In re Estate of Looney

Citation86 S.W. 564,112 Mo.App. 195
PartiesIn Re ESTATE OF LOONEY; LOONEY, Appellant, v. BROWNING, etc., Respondent
Decision Date04 April 1905
CourtCourt of Appeal of Missouri (US)

Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.

AFFIRMED.

Judgment affirmed.

J. W Limbaugh and T. D. Hines for appellant.

An appeal lies from a judgment of the probate court in cases of this kind. R. S. 1899, sec. 3535; R. S. 1899, sec. 278, sub 15; Garrison v. Lyle, 38 Mo.App. 558; Burge v. Burge, 94, Mo.App. 20, 67 S.W. 703; State ex rel. Betts v. Megown, 89 Mo. 156; State v. Mitchell, 3 Brevard (S. C.) 520; Fletcher v. Fletcher, 59 Vt. 98; State v. Williams, 9 Gill (Md.) 173; Senseman's Appeal, 21 Penn. St. 331; Schouler on Executors and Administrators, 161.

W. H. Miller for respondent.

No appeal will lie from a judgment or order of probate court appointing an administrator or guardian. It is fundamental that no appeal can be taken from any order of a probate court unless specifically provided for by statute. Section 3535, R. S. 1899, reads as follows: "Appeals shall be allowed from any final order or judgment of the probate court under this chapter at any time during the term or within six months thereafter in like manner and with the same effect as appeals are allowed in cases of administration of the estates of deceased persons." State ex rel. Grover v. Fowler, 108 Mo. 465, 18 S.W. 968; Burge v. Burge, 94 Mo.App. 20, 67 S.W. 703.

OPINION

GOODE, J.

The contest in this case is over the appointment of a curator of the estate of Mamie P. Looney, a minor child and the daughter of J. R. Looney, deceased. T. J. Browning was appointed curator of the minor's estate by the probate court of Cape Girardeau county. About a year earlier he had been appointed administrator of the estate of the deceased father of the minor. Browning was also the guardian of the person of the minor at the time he was appointed curator. The mother of the child died in childbirth and the father took the child immediately afterwards to Browning, who was his neighbor and friend, and entrusted her to Browning's care. J. R. Looney died in 1892 when his child was about three years old, leaving an estate worth $ 15,000, of which the minor was the heir. On February 9, 1903, O. B. Looney, a banker residing in Kansas and brother of the deceased father, filed a suggestion in the probate court that the infant's estate was without a curator and asked the court to appoint Wm. C. Cracraft, of Cape Girardeau county, curator. Two days after, Browning filed a petition asking that he be appointed curator. The probate court heard evidence on the suggestion of O. B. Looney and the application of Browning and appointed the latter curator, who qualified by giving bond in the sum of $ 30,000. Afterwards O. B. Looney appealed to the circuit court from the order appointing Browning. The latter court dismissed the appeal on Browning's motion and from the judgment of dismissal O. B. Looney has prosecuted an appeal to this court.

The question for decision is whether an appeal lies from an order of the probate court appointing a curator for the estate of a minor. The chapter of the Revised Statutes respecting guardians and curators says appeals shall be allowed from any final order or judgment of the probate court in matters arising under the chapter, with the same effect and in the same manner as appeals are allowed in cases of administration of estates of deceased persons. R. S. 1899, ch. 34, sec 3535. For the appellant it is contended the appointment of a curator is a final order or judgment within the meaning of that section, because, it disposes of the question of the right to the care and custody of the minor's estate. There are cases in other States which sanction that proposition. Senseman's Appeal, 21 Pa. 331; Ex parte Miller, 109 Cal. 643, 42 P. 428; Isaacs v. Taylor, 3 Dana 600; Weisne's Appeal, 39 Conn. 537. Our statute relating to guardians and curators is in pari materia with the administration statute and the two groups of laws receive as far as possible, a uniform construction. The section of the statute providing for appeals from final orders and judgments of probate courts in administration proceedings, enumerates fourteen specific orders from which appeals may be taken and concludes with a fifteenth clause allowing an appeal "in all other cases where there shall be a final decision of any matter arising under the provisions of this chapter." That clause is analogous to one in the chapter on guardians and curators allowing an appeal from a...

To continue reading

Request your trial
6 cases
  • Bopst v. Williams
    • United States
    • United States State Supreme Court of Missouri
    • April 9, 1921
    ...... v. Johnson, 125 Mo. 213; McKinzie v. Donnell, . 151 Mo. 450; Cox v. Boyce, 152 Mo. 582; Desloge. v. Tucker, 196 Mo. 601; In re Estate of Jarboe v. Jarboe, 227 Mo. 99; Pearson v. Murray, 230 Mo. 167; Dorrance v. Dorrance, 242 Mo. 662. (8) It is. urged below by plaintiff that ......
  • In re Estate of Campbell
    • United States
    • United States State Supreme Court of Missouri
    • April 27, 1918
    ......43; Baptist. Church v. Robberson, 71 Mo. 348; In re Crouse, . 140 Mo.App. 545; State ex rel. v. Fowler, 108 Mo. 465; In re Flick, 212 Mo. 275, 136 Mo.App. 164;. State v. Reddish, 148 Mo.App. 721; State v. Holtcamp, 185 S.W. 203; Marshall v. Shoemaker, . 164 Mo.App. 429; Looney v. Browning, 112 Mo.App. 195; Sheridan v. Fleming, 93 Mo. 321; Railroad. v. St. Louis, 92 Mo. 160; Aldridge v. Spears, . 101 Mo. 400; Haynes v. County Court, 135 Mo.App. 108; Scott County v. Leftwich, 145 Mo. 26; State. v. Fraker, 166 Mo. 140. It is plain from the foregoing,. that ......
  • E. R. Hawkins & Co. v. Quinette
    • United States
    • Court of Appeal of Missouri (US)
    • April 4, 1911
    ...(1) An appeal will not lie from an order appointing or refusing to appoint an administrator. Flick v. Schenk, 212 Mo. 275; Looney v. Browning, 112 Mo.App. 195; ex rel. v. Fowler, 108 Mo. 465. (2) That order of the probate court is not subject to attack or review, for it would be a collatera......
  • In re Guardianship of McMenamy
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1925
    ...... therefore, he was a proper person to act as her co-guardian,. and could not be required to account for her separate estate,. alleged by him to have been given by her to him, but not in. writing. The amended reply specifically denied the fact of. such alleged gift and ... Admire, 118 Mo. 91; Kidder v. Wright, 72. Mo.App. 380; Breed v. Hobart, 187 Mo. 140; State. ex rel. v. Fowler, 108 Mo. 465; Looney v. Browning, 112 Mo.App. 195; State ex rel. v. Guinotte, 113 Mo.App. 399; Bussiere v. Sayman, . 257 Mo. 303. (4) The probate court has power ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT