Opinion
No. 28689.
November 17, 1953. Rehearing Denied December 18, 1953.
APPEAL FROM THE CIRCUIT COURT, LEWIS COUNTY, TOM B. BROWN, J.
Hilbert Veatch, Earl L. Veatch, Monticello, for appellant.
J. Andy Zenge, Jr., Canton, for respondent.
This is an action in mandamus. On the relation of Elizabeth D. Lillard this action was brought against Hon. Earl C. Tompkins, Judge of the Probate Court of Lewis County, to compel him to revoke and set aside letters of administration granted to a first cousin in the estate of Nellie Ellison, deceased, and to appoint relator, a half niece of the decedent, as administratrix. Following a hearing the alternative writ issued in the case was quashed by the Circuit Court of Lewis County. Relator has appealed from that judgment.
The principal question on this appeal was the validity of the order of the probate court appointing a first cousin of the full blood as administrator of a decedent's estate in preference to a half niece. Since the submission of the case in this court the administrator appointed by the probate court has made a final settlement and resigned as administrator. His resignation has been accepted by the probate court and an order has been entered by that court approving his final settlement. As a consequence the mandamus case, insofar as the prayer for the setting aside of the appointment of the administrator is concerned, has become moot. There is now before us a motion to dismiss the appeal on that ground, filed by respondent probate judge. The resignation of the administrator, however, does not compel the sustaining of the motion to dismiss for the reason that relator, in her prayer in the mandamus action, not only asked that the appointment be revoked, but also prayed that she be appointed as administratrix of the estate. The latter point is still undisposed of and we will therefore address ourselves to that question.
As the matter now stands there is no person serving as administrator. Section 461.030 RSMo 1949, V.A.M.S., as applicable to this case, provides that letters of administration shall be granted to those who are entitled to distribution, provided that some other person may be appointed if the court, or the judge in vacation, should believe that no one of such persons entitled to distribution is a competent and suitable person. Relator, as the sole resident distribute, upon proper application under § 461.030, supra, and proper affidavit under § 461.230 RSMo 1949, V.A.M.S. is entitled to the appointment unless, upon an issue fairly raised by some person interested in the estate or for some sound and valid reason found by the probate court of judge in vacation, State ex rel. Couch v. Kelso, Mo.App., 217 S.W.2d 596, she is adjudged not to be a competent and suitable person to act. The issue of her competence and suitability was not before the probate court in the previous proceedings and has not yet been passed upon by that court or judge. It was not before the circuit court in the mandamus case, and is not before us on this appeal.
Should the issue be raised, either by an interested person or by the probate judge, relator will be entitled to a hearing in the probate court on the question, State ex rel. Gregory v. Henderson, 230 Mo.App. 1, 88 S.W.2d 893, loc.cit. 904, because the right to administer is a valuable right, of which a person preferred by the statute may not be deprived without some sound or valid reason. State ex rel. Couch v. Kelso, supra. In the event the issue is raised the probate judge will be called upon to exercise his discretion in the matter, State ex rel. Fansher v. Guinotte, 227 Mo.App. 902, 58 S.W.2d 1005, but with the exercise of that discretion the appellate court has no concern at this time. That is a question which, if raised, must be answered in the proper forum and at the appropriate time but cannot be answered on this appeal.
For the reasons given the motion to dismiss should be overruled and the judgment of the circuit court should be affirmed, and the Commissioner so recommends.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly affirmed.
BENNICK, P. J., ANDERSON, J., and ROBERT L. ARONSON, Special Judge, concur.