Brinkley v. Allen

• Decision Date: 30 September 1940
• Docket Number: No. 4-6073.,4-6073.
• Citation: 143 S.W.2d 187
• Parties: BRINKLEY et al. v. ALLEN.
• Court: Arkansas Supreme Court

143 S.W.2d 187

BRINKLEY et al. v. ALLEN.

No. 4-6073.

Supreme Court of Arkansas.

September 30, 1940.

Appeal from Probate Court, Pulaski County; Frank H. Dodge, Chancellor.

Suit by Dr. John R. Brinkley and another against Charles F. Allen, administrator of the estate of Oliver S. McKibben, deceased, for revocation of letters of administration granted to defendant. From a judgment for defendant, the plaintiffs appeal.

Affirmed.

Pace & Davis, Joe Norbury, and Tom W. Campbell, all of Little Rock, for appellants.

Troy W. Lewis and Carl E. Langston, both of Little Rock, for appellee.

GRIFFIN SMITH, Chief Justice.

Oliver S. McKibben died intestate at his home in Kansas, and his daughter, Mrs. Sylvia Boulanger, was appointed domiciliary administratrix. Mrs. Boulanger and a brother, W. S. McKibben, of Oklahoma, were the decedent's only children.

Subsequent to her appointment as administratrix, Mrs. Boulanger and W. S. McKibben appeared personally in probate court at Little Rock and requested appointment of Charles F. Allen as administrator of their father's estate.¹

Allen was appointed, and with approval of the court entered into a contract with Troy W. Lewis and Carl E. Langston to bring suit for recovery of $750 paid the Brinkley Hospitals, and for damages. Specifically, it is charged that appellee's intestate entered the Brinkley Hospitals for treatment; that he suffered injuries through negligent acts of the Hospital's agents, servants, and employees, and, in effect, that these transactions constitute a cause or causes of action; that they are property situated within the state of Arkansas, and that collection and disposal of such assets should be by an ancillary administrator. Allen duly executed bond.² Shortly after letters of administration had been issued to appellee, he brought suit for damages in the U. S. District Court at Little Rock.³

May 17, 1940, appellants filed their petition for revocation of letters of administration granted to appellee. It was alleged that appellee's intestate left no assets in Arkansas and that "* * * there is not now and never has been any creditor of the said Oliver S. McKibben nor of his estate in the state of Arkansas".

It is insisted that the recoveries contended for in the federal court proceeding are matters which might have been sued on by the domiciliary administratrix. The further contention is that Allen's petition shows upon its face that the Pulaski probate court did not have jurisdiction to grant letters, and "* * * said letters of administration are null and void for the reason that this court had no jurisdiction to grant same, for the reasons that the residence of said decedent was, at the time of his death, and long had been in the state of Kansas; that he died in the state of Kansas. * * *" Finally, it was urged that unless the court cancelled the letters, Allen would present such authority to the U. S. District Court in proof of his right to maintain the suit for damages.

Appellants insist that § 5 of Pope's Digest⁴ is mandatory. They argue that Arkansas has no statute authorizing appointment of an ancillary administrator.

Appellee challenges the right of appellants to appeal from the probate order refusing to revoke the letters.

We have no statute expressly conferring the right to petition for revocation of letters of administration. Section 2885 of Pope's Digest authorizes appeals to circuit court from all final probate orders and judgments,⁵ but the right of appeal is restricted to "the party aggrieved" who must file an affidavit to the effect that the appeal is taken because of such aggrievement, and not for the purpose of vexation or delay.

The interest of appellants is not in assets of the estate, nor in distribution. Appellants are parties to whom the estate has turned for substantial compensation which, in the circumstances, and under our laws, is property, for the collection of which suit may be maintained. It is insisted by appellants that the situs of the property is in Kansas, and that its fixation there is not altered by reason of the fact that the cause of action is transitory. If this should be conceded, still the question of appellants' right to question appointment of the ancillary administrator is an issue which, if here determined against appellants, makes it unnecessary to pass upon validity of the appointment.

In 23 Corpus Juris, p. 1103, § 278, it is said that persons acting in their individual capacity are entitled to ask for the revocation of letters only when they are interested in the estate. Cases decided by the courts of Georgia, Idaho, Illinois, Indiana, Mississippi, New York, and Rhode Island, are cited as authority for the rule. There is the same requirement in respect of the right to petition for removal of ancillary administrators.

Beginning on page 117 of Corpus Juris, vol. 23, § 298, it is said: "While an executor or administrator may sometimes be removed by the court on its own motion, or on the suggestion of an amicus curiae, an application for such removal can, as a general rule, be made only by a person interested, such as the widow of the decedent, an heir or distributee, a legatee or devisee, or a creditor of the estate".

American Jurisprudence, vol. 21, p. 463, § 159, sums up the decisions in a paragraph that reads: "Proceedings for the removal of an executor or administrator are usually initiated by application or petition within the time prescribed by law, to the probate court; * * * such application or petition must be presented by a party who is entitled to apply for removal — that is, a party having some interest recognized by law".

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