Cuendet v. Henderson

• Citation: 166 Mo. 657,66 S.W. 1079
• Parties: CUENDET v. HENDERSON, Judge, et al.
• Decision Date: 19 February 1902
• Court: Missouri Supreme Court

66 S.W. 1079

166 Mo. 657

CUENDET v. HENDERSON, Judge, et al.

Supreme Court of Missouri.

February 19, 1902.

LETTERS OF ADMINISTRATION — REVOCATION — APPEAL — EFFECT AS SUPERSEDEAS — PROHIBITION OF FURTHER PROCEEDINGS.

1. Rev. St. 1899, § 278, confers the right of appeal, among other cases, from an order revoking letters of administration. Section 281 requires the appellant to give an approved bond to prosecute the appeal, and pay all debts, damages, and costs that may be adjudged against him. Section 283 provides that on the filing of an affidavit and bond, and the latter's approval, an appeal shall be granted, but shall not operate as a supersedeas on any other matter relating to the administration of the estate, except that from which the appeal is specially taken. Section 284 provides for the transmission thereupon of a certified transcript of the record and proceeding with the original papers relating to the cause. Section 285, provides that on the filing of such transcript and papers the circuit court shall be possessed of the cause, and shall proceed to hear the same anew, etc. Held, that an appeal taken in compliance therewith, from a revocation of letters of administration operated as a supersedeas, so as to entitle appellant to retain the assets of the estate during its pendency, and the probate court was thereby devested of any further authority in regard thereto during such time.

2. Where, notwithstanding an appeal from an order revoking letters of administration, which operated as a supersedeas, the probate court asserts the right to enforce its order, the supreme court may prevent it from doing so by writ of prohibition.

In banc. Petition for a writ of prohibition by E. R. Cuendet against W. W. Henderson, probate judge, and Albert J. Aiple. Motion to quash the temporary writ issued pursuant thereto overruled, and the preliminary rule made absolute.

Grover & Grover, for plaintiff. Rassieur & Buder, for defendants.

ROBINSON, J.

This is an original proceeding instituted in this court to obtain a writ of prohibition directed to the probate court of the city of St. Louis, prohibiting, during the pendency of plaintiff's appeal, its carrying out or taking any steps whatever to enforce a certain order or decree revoking plaintiff's letters of administration on the estate of E. J. Cuendet. The material facts out of which this controversy arises, as set forth in plaintiff's petition for the writ, are these: The plaintiff is the sole heir and residuary legatee under the will of Eugene J. Cuendet, deceased. In 1894 letters testamentary were duly issued to Thomas Witt, the executor named in the will, who then qualified and entered upon the discharge of his duties as executor. On December 5, 1899, Witt resigned his executorship. The plaintiff being then of age, and entitled under the statute to administer, was by the probate court of the city of St. Louis appointed administrator of the estate with the will annexed, and duly qualified as such administrator by executing and filing a bond in the sum of $340,000, with solvent sureties approved by the court, and thereupon entered upon the discharge of his duties as administrator, and took possession of all property and assets belonging to the estate. On June 15, 1900, William C. Richardson, public administrator of the city of St. Louis in charge of the estate of Uraine Cuendet (plaintiff's mother), presented a petition to the probate court disclosing the fact that the estate of Uraine Cuendet had a claim against the estate of Eugene J. Cuendet, and asking that the letters of administration theretofore granted to plaintiff be revoked. On September 14th following, the probate court revoked plaintiff's letters, and appointed Albert Aiple administrator in his stead. Plaintiff then filed a motion to have set aside the order revoking his letters, and during the pendency of this motion Aiple was permitted to qualify as such administrator. On September 20th the court overruled plaintiff's motion to set aside order of revocation, and plaintiff thereupon filed his affidavits for appeal to the circuit court, one as heir and distributee, and the other in his capacity as administrator of the estate of Eugene J. Cuendet. At the same time the court fixed the amount of the appeal bond to be given by plaintiff in his individual capacity at $30,000, and fixed the amount of his bond as administrator at $250,000, which said bonds were duly executed by the plaintiff with solvent sureties, and approved by the court; and on the same day the court entered orders granting appeals to the circuit court to Engene R. Cuendet, and to Eugene R. Cuendet administrator, and the clerk of the probate court duly transmitted to the circuit clerk a certified transcript of the record and proceedings relating to said application for the revocation of letters of administration, together with the original papers pertaining thereto. Notwithstanding said appeals, and the approval of said appeal bonds therein, and while said appeals were pending in the court, Aiple, claiming to be administrator de bonis non of the estate of E. J. Cuendet, applied to the probate court for an order compelling the plaintiff to make final settlement with said Aiple of his administration of said estate, and asking the court to ascertain the amount of money and property of the estate in plaintiff's possession, and for a judgment in favor of Aiple and against plaintiff, compelling the latter to turn over and deliver to Aiple all the property and assets of said estate in his possession, and for an execution against plaintiff and the sureties of his official bond enforcing such judgment. Upon the filing of said motion the court recognized said Aiple as administrator of the estate of E. J. Cuendet, and ordered a summons to be issued for plaintiff as a basis for issuing execution against him in pursuance of the order revoking his letters. The petition for the writ then concludes as follows: "Your petitioner now alleges that by the orders allowing appeals from the said decree vacating and revoking petitioners' said letters of administration, and by the filing of said appeal bonds, approved and accepted by the said Hon. W. W. Henderson, judge of the probate court, the said judgment and decree vacating and revoking said letters of administration is suspended, and has become inoperative during the pendency of said appeal; and petitioner is still the lawful administrator of the said estate, and as such is vested with title to, and is entitled to the custody, control, and management of, all the property and assets thereof. The said probate court of the city of St. Louis is without jurisdiction, authority, or warrant of law to proceed further under the said order and decree appealed from; and was and is without authority, jurisdiction, or power to appoint and qualify said Aiple as administrator of the estate of E. J. Cuendet, or to recognize him as such administrator; and without power and authority to compel your petitioner, as administrator aforesaid, to make, at this time, final settlement of his administration of said estate; and without jurisdiction, power, and authority to compel your petitioner to turn over and deliver to said Albert J. Aiple, or to any one else who may be appointed by said probate court administrator of the estate of E. J. Cuendet, any and all of the property and assets of the said estate of E. J. Cuendet in the hands of your petitioner as such administrator; and the said Albert J. Aiple is without any legal right, power, or authority to discharge the duties and functions of administrator of said estate, or to be vested with title or to have the custody of the property and assets thereof, and is not so vested with title; nor has said Aiple any right, authority, or legal standing to demand that your petitioner, Eugene R. Cuendet, should make, with him, said Aiple, final settlement or an accounting of petitioner's administration of the said estate of E. J. Cuendet, nor has said Aiple any right or authority or legal standing to demand of your petitioner the delivery to him, said Aiple, of all the personal property, and delivery to him of all the assets of said estate. All of the said acts, orders, decrees, and proceedings of the said Hon. W. W. Henderson, judge of the said probate court of the city of St. Louis, state of Missouri, done, entered, and taken since the filing of said appeal bond, and since the order granting said appeal, are usurpations of judicial power, and in excess of the authority of the said probate court of the city of St. Louis, and under the constitution and laws of the state of Missouri, it is made the care of this honorable court that the said probate court of the city of St. Louis, as well as all other inferior courts, keep within the bounds and limits of their several jurisdictions prescribed to them by the laws of the state. The said property and assets of the estate of E. J. Cuendet now vested in your petitioner under the law, and now in the custody and control of your petitioner, and which said probate court and said defendant Aiple seek to devest out of your petitioner, are of the value of at least thirty thousand dollars ($30,000), and a portion of said property and assets now vested in, and in possession of, your petitioner is personal property of the pecuniary value of at least fifteen thousand dollars ($15,000). Wherefore your petitioners, imploring the aid of this honorable court, pray to be relieved, and that they may have the state's writ of prohibition directed to said Hon. W. W. Henderson, judge of the said probate court of the city of St. Louis, state of Missouri, and to said Albert J. Aiple, to prohibit said Henderson, during the pendency of petitioners' said appeals in said circuit court, and in any other court of competent jurisdiction in which said...