Estate of Green

• Court: Missouri Court of Appeals
• Writing for the Court: KAROHL; PUDLOWSKI, P.J., and CRANDALL
• Citation: Estate of Green, 787 S.W.2d 842 (Mo. App. 1990)
• Decision Date: 03 April 1990
• Docket Number: No. 57517,57517
• Parties: In the ESTATE OF Lavarn GREEN, Jr., et al., Minors.

Page 842

787 S.W.2d 842

In the ESTATE OF Lavarn GREEN, Jr., et al., Minors.

No. 57517.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 3, 1990.

Elbert A. Walton, Jr., St. Louis, for appellant.

Claude W. McElwee, Jr., St. Louis, for respondent.

KAROHL, Judge.

Ora Lee Smith, conservator, appeals from an order of the Probate Court of the City of St. Louis removing appellant as conservator for failure to perform her official duties. Appellant's timely motion to set aside the order of removal and revocation of authority was ruled by a commissioner of the probate court. However, this appeal is premature and this court has no jurisdiction because the probate judge neither rejected nor confirmed the order.

A conservator may be removed by revocation of letters of authority. Sections 475.110 and 473.140 RSMo 1986. There are no express provisions for appeal of this order contained in Chapter 475, Probate Code--Guardianship. However, § 475.110 incorporates and makes applicable to conservators the same grounds for removal of a personal representative, and § 472.160.1(9) authorizes an appeal from orders revoking letters.

The necessary facts in the present case are briefly summarized as follows. On March 23, 1988 the probate court notified the conservator to file an annual settlement on or before April 29, 1988. The settlement was not timely filed. On July 20, 1988 the probate court, on its own motion, entered an order "on Ora Lee Smith, guardian herein, to show cause why she should not be removed for failure to file a settlement originally due April 29, 1988." On August 31, 1989 the commissioner of the probate court entered the following order:

Order on Ora Lee Smith, conservator herein, to show cause why she should not be removed for failure to perform her official duties called. Said Ora Lee Smith fails to appear in person or by counsel. Pursuant to said order and on court's own motion Ora Lee Smith removed as conservator for failure to perform her official duties and her authority [is] revoked. Said Ora Lee Smith ordered to file settlement to revocation on or before September 29, 1989.

On August 31, 1989 the probate judge entered a general order "that all orders, judgments and decrees of the commissioner, of this date, Aug. 31, 1989, be and the same are hereby confirmed." On September 6, 1989 conservator filed a motion to set aside order of removal and revocation, or in the alternative, motion for review of the order of the commissioner by the court. The motion acknowledged the order, inter alia, to show cause and alleged the settlement was filed. The minutes of the probate court proceedings indicate the conservator filed an annual settlement for the period in question on October 20, 1988 and an amended settlement for the same period on June 9, 1989.

On October 10, 1989 the commissioner entered an order denying the motion to set aside order of removal and revocation or in the alternative motion for review of the order of the commissioner by the court. The record does not disclose that the probate judge rejected or confirmed the October 10, 1989 order of the commissioner.

Section 478.265...