Erwin's Estate, In re

• Decision Date: 23 January 1981
• Docket Number: No. 11596,11596
• Citation: 611 S.W.2d 564
• Parties: In re the ESTATE OF Olon ERWIN, Deceased. Jerry TINDLE, Mary Ann TINDLE, Martha Ann Brooks, Jerry Lee Tindle, William Tindle, Kenneth Eugene Tindle, and David Tindle, Mary Elizabeth Tindle, and Rebecca Sue Tindle, Minors, by Their Next Friend, Mary Ann Tindle, Plaintiffs-Appellants, v. Elsie B. ERWIN, Administratrix De Bonis Non, With Will Annexed, of the Estate of Olon Erwin, Deceased, Defendant-Respondent, and Benny Marie Wilson, Trustee of Mt. Gilead Cemetery, and Bodily Heirs of Jerry Tindle and Mary Ann Tindle, and Elsie B. Erwin, Individually, Defendants.
• Court: Missouri Court of Appeals

Page 564

611 S.W.2d 564

In re the ESTATE OF Olon ERWIN, Deceased.

Jerry TINDLE, Mary Ann TINDLE, Martha Ann Brooks, Jerry Lee

Tindle, William Tindle, Kenneth Eugene Tindle, and David

Tindle, Mary Elizabeth Tindle, and Rebecca Sue Tindle, Minors, by Their Next Friend, Mary Ann Tindle, Plaintiffs-Appellants, v. Elsie B. ERWIN, Administratrix De Bonis Non, With Will

Annexed, of the Estate of Olon Erwin, Deceased,

Defendant-Respondent,

and

Benny Marie Wilson, Trustee of Mt. Gilead Cemetery, and

Bodily Heirs of Jerry Tindle and Mary Ann Tindle,

and Elsie B. Erwin, Individually, Defendants.

No. 11596.

Missouri Court of Appeals, Southern District Division Two.

Jan. 23, 1981.

Ivella McWhorter Elsey, Springfield, for plaintiffs-appellants.

Gary W. Lynch, Douglas, Douglas & Lynch, Bolivar, for defendant-respondent.

PREWITT, Presiding Judge.

Appellants appeal "from the judgment entered in this action on the 1st day of November, 1979." On that date the probate division of the circuit court denied appellants' objections to a proposed final settlement, approved the final settlement and provided for distribution of the estate's assets.

Three of appellants' points relied on complain of matters occurring in connection with their petition for construction of the decedent's will filed under § 474.520, RSMo 1969, in the probate court. They were denied the requested relief by order of the probate judge dated July 7, 1978, and an appeal was attempted to the circuit court. On June 28, 1979, the probate division of the circuit court dismissed the appeal. No appeal was taken from the order dismissing the appeal. We think that under § 472.160.1(15), RSMo 1978, the order dismissing appellants' appeal to the circuit court was an appealable "final order or judgment of the probate division of the circuit court".

Section 474.520, RSMo 1969, was enacted as a part of the Probate Code in 1955. Prior to then, the probate court could not consider a proceeding instituted solely for the purpose of construing a will, but could construe a will to the extent required by a proceeding within that court's jurisdiction. 3 Maus, Missouri Practice, Probate Law and Practice, § 394. Even without an action under § 474.520, if there was a dispute as to the meaning of a will material to the administration of an estate or the disposition of its assets, the probate court would have to construe it in some proceeding during the administration. Section 474.520 would have no purpose if an appeal could not be taken from the court's order construing the will and a party had to wait and appeal from a different order appealable under § 472.160 or from the order approving the final settlement and ordering distribution. That would be the same situation as existed before § 474.520 was enacted.

Section 472.160 allows many matters of importance to be resolved while the estate is open, and prevents one complex appeal from all matters that occurred during administration of the estate. State ex rel. Estate of Seiser v. Lasky, 565 S.W.2d 792, 794 (Mo.App.1978). See also Keet & Rountree Dry Goods Co. v. Williams, 202 S.W. 620, 622 (Mo.App.1918). Section 472.160 contemplates that as to any specific proceeding, all issues be fully adjudicated, or the order is not appealable. In re Estate of Ritter, 510 S.W.2d 188, 189 (Mo.App.1974). When appellants' appeal was dismissed by the probate division of the circuit court, all issues relating to will construction were determined. We believe it would be impractical, and was not intended, for will construction issues to be appealable only in connection with other appealable matters or after the final settlement is approved and the order of distribution made. The construction of the will might affect many of the proceedings in the estate and there could be a significant savings in time and labor to have a final determination on appeal before the estate has been fully administrated and is in an apparent position to be closed. We hold that issues regarding the construction of the will were final before this appeal and are not now before us.

Appellants also complain of the appointment of respondent as administratrix following the death of the executor and of the circuit court's ruling on August 9, 1979, denying appellants' motion to set aside that appointment. No appeal was taken from the order denying that motion. An appeal lies from an order refusing to remove or revoke the appointment of an administrator. State ex rel. Kassen v. Carver, 355 S.W.2d 324, 331 (Mo.App.1962); Hausaman v. Bruce, 238 Mo.App. 1173, 185 S.W.2d 32, 35 (1944); 3 Maus, Missouri Practice, Probate Law and Practice, § 566. As no appeal was taken from that order, it is final and not subject to our review.

Appellants contend that they were improperly denied two requests for change of judge. The first request stated that because of bias and prejudice they could not have an impartial hearing before the Probate Judge in their "action to construe the will". The second request was filed with their motion to set aside the appointment of the administratrix, and while it is not clear that it is limited to that proceeding, it would appear to be. Even if the requests should have...