Opinion
June 12, 1941.
1. EXECUTORS AND ADMINISTRATORS: Void Transfer to Circuit Court. Where an affidavit is filed disqualifying the probate judge as to a motion to remove administrators, and the probate court transferred both this motion and also an application for the appointment of relatrix as administratrix to the circuit court, the circuit court did not acquire jurisdiction to rule on the application of relatrix and said application is pending in the probate court for consideration.
2. EXECUTORS AND ADMINISTRATORS: De Bonis Non: Preferential Right of Appointment. Under Sections 7 and 47, Revised Statutes 1939 (there being no surviving husband or wife) the probate court must give preferential consideration to those entitled to distribution, but still has discretion in the matter which cannot be controlled by those entitled to preference under the statute.
3. MANDAMUS: Discretion of Probate Court. Since the probate court has discretion under Sections 7 and 47, Revised Statutes 1939, as to the appointment of an administrator de bonis non, the exercise of this discretion, if not abused, cannot be interfered with by mandamus.
4. EXECUTORS AND ADMINISTRATORS: Mandamus: Jurisdiction of Supreme Court. The Supreme Court would be without authority to command the probate court to make no order affecting the appointment of an administratrix de bonis non, if such appointment were made, as she might be subject to removal for misconduct under Section 43, Revised Statutes 1939.
5. MANDAMUS: Peremptory Writ to Conform to Alternative Writ: Amendment. The peremptory writ must substantially conform to the alternative writ, but under the modern rule the alternative writ may be amended by leave or by the court's own motion.
But the relatrix did not either in the Court of Appeals or the Supreme Court ask leave to amend the alternative writ and, the record considered, the Supreme Court would not be justified in amending the writ of its own motion. In this situation the question of the validity of the appointment of the administrators should not be considered in this action.
PEREMPTORY WRIT DENIED.
John Muster and Livengood Weightman for relatrix.
(1) The probate court is a statutory court whose authority is strictly limited to the powers granted it by statute. State ex rel. Gregory v. Henderson, 88 S.W.2d 893; State ex rel. Barlow v. Holtcamp, 14 S.W.2d 646; Peck v. Fillingham's Estate, 199 Mo. App. 277, 202 S.W. 465; State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119; City of St. Louis v. Hollrah, 175 Mo. 79, 74 S.W. 996. (2) Section 47, Revised Statutes 1929, directs to whom letters of administration de bonis non shall be granted when the original executors or administrators of an estate die, and there remain unadministered assets. Sec. 47, R.S. 1929; State ex rel. Reismeyer v. Holtcamp, 200 S.W. 294. (3) Sections 7, 8 and 9, Revised Statutes 1929, define the rights of a person to appointment as administrator and likewise prescribe the powers, and limitations thereon, of the probate court as to such appointment. Secs. 7, 8, 9, R.S. 1929; State ex rel. Reismeyer v. Holtcamp, 200 S.W. 294; State ex rel. Gregory v. Henderson, 88 S.W.2d 893; State ex rel. Fansher v. Guinotte, 227 Mo. App. 902, 58 S.W.2d 1005; In re Wilson's Estate, 16 S.W.2d 737; Pikey v. Riles, 223 Mo. App. 921, 20 S.W.2d 550; Linder v. Burns, 243 S.W. 361; State ex rel. Grover v. Fowler, 108 Mo. 465, 18 S.W. 968; 25 C.J., p. 220. (4) The appointment of W.E. Hinton and Chilton Robinson as administrators de bonis non herein is absolutely void. (a) The appointment of a stranger within thirty days is void where any one entitled to priority has not renounced said prior right. And such renunciation or waiver can be made only in statutory manner, by writing signed by favored person which is filed in the probate court. Secs. 7, 8, 9, R.S. 1929; State ex rel. Gregory v. Henderson, 88 S.W.2d 893; Skelly v. Veerkamp, 30 Mo. App. 49; Hollingsworth v. Jeffries, 121 Mo. App. 660, 97 S.W. 632; Lyon v. Lyon, 12 S.W.2d 768; Pikey v. Riles, 223 Mo. App. 921, 20 S.W.2d 550; In re Graves Estate, 73 S.W.2d 844; In re Wilson's Estate, 16 S.W.2d 737. (b) Even if relatrix had orally consented to such appointment, the appointment would still be absolutely void. Secs. 8, 9, R.S. 1929; In re Graves Estate, 73 S.W.2d 844; State ex rel. Gregory v. Henderson, 88 S.W.2d 893; Fansher v. Guinotte, 227 Mo. App. 902, 58 S.W.2d 1005. (c) Moreover, even with consent of any kind or character, the appointment would still be void. Sec. 8, R.S. 1929; State ex rel. Gregory v. Henderson, 88 S.W.2d 893; State ex rel. Fansher v. Guinotte, 227 Mo. App. 902, 58 S.W.2d 1005. (d) Void appointment may be assailed at any time. State ex rel. Gregory v. Henderson, 88 S.W.2d 893. (5) The only evidence properly admitted consisted of the records of the probate court of Nodaway County, offered by relatrix. Sec. 1826, R.S. 1929; State ex rel. Gregory v. Henderson, 88 S.W.2d 893. (6) Relatrix was and is a suitable and competent person to administer. Sec. 7, R.S. 1929; State ex rel. Gregory v. Henderson, 88 S.W.2d 383; Stevens v. Larwill, 110 Mo. App. 140, 84 S.W. 113. (a) No testimony was ever offered by anyone acquainted with relatrix that she was incompetent or unsuitable. The only evidence was that all of the brothers and sisters present in court (eight in all) requested her appointment, except one sister present who did not take the witness stand. (b) Ethel Hinton, sister, who did not join in the renunciation in favor of relatrix, was present in court, as was W.E. Hinton and Chilton Robinson, and did not take the witness stand. (7) Right to administer is a valuable one. State ex rel. Gregory v. Henderson, 88 S.W.2d 893; State ex rel. Fansher v. Guinotte, 227 Mo. App. 902, 58 S.W.2d 1005. (8) Mandamus is the proper remedy for relatrix and the peremptory writ of mandamus should be issued herein. State ex rel. Gregory v. Henderson, 88 S.W.2d 893; State ex rel. Fansher v. Guinotte, 227 Mo. App. 902, 58 S.W.2d 1005; State ex rel. Mitchell v. Guinotte, 113 Mo. App. 399, 86 S.W. 884; 18 R.C.L., sec. 52, pp. 137-8.
J. Dorr Ewing, Charles R. Bell and Wright Ford for respondents.
(1) A litigant asking relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to the relief sought. State ex rel. Porter v. Hudson, 226 Mo. 239; State ex rel. Cook v. Kelly, 142 S.W.2d 1091. (2) The relatrix herein fails to allege and prove that she is a person entitled to distribution of the estate of Lewis J. Neal, as the law requires. Sec. 7, R.S. 1929. (3) Mandamus lies only where the court fails to perform a ministerial duty, and will not lie in a case where a court exercises judicial discretion. State ex rel. Wilson v. Martin, 26 S.W.2d 834; State ex rel. Thompson v. Nortoni, 269 Mo. 563, 191 S.W. 429; State ex rel. Abercrombie v. Holtcamp, 267 Mo. 412. (4) The agreed statement of facts shows that the administrators are persons entitled to distribution of the estate. Sec. 7, R.S. 1929; Stevens v. Larwill, 110 Mo. App. 154; Cooper v. Cooper, 43 Ind. App. 620, 88 N.E. 341. (5) The law presumes the validity of a judgment rendered by a probate court. Roloson v. Riggs, 274 Mo. 522. (6) There has been no adjudication by the probate court that Dorrit Smith, the relatrix, possesses qualifications which entitle her to administer upon the estate. In the absence of such a finding, her appointment will not be compelled by mandamus. Sec. 7, R.S. 1929; State ex rel. Gregory v. Henderson, 88 S.W.2d 893.
Action in mandamus originating in a Court of Appeals. In an opinion filed, that court denied a peremptory writ. On a dissent, the case was transferred to this court. [State v. Hull, 147 S.W.2d 214; Sec. 6, Art. VI, Const.]
Relatrix seeks to compel the probate judge and the circuit judge of the county to remove Hinton Robinson as administrators de bonis non, with the will annexed, of the estate of Lewis J. Neal, deceased, and appoint her administratrix of said estate and thereafter make no order affecting her appointment as sole administratrix.
She filed in the Court of Appeals a motion to strike certain allegations of fact from the return to the amended alternative writ. The agreed statement of facts contains said allegations and states that the same are "involved in a decision of this cause." If so involved, the motion to strike must be overruled. The material facts follow:
Lewis J. Neal died testate, leaving a widow and ten children, including relatrix. He gave the widow all the personal property and the use of the farm as long as she lived and did not marry. On the death or marriage of the widow, he directed a sale of the farm and the proceeds equally divided among the children, subject to charges against certain shares. The widow administered the estate and was finally discharged. She did not marry and at her death the farm was all that remained of the estate. After the death of Lewis J. Neal, and during the life of the widow, the interests of certain children in the farm were sold under deeds of trust or execution or voluntarily conveyed. Relatrix was adjudged a bankrupt and her interest in the farm was sold by the trustee in bankruptcy, who executed a trustee's deed to the purchaser. On the oral argument the relatrix stated that litigation was pending to determine the validity of these conveyances.
The probate court, within thirty days of the death of the widow, appointed Hinton Robinson administrators de bonis non, with the will annexed, of the estate of Lewis J. Neal, deceased. The appointment was without notice to the children, who had not filed written renunciations of their right to administer the estate. [Secs. 7, 8, 9 and 47, R.S. 1939.] Thereafter eight of the children filed a motion for the removal of Hinton Robinson. Thereafter relatrix filed an application for letters of administration de bonis non, and therewith filed a written renunciation of all the children residing in Missouri except one who was served with a citation. On the affidavit of Hinton Robinson disqualifying the probate judge in the action to remove them as administrators, the motion to remove the administrators and the application of relatrix for letters of administration were transferred to the circuit court. [Sec. 2444, R.S. 1939.] In the circuit court the motion to remove Hinton Robinson was overruled, and the application of relatrix for letters of administration was denied. Under the affidavit disqualifying the probate judge in the action to remove the administrators, the probate court was without authority to transfer the application of relatrix for letters of administration to the circuit court. It follows that the circuit court was without jurisdiction to rule the application of relatrix for letters of administration, and the same is pending in the probate court for consideration. The sections for consideration follow:
"Letters of administration shall be granted: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation shall believe will best manage and preserve the estate: Provided, however, if the court, or judge in vacation, should believe no one of such persons entitled to administer is a competent and suitable person, some other person than those above mentioned may be appointed." [Sec. 7, R.S. 1939.]
"Administrators de bonis non, when appointed. — If . . . after final settlement of an estate is had and the executor or administrator has been discharged . . . letters of administration of the goods remaining unadministered shall be granted to those to whom administration would have been granted, if the original letters had not been obtained; and the administrator shall perform the like duties and incur the like liabilities as the former executors or administrators." [Sec. 47, R.S. 1939.]
[2, 3] It will be noted that under Sec. 47 the probate court, in appointing an administrator [108] to continue administration, must give preferential consideration, as provided in Sec. 7, to those entitled to distribution. Even so, said court is not compelled to appoint either of the distributees, for in 1917, Sec. 7 was amended by adding the proviso. [Laws of Mo. 1917, p. 93.] Prior to the amendment, said court was without discretion in the matter. Under the proviso it is required to determine if those preferred by Sec. 7 or either of them are suitable and competent to administer the estate. In other words, the probate court is required to exercise a discretion which, if not abused, cannot be interfered with by mandamus. Furthermore, said discretion cannot be controlled by those entitled to preference under the statute.
Furthermore, if relatrix were appointed administratrix, this court is without authority to command the probate court to make no order affecting her appointment, for, during administration, she might be subject to removal for misconduct under Sec. 43, R.S. 1939.
We now consider the amended alternative writ. In substance, it commands respondents (a) to vacate all orders pertaining to the appointment of Hinton Robinson administrators; (b) appoint relatrix sole administratrix of the estate of Lewis J. Neal, deceased; (c) and thereafter make no order in anywise affecting her appointment as sole administratrix of said estate.
As above stated, this court is without authority to compel respondents to appoint relatrix administratrix, and, if appointed, to compel them to make no order affecting said appointment. Thus we are confronted with the rule that the peremptory writ must substantially conform to the alternative writ. Under the modern rule the alternative writ may be amended by leave, or of the court's own motion. [Sec. 987, R.S. 1939; State ex rel. Whitehead v. Wenon, 326 Mo. 352, 357, 32 S.W.2d 59; State ex rel. Oil Co. v. Baggott, 96 Mo. 63, 71, 8 S.W. 737; State ex rel. Dilliner v. Cummins, 338 Mo. 609, 617, 92 S.W.2d 605; State ex rel. Highway Comm. v. Trimble, 329 Mo. 987, 47 S.W.2d 779.]
However, relatrix did not, in the Court of Appeals or in this court, ask leave to amend the alternative writ by striking therefrom the allegations commanding respondents to appoint her administratrix, and, if appointed, to make no order affecting said appointment. Furthermore, the record considered, this court would not be justified in amending the writ of its own motion. In this situation the question of the validity of the appointment of Hinton Robinson as administrators should not be considered in this action.
The peremptory writ should be denied. It is so ordered. All concur.