tribunals with func- tions and powers commensurate with the office to be performed by them. These were modeled after the English ecclesiastical courts and in some States bear the names given such tribunals in their mother country, such as "Courts of Ordinary," "Prerogative Courts," etc. In the territory constituting the present State of Missouri, when it still bore the name of the District of Louisiana, by an act of the Governor and Judges of Indiana Ter- ritory, empowered by Congress to make laws for the District of Louisiana, a Court of Pro- bate for each District (St. Charles, St. Louis, Ste. Genevieve, Cape Girardeau and New Madrid are named in the statute) was established in 1804, with power in the Judge to take proof of last wills, to grant letters of administration, and " to do and perform every matter and thing that doth, or by law may, appertain to the probate office, excepting the rendering definite sentence and final decree;" and in all cases where it was necessary to render a final decree upon a point contested, the Judge was to call to his assistance two of the Justices of the Court of Common Pleas, who together with the Judge was to constitute the Court of Probate, and giving an appeal to the General Court of the district.
In 1807, when the name of the District of Louisiana had been changed to that of the Territory of Missouri, another act was passed, entitled "An act directing the probate of wills, and the descent of intestate's real estate, and the distribution of their personal estates." This act omits the inhibitions contained in the act of 1804 against the Judge's power to render definite sentence and final settlement, and also the provisions requiring the Judge to call to his assistance two Justices of the Court of Common Pleas. It also embodies the regulations concerning wills, descents and distribution, and the law of administration.
By a separate act of the same date, the Judges of the Court of Common Pleas are authorized and directed to hold a court of record in each district, styled "The Orphan's Court," with jurisdiction over all persons who as guardians, trustees, tutors, executors or administrators, or otherwise, shall be entrusted with or accountable for any property belonging to any orphan or person under age. Both of these acts were expressly repealed by the act of the General Assembly of the Territory of Missouri, dated January 21, 1815.
The last mentioned act imposes the duties of Probate Court on the Circuit Courts of the several counties, empowering them in term time, or the Clerk in vacation subject to the confirmation or rejection of said Court, to take proof of last wills and to grant letters testa-
1
31
DEVELOPMENT OF THE MISSOURI LAW OF ADMINISTRATION.
mentary and of administration, and to do and perform every matter or thing enjoined on said Court by law. This act also embodies the provisions concerning wills and their probate, descent and distribution, dower and the administration of estates, including the method of proving and obtaining payment of the debts of deceased persons.
An act amendatory of the above was approved January 20, 1816, providing for the manner of recording letters testamentary and of administration, the taking of administrators' and executors' bonds, the appointment of guardians to minors, and making some changes in the details of proving debts against estates of deceased persons and giving of bonds by widows, on their application for receiving their dower, and of legatees or distributees before receiving their shares, the duties of executors or administrators in selling lands, etc. This act was likewise repealed.
A further amendment, approved October 25, 1820, authorizes Circuit Courts to order the sale of lands necessary to pay debts; and one approved January 11, 1822, provided for the descent of real estate and the distribution of personal estate in cases of intestacy, the law of descendants taking by representation, the law of advancement, etc.
The Territory of Missouri was definitely admitted as a State into the Union in 1821. On the 12th of January, 1822, the General Assembly passed an act investing the several County Courts of the State with probate jurisdiction to the extent of granting letters testa- mentary and of administration, taking bonds from administrators and executors, requiring them to file inventories of all real and personal estate of the deceased and causing the slaves and other personal property to be appraised, directing the sale of lands if the personalty of the deceased was insufficient to pay his debts, and decreeing specific performance of con- tracts of sale of real estate made by decedents; settling and auditing the accounts of executors and administrators, and ordering the payment of his debts, the payment of legacies and distributive shares to the distributees.
In 1825 the Legislature provided for a general revision of all the statutes, directing what laws the revision was to retain, and providing for a repeal of all laws of a public, gen- eral and permanent nature not so required to be embodied in the revision. It contains the following acts: "An Act concerning Executors and Administrators," "Descents and Dis- tributions," "Aliens," "Dower," "Escheat," "Guardian and Ward," "Idiots and Lunatics," "Courts" (§ 5 creating Probate Courts) and "Wills and Testaments." These acts constitute a very able and thorough codification of the system of dealing with the estates of deceased persons, and of minors and persons of unsound inind, typical of the American consciousness on the subject and taking high rank among the codes of various States for the simplicity, perspicuity and wisdom of its provisions. It was said by a late
illustrious member of the St. Louis bar, in commenting on the difficulties with which the codifiers of 1825 had to deal, that "to any but 'deacons of their craft' this mass would have appeared a chaos, and a chaos it would have remained. How the men of 1825 dealt with it, how it was reduced to order, how it was blended into one harmonious whole, how excrescences were pruned away, and contradictions avoided, can only be learned by a care- ful study of their work." (Address by the Hon. Thomas T. Gantt, before the Law Library Association of St. Louis, December 7, 1885, on the presentation of the portrait of Henry Sheffie Geyer). The original draft of the "Act Concerning Executors and Administrators" is said to have emanated from the pen of Henry S. Geyer.
The spirit peculiar to legislators of free countries (not least to American legislators), to impress their subjective views upon the statute books, has not spared the code which Mr.
32
THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
Gantt lauded as an "inestimable possession for Missouri." The administration code has been refined upon and loaded down with multitudinous and heterogeneous amendments, to which every session of the Legislature has diligently contributed, not always in the spirit of the original act, nor conducive to perspicuity and efficiency of its detail, so that a re- codification in the spirit of the codifiers of 1825 would prove a blessing to the courts, the bar and the public.
Not but that many higlily salutary provisions have been added to, and wise changes inade in, the original enactment. Among these may be mentioned the reduction of the enforced length of the period of administration from three to two years (a further reduction froin two years to one seems desirable, and feasible in view of the greatly increased facil- ities of communication and travel) ; the power to dispense with administration altogether of estates not exceeding in value the amount secured to the widow or to minor children of the deceased under sixteen years of age; the increase in the amount of estate secured to the widow absolutely, which has been augmented from $150 in 1825, to $400, plus a sufficient appropriation by the court to procure the means of subsistence of the widow and minor children for one year (usually from $150 to $600 or more), as well as furniture not exceeding $500, and books not exceeding $200 in value; the change in the matter of com- pensation of the Judge of Probate in cities of 300,000 or more inhabitants, from the system of fees to a fixed salary, and the election of the Probate Clerk by the people instead of appointinent by the Court. Other changes have been engrafted on the law of administra- tion, some wise and of undoubted benefit to the people, others of questionable wisdom. Whether the amendment of the law, giving to a widower the same absolute interest in the separate property of his deceased wife as a widow has in that of her husband, is wise or otherwise, will probably be judged differently by different persons.
A feature distinguishing the American from the English system of administration, namely, the jurisdiction vested in Probate Courts over the settling up of the estates of part- nerships dissolved by the death of one of its members, has been carried to greater extent in Missouri than in any other State in the Union. It furnishes a striking instance of the increasing confidence in the efficiency of Probate Courts, and of the tendency of legislation in America to enlarge the scope of their powers and jurisdiction. The first legislative enactment subjecting surviving partners to the jurisdiction of Probate Courts is met with in the Revised Statutes of 1845, incorporating therein the substance of the Maine statute, with change of phraseology only, the substantial requirement of which being the bond of the surviving partner for the faithful application of the partnership effects to the payment of its debts and the division of the residue between the survivor and the estate of the deceased partner.
By successive amendments the jurisdiction was increased until, by the Revised Statute of 1879, the winding up of a partnership estate was required to conform in all respects to the administration of tlie estates of deceased individuals, so far as applicable. The develop- inent of the systemi did not proceed without friction between the legislative and the judicial branch of the State government. The right of a surviving partner to prefer creditors, as at common law, was negatived by the Probate Court, in analogy with the system of pro rata payment required of administrators where the assets are insufficient to pay the debts in full, but stoutly vindicated by the Court of Appeals and Supreme Court, until the Legislature, in express terms, required surviving partners to pay all debts pro rata. So the Courts asserted the rights of non-resident surviving partners to wind up the partnership estates in
33
DEVELOPMENT OF THE MISSOURI LAW OF ADMINISTRATION.
Missouri; while the Legislature confined such power to residents of the State. Whether the stringency of the provisions touching the settlement of partnership estates in the Probate Courts is beneficial in its results, is susceptible of argument on both sides. There is cer- tainly great objection to this law in commercial circles.
The Constitution of 1875 provided for the establishment, by the General Assembly, of Probate Courts in each of the several counties, requiring them to be "uniformn in their organization, jurisdiction, duties and practice." Before that time, the general statutes vested probate jurisdiction in the several County Courts (after the revision of 1835.) But under the system of special legislation which was in vogue in Missouri previous to its inhibition by the Constitution of 1865, and inore emphatically by that of 1875, independent Probate Courts were created by special acts in many, perhaps a majority, of the counties, producing a general system of courts, valid only in half or less of the counties, while the Courts having probate jurisdiction in other counties operated each under a law particular to itself. This anomaly was done away with by the act creating Probate Courts under the Constitutional provisions of 1875 (Now Art. 4 of Chap. 46 Rev. St. 1889.)
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.