concurring.
I concur in the result. “Appellate review is limited to those issues presented in defendants’ points and they alone need be and are considered.” Smith v. Welch, 611 S.W.2d 398, 399 (Mo.App.1981). “It is not the function of the appellate court to serve as advocate for any party to an appeal. That is the function of counsel. It would be unfair to the parties if it were otherwise.” Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). “Assignments of error set forth for the first time in the reply brief do not present issues for appellate review, accordingly the contention is denied.” Application of Gilbert, 563 S.W.2d 768, 771 (Mo. banc 1978).
The plaintiff’s first point is: “The trial court erred in granting the motion to dismiss on the ground that plaintiff had no standing to sue in that plaintiff had standing pursuant to Missouri Probate Code Section 472.013.” Section 472.013 in part provides:
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this code, or if fraud is used to avoid or circumvent the provisions or purposes of this code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefiting from the fraud, whether innocent or not. (emphasis added).
To support this point the respondent argues as follows:
Respondent worked a fraud on this court, and the courts of California, by misrepresenting the size of decedent’s domiciliary estate, securing for himself assets to which he would not be entitled to distribution under the California Small Estates procedure, and now seeks to administer these assets in a Missouri probate proceeding in order to secure title which he could not lawfully have obtained in California. Respondent seeks to misuse the jurisdiction of this court to obtain property.
Plaintiff’s second point is that she did “adequately state a claim for misrepresentation.” In argument under this point, the plaintiff again relies upon the misrepresentation in California. This is the sole allegation of misrepresentation in her petition.
The plaintiff’s third point is that the trial court erred in dismissing the petition because the probate division did not lack subject , matter jurisdiction to impose a constructive trust. Again, under this point the plaintiff argues that a constructive trust is a proper remedy based upon the alleged misrepresentation in California.
It is apparent that the only error asserted by the plaintiff is that the dismissal of her petition was contrary to § 472.013.
Respondent represented to the California courts, under its Probate Code Sections 630 and 5910, that decedent’s probate estate was less than $60,000 when, as set forth in the inventory on file, respondent knew that the decedent’s estate was actually $94,459, Statement of Facts, above.
Appellant has raised a claim of fraud, with standing properly derived from Missouri Probate Code Section 472.013. This case is one of first impression in Missouri, no applicable case law having been found. (Plaintiff’s Brief)
By its own terms, § 472.013 is limited to proceedings “under this code”, meaning the Probate Code of Missouri. Misrepresentation in California is not a basis for relief under that section. Nor does that section give the plaintiff standing to sue in the Probate Division of the Circuit Court of Greene County. Because plaintiff’s points are without merit, I concur in the result.
However, I cannot concur in all of the observations in the principal opinion concerning the right of an administrator appointed in another state to maintain an action in Missouri. Sections 473.665 to 473.694 deal with the estates of nonresident decedents. Section 473.671 declares that “The courts of this state have jurisdic*766tion over all tangible and intangible property of a nonresident decedent having a situs in this state.” However, in my opinion that section refers to such property having a situs in Missouri at the time of death. For this reason, I do not believe § 473.678 prevents a domiciliary foreign personal representative from maintaining an action in this state to recover assets having a situs in the domiciliary state at the time of death.
I recognize that, as stated in the principal opinion, numerous cases declare the common law general rule to be that an administrator appointed in one state cannot maintain an action in his representative capacity in another state and that Letters of Administration have no extraterritorial effect. I also acknowledge that Restatement (Second) of Conflicts §§ 320 and 321 (1971) support the principal opinion.
However, without an analysis of each of the cases referred to, it is sufficient to observe that in many of them the statement of the general rule is dictum. In re Thompson’s Estate, supra. Further, in many others, the general rule is stated in respect to assets which had a situs in Missouri at the time of death. For example, see Crohn v. Clay County State Bank, supra. Also, it is significant that underlying many of those authorities was the proposition that an ancillary administration was subservient to a domiciliary administration. An example is the following Comment to § 321 of the Restatement (Second) of Conflicts:
It is important that an executor or administrator should be able to take possession of chattels outside the state of his appointment. By his so doing, the expense and delay of an ancillary administration may be avoided and certain of the benefits of a unified administration obtained. Since the foreign executor or administrator who collects chattels locally is responsible to the court which appointed him for their proper management and application, the estate as a whole is protected regardless of which executor or administrator takes possession of the chattels.
The status of the administration of an estate in each state in which property of a decedent had a situs has changed. It is now generally recognized that administration proceedings with respect to property having a situs in a state “are original proceedings or procedures conducted under the authority of this state solely, and are independent of and not ancillary to proceedings or procedures in any other state or country.” § 473.668. Also see Blum v. Salyer, 299 F.Supp. 1074 (W.D.Mo.1969); In Re Estate of Maslowe, 119 Ill.App.3d 776, 75 IllJDec. 361, 457 N.E.2d 151 (Ill. App. 2 Dist.1983); Estate of Wilson v. National Bank of Commerce, 364 So.2d 1117 (Miss.1978). It is generally held that situs is determined at the date of death. Cur-tiss v. McCall, 224 So.2d 354 (Fla.App. 1969); In Re Estate of Maslowe, supra; Matter of Estate of Jackson, 48 Ill.App.3d 1035, 6 Ul.Dec. 972, 363 N.E.2d 919 (1977). Further, it is declared that when appointed, the power of a personal representative relates to the date of death. Daughters of Jesus v. Gee, 153 Mont. 342, 457 P.2d 471 (1969); Kelly v. Smith, 1 Ohio App.2d 142, 219 N.E.2d 231 (1964). In respect to assets having a situs in a state appointing a personal representative, the common law general rule has been relaxed by decision and statute. For example see Crosson v. Conlee, 745 F.2d 896 (4th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985); In Re Estate of Maslowe, supra; Hossler v. Barry, 403 A.2d 762 (Me.1979); Saporita v. Litner, 371 Mass. 607, 358 N.E.2d 809 (1976); Estate of Pettit v. Levine, 657 S.W.2d 636 (Mo.App. 1983); In Re Estate of De Camillis, 66 Misc.2d 882, 322 N.Y.S.2d 551 (N.Y.Sur. 1971). Also see § 473.687 and § 507.020. Cf. Leflar, American Conflicts Law § 205 (3rd ed. 1977). The development of the law has been analytically developed in Blum v. Salyer, supra. It is for the reasons stated in the authorities last cited that I concur only in the result.