Carroll v. Reid

• Decision Date: 12 November 1900
• Citation: 59 S.W. 69,158 Mo. 319
• Parties: CARROLL v. REID.
• Court: Missouri Supreme Court

59 S.W. 69

158 Mo. 319

CARROLL v. REID.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

WILL CONTEST — APPEAL — ADMINISTRATOR PENDENTE LITE — BOND — NECESSITY.

Rev. St. 1889, § 13, provides that, if a will is contested, letters of administration shall be granted during the term of such contest. An appeal was taken from a judgment of the circuit court upholding decedent's will, but no appeal bond was given. Held, that the executor under the will was not entitled to possession of the estate, as against the administrator pendente lite, on the ground that the appeal did not suspend the judgment of the circuit court.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Action by Thomas H. Carroll, executor, against James H. Reid, to require defendant to deliver the estate of John Carlisle, deceased, to plaintiff, as executor under decedent's will. From a judgment of the circuit court sustaining a judgment of the probate court refusing to make the order, plaintiff appeals. Affirmed.

N. T. Gentry and Wellington Gordon, for appellant. C. B. Sebastain and Webster Gordon, for respondent.

VALLIANT, J.

This cause originated in the probate court of Boone county, was taken by appeal to the circuit court, and thence to this court by appeal. It is a controversy between the plaintiff (appellant), who is the executor nominated in the will of John Carlisle, deceased, and defendant (respondent), who is the administrator pendente lite of that estate while a contest goes on over the will. The facts are that the will was duly admitted to probate in the probate court, and Carroll qualified as executor. Then one of the heirs at law filed suit in the circuit court contesting the validity of the will. Upon the trial of that cause there was a verdict and judgment that the paper writing in question was the last will and testament of John Carlisle, deceased. The plaintiff in that suit appealed from that judgment to this court, and the cause is now pending here. No appeal bond was given in that case. After the appeal had been taken, a copy of the judgment of the circuit court, properly certified, was filed in the probate court by the executor (appellant here), who also filed a petition in that court, of which due notice to defendant was given, asking the court to require the administrator pendente lite to deliver the estate into his hands as executor under the will. The probate court heard the petition, and refused to make such order, whereupon ...