Carter v. Bolster

• Decision Date: 03 December 1906
• Citation: 122 Mo. App. 135,98 S.W. 105
• Parties: CARTER v. BOLSTER et al.
• Court: Missouri Court of Appeals

98 S.W. 105

122 Mo. App. 135

CARTER v. BOLSTER et al.

Kansas City Court of Appeals. Missouri.

December 3, 1906.

1. INSANE PERSONS—INQUISITION—JURISDICTION—OWNERS OF PROPERTY.

Where testator provides for the setting aside of property sufficient to produce a certain income to be paid to S. as trustee for F., an incompetent, who shall pay the same out for the benefit of F. without any further authority, F. owns no property, by reason of such provision, within Rev. St. 1899, § 3650, as modified by Laws 1903, p. 200, giving the probate court jurisdiction to inquire into the insanity of a person who is the owner of property.

2. PROHIBITION—WANT OF JURISDICTION.

Writ of prohibition will issue against the exercise of jurisdiction by a court where the facts are undisputed, and, as a matter of law, under them the court is without jurisdiction of the case.

Petition by Frank Carter for writ of prohibition to Charles W. Bolster and others. Writ granted.

E. C. Hall and W. S. Herdon, for petitioner. J. E. Goodrich and Frost & Frost, for respondents.

ELLISON, J.

This proceeding arises on a petition for a writ of prohibition to be issued to the respondent as probate judge of Clinton county. A demurrer has been filed as to the sufficiency of the petition. It appears from the allegations therein that Luther Carter died in February, 1900, leaving a widow and children as well as a will and testament duly executed and which has since been duly probated; that among the provisions of such will are the following: "Fourth: My beloved son, Frank Carter, being incompetent I desire that he shall live with my wife, Margaret S. Carter, so long as he may desire, on the land devised to her as aforesaid and for the care, support and maintenance of my said son, Frank Carter, I hereby set apart from my estate if there be a sufficient amount of personal estate, the sum of six hundred dollars as an annuity to be paid to Samuel L. Carter as trustee for the said Frank Carter, and in case the personal estate be not sufficient for such annuity and the annuity provided for Margaret S. Carter as aforesaid I direct that the same be, and I hereby make the same a charge upon the lands hereinafter devised to my said children, Samuel L. Carter, John W. Carter and Mary E. Walters one-third part each. * * * Eighth: Having full faith and confidence in my son, Samuel L. Carter I do hereby nominate and appoint him to be the executor of this my last will and testament and also as trustee to take charge and care for the annuity above provided for my son, Frank Carter, and he is hereby authorized to pay the same out for the benefit of said Frank Carter without any further authority and I request that he be not required to enter into any bond as my executor." The Frank Carter mentioned in such provisions is the petitioner herein and the Samuel L. Carter therein mentioned is his brother, and he has taken upon himself the duties therein placed upon him by his deceased father. It is alleged that Frank is living with his mother upon the lands devised to her and that the annuity has been regularly paid to him (Samuel) as trustee by the executor, and that Samuel has managed said trust fund and paid out and applied all sums necessary to his (Frank's) care, support, and maintenance, according to the direction of the will. The petition then avers that the petitioner has no property, and that his rights under the aforesaid clauses of the will are his only means of support; that the respondent, as judge of the probate court, on information filed therein charging that the petitioner is a person of unsound mind and incapable of managing his affairs, or of conducting his business, and asking that his sanity be inquired into, to the end that a guardian may be appointed for him, upon filing said information, issued a notice to the petitioner notifying him that inquiry as to his sanity and matters stated in such information would be had in the probate court on December 14, 1905, and that he take notice thereof; that the notice was served upon him; and that he appeared before said court and moved to dismiss the proceeding on the ground that such court had no jurisdiction. The motion set out that the petitioner was not the owner of property; that the provision for petitioner was, by the will, given to Samuel L. Carter as trustee, to be under his sole management and control, and that the probate court had no jurisdiction to control said trustee; that said motion was overruled, and that, over the protest of the petitioner, the respondent proceeded to impanel a jury to inquire into his sanity, and that such jury returned a finding that the petitioner was of unsound mind and incapable of managing his affairs; that the respondent, without right or jurisdiction in the premises, appointed Samuel E. Walters guardian of his person and estate under chapter 39, Rev. St. 1899, to take charge of the trust fund arising under the will and in contravention of its provisions; that said Walters has qualified as such guardian and is attempting to take charge of such fund and to manage and control it under the orders of respondent as such judge of probate. The petition then alleges that the petitioner has no property whereby the probate court or respondent could exercise any jurisdiction in the premises; that, being without any property, the whole proceeding carried on before the respondent is without jurisdiction or legal right, and is an unwarranted assumption of judicial power. A construction of the statute in connection with the provisions of the will above set out will determine the case. The statute (section 3650, Rev. St. 1899) reads: "If information in writing be given to the probate court that any person in its county is an idiot, lunatic or person of unsound mind, and incapable of managing his affairs, and praying that an inquiry thereinto be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury." But afterwards (Laws 1903, p. 200) that statute was amended by adding thereto the following: "Provided that the probate court shall not have jurisdiction to inquire into the insanity of any person who is the owner of no property." It is therefore manifest that, if Frank Carter was not the owner of property, the probate court was without authority to hear the proceedings as to his sanity and to appoint a guardian, and the writ should be made absolute.

After full examination of the arguments and briefs of the respective counsel herein, we have concluded that the will aforesaid did not...