Stevens v. Larwill
| Decision Date | 19 December 1904 |
| Citation | 84 S.W. 113,110 Mo.App. 140 |
| Parties | O. H. STEVENS et al., Appellants, v. JOSEPH H. LARWILL, Administrator, etc., Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Judgment affirmed.
Frank Titus for appellants.
(1) The court erred in refusing a trial by jury of the questions of fact in this cause mentioned in the motion for such trial by appellants and as requested by appellants at the trial. Tinsley v. Kinney, 170 Mo. 317; Rutherford v Williams, 42 Mo. 38; Smith v. Canning Co., 14 Mo.App. 522; New Harmony Lodge v. Railroad, ___ Mo.App ___, 74 S.W. 5. (2) The petition in the suit in partition, described all the lands in Missouri owned by John C. Larwill in his lifetime, and all persons having any interest, real or fancied, in such lands, including the present administrator, Joseph H. Larwill, were defendants therein. Upon the institution of such suit all of said lands and the increment thereof, became exclusively within the jurisdiction and control of said circuit court, and the probate court, an inferior tribunal, was wholly unauthorized by ex parte orders to turn said lands and their revenues over to a single individual, who at the time was a contestant in such prior pending partition suit. Seibel v. Simeon, 62 Mo. 257; Railroad v. Harris, 42 Kan. 223; Trust Co. v. Street Co., 177 U.S. 61; McFarlen Co. v. Wells, 99 Mo.App. 641; Mishawka Co. v Powell, 98 Mo.App. 530; Purdy v. Gault, 19 Mo.App. 191; McDaniel v. Lee, 37 Mo. 204; Holland v. Anderson, 38 Mo. 55; Rathbone v. Warren, 10 Johns. (N. Y.) 595; Nelson v. Hatch, 15 Ala. 501; Henderson v. Dickey, 50 Mo. 161. (3) No inquiry or investigation as to the qualifications of Joseph H. Larwill for managing the property was had, nor were those of the heirs of said deceased living in Kansas City, notified or cited in any way as required by section 8 of the administration act, to either appear and qualify for administrator or given any opportunity or notice whatever, to show cause against the application of Joseph H. Larwill, who had just arrived in the town, and of necessity knew nothing of the property, or the tenants, or the requirements of either. That such notice or citation is necessary, see: Mullanphy v. County Court, 6 Mo. 564; Torrence v. McDougald, 12 Ga. 526; Sayre v. Sayre, 48 N.J.Eq. 267; 1 Woerner on Admr. (2 Ed.), sec. 262. There existed no good or sufficient reason for administration in this case. McCracken v. McCaslin, 50 Mo.App. 85; Langston v. Canterbury, 173 Mo. 122. (4) This administrator is a State officer, his appointment by whatever authority made is a civil appointment; and the evidence showing without contradiction that he had been but a few weeks at most in this State, prior to his appointment, the same must be adjudged void. State ex rel. v. Dillon, 90 Mo. 229; State ex rel. v. Walker, 132 Mo. 210; State ex rel. v. Bus, 135 Mo. 325; 1 Woerner on Administrators (2 Ed.), sec. 157; In re Estate of Ames, 52 Mo. 290. (5) Instruction 6, to the effect that the letters of administration, with the will annexed, were improperly issued by the probate court of Jackson county, states the law, and was improperly denied. The evidence of the Ohio executor, Mr. Smith and Mr. Jenner shows that the administration is pending on the estate of said John C. Larwill in Ohio, under the purported will of said deceased (abstract pages 59 and 63). Letters cum testamento annexo are not applicable or proper in the case of a foreign will, under which administration exists within the government of which the alleged testator was a citizen. Our statute nowhere justifies such letters on a foreign will. R. S. 1899, sec. 16. (6) Respondent now claims that his is merely an ordinary administration, auxiliary to the chief administrator in Ohio. This claim can not be maintained. An ordinary administrator merely distributes the effects of the deceased according to the law of Missouri governing descent and distribution, while an administrator cum testamento annexo, is bound to administer under the provisions of the will alone. 1 Woerner on Admr. (2 Ed.), 533, sec. 245; Bain v. Matteson, 54 N.Y. 663; Harper v. Smith, 9 Ga. 461; In re Eyster's Estate, 5 Watts (Pa.) 132. (7) There being substantially no debts owing by deceased in Missouri and no demand for an administration by any creditor, administration was wholly unnecessary. McCracken v. McCaslin, 50 Mo.App. 85; Langston v. Canterbury, 173 Mo. 122. (8) Section 42, R. S. 1899, enumerates among other causes requiring the removal of an administrator, that of unsuitability to execute the trust. Unsuitability includes and denotes among other meanings--hostility to one's coheirs or distributees. 1 Woerner on Admr. (2 Ed.), sec. 270; Gaston v. Hayden, 98 Mo.App. 693; Estate of Pike, 45 Wis. 391; Drews Appeals, 58 N.H. 319; May v. May, 167 U.S. 320. (9) Under such facts the law required the removal of respondent pending such litigation. R. S. 1899, sec. 13; State ex rel. v. Guinotte, 156 Mo. 513; Trust Co. v. Soderer, 171 Mo. 680. (10) The orders of the court, authorizing respondent to take possession of the lands and collect the rents, were wholly illegal. The purported will in evidence does not devise these lands or any part thereof, either directly or to anyone executor or otherwise, as trustee for others, and in nowise refers to them. Aubuchon v. Lary, 23 Mo. 99; Chambers v. Wright's Heirs, 40 Mo. 482; Thorp v. Miller, 137 Mo. 239; Estes v. Nell, 140 Mo. 654; Eneberg v. Carter, 98 Mo. 651; 11 Am. and Eng. Ency. of Law (2 Ed.), 821. (11) It was within the province alone of the circuit court, pending the contest regarding the land and the rents therefrom, which are a part thereof, to appoint a custodian as prayed in the petition in the suit in partition, wherein respondent was a party defendant, at the time of his obtaining this administration. Hagerty v. Duane, 1 Paige (N. Y.), 321; Townsend v. Sykes, 38 La. Ann. 862; Deitrich v. Deitrich, 154 Pa. St. 92; Trust Co. v. Soderer, 171 Mo. 675. (12) The action of the trial court was erroneous in sustaining the objection of respondent to witness Benjamin Hoyt, stating the tenor of the remarks made to witness by respondent in regard to the matter of his hostility and prejudice towards his nephews, the complainants. Seyforth v. Railroad, 52 Mo. 449; Eyerman v. Sheehan, 52 Mo. 221; Greenwell v. Crow, 73 Mo. 638; Haymaker v. Adams, 61 Mo.App. 585; Taylor v. Jackson, 83 Mo.App. 649; 1 Wharton on Ev. (2 Ed.), sec. 512-514 and note thereto.
Chas. B. Adams and Wash Adams for respondent.
(1) The court properly refused to submit the issues to a jury. This proceeding is of statutory creation and is brought under section 42, Revised Statutes of 1899. R. S. 1899, sec. 285; Bray v. Thacher, 28 Mo. 132; Whaley v Whaley, 50 Mo. 577; Ely v. Koontz, 167 Mo. 371; State v. Bockstruck, 136 Mo. 335; State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. Withers, 133 Mo. 500; Marshall v. Standard, 24 Mo.App. 192; Barnard v. Milling Co., 79 Mo.App. 153. (2) The suit instituted by the petitioners in this proceeding in the circuit court of Jackson county, seeking the partition and sale of the Missouri real estate belonging to John C. Larwill at the time of his death, was in direct contravention of the last will and codicil of said Larwill. The will and codicil were executed and proved in Ohio according to the laws of Missouri, and have been duly recorded in this State. R. S. 1899, sec. 4383; ex Parte Cubbage v. Franklin, 62 Mo. 328; Sikemier v. Galvin, 124 Mo. 367; Green v. Tittman, 124 Mo. 372. (3) Appellants further complain because no citation or notice of the intended application for letters was given to them and because no inquiry was held as to the qualifications of Joseph H. Larwill to properly manage the estate. The statutes governing such appointments are sections 7, 8 and 11, Revised Statutes 1899. Woerner's American Law of Administration, sec. 243. (4) It is contended that the letters issued to respondent should be revoked because he was and is "a non-resident of this State." The rule is well established in all jurisdictions that the motive or purpose of a change of domicile or residence, is not material. The only question is whether the change of residence is made by the party with the bona fide intention of becoming a resident of another State. Bradley v. Lowry, 122 F. 788; Morris v. Gilmer, 129 U.S. 328; Hall v. Schoenecke, 128 Mo. 661; State ex rel. v. Banta, 71 Mo.App. 32; Green v. Beckwith, 38 Mo. 384; Johnson v. Smith, 43 Mo. 499; Hewitt v. Weatherby, 57 Mo 499; Bank v. Cooper, 40 Mo. 169; Adams v. Abernathy, 37 Mo. 196. (5) In the case of Hathaway, 71 N.Y. 243, it is held that a referee is not a public officer within the meaning of the State constitution, prohibiting judges from exercising any power of appointment to public office. Mechem on Public Officers, sec 1. (6) The non-resident executors named in the will were not authorized to act in this State, either in collecting the debts due the estate, or in disposing of the property for the payment of debts and legacies. Emmons v. Gordon, 140 Mo. 498; Coleman v. Skinker, 56 Mo. 367; R. S. 1899, sec. 254; Spraddling v. Keeton, 15 Mo. 118. (7) It is contended that the will was being contested by petitioners and that the law required respondent's removal pending such litigation. It seems sufficient to say that a will, when once probated, can be contested only by a direct proceeding in the manner specified in sections 4622 and 4636, Revised Statutes 1899. Jourden v. Meier, 31 Mo. 40; Stowe v. Stowe, 140 Mo. 594. (8) Hostility to his coheirs is also alleged as a ground of removal against respondent. The only hostility existing between petitioners and respondent was that initiated by the former,...
To continue reading
Request your trial