In re Allen's Estate

• Decision Date: 13 April 1925
• Docket Number: No. 24673.,24673.
• Citation: 271 S.W. 755
• Parties: In re ALLEN'S ESTATE. CROSS et al. v. MULLINS.
• Court: Missouri Supreme Court

271 S.W. 755

In re ALLEN'S ESTATE.

CROSS et al. v. MULLINS.

No. 24673.

Supreme Court of Missouri, Division No. 1.

April 13, 1925.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

In the matter of the estate of Charles G. Allen, deceased. The circuit court judgment affirming the judgment of the probate court, revoking the appointment of R. C. Mullins, as administrator, on motion of Frank Cross and another, was affirmed by the Court of Appeals, and the cause certified to the Supreme Court. Affirmed.

W. K. Amick, of St. Joseph, for appellant.

Bresnehen & Burns, of Brookfield, for respondents.

ATWOOD, J.

This cause was certified to the Supreme Court because the decision rendered therein by the Kansas City Court of Appeals is deemed contrary to a previous decision of the St. Louis Court of Appeals rendered in the case of Tittman v. Edwards, 27 Mo. App. 492.

It appears from the record that on March 30, 1922, Charles G. Allen, a fireman in the employ of the Chicago, Burlington & Quincy Railroad Company, died intestate from injuries received the next previous day while engaged in interstate commerce on that road. His wife predeceased him, and his three minor children were kept in the home of his sister, Willie Cross, one of respondents herein, the other respondent, Frank Cross, being her husband, and there they continued to reside until and after the death of their father. Deceased was a resident of Linn county at the time of his death, and owned a small amount of real and personal property situated there. These three children were the sole surviving heirs and distributees of deceased's estate, and all were under 14 years of age when he died. Appellant was public administrator of Linn county, and as such filed the statutory notice that he had taken charge of deceased's estate on April 17, 1922, and on April 26, 1922, he was appointed administrator. Thereafter on the same day, respondent Frank Cross, who was afterward appointed guardian of said minor children, though the date of his appointment does not appear in this record, filed his application to be appointed administrator of the estate of deceased. Respondents subsequently filed in said probate court their amended motion to have appellant removed as such administrator. Upon a hearing the probate court revoked the appellant's appointment. The public administrator took his appeal to the circuit court, where after a trial a like result was had. On appeal properly lodged the Kansas City Court of Appeals affirmed the finding and judgment of the circuit court. It further appears that before any of the above parties filed application to administer the said Frank Cross had agreed with representatives of the Chicago, Burlington & Quincy Railroad Company for the payment of $10,000 in full settlement of its liability on account of Allen's death, and the said R. C. Mullins had arranged through his attorney to file suit on said claim for $35,000 under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), which suit was filed immediately upon his appointment.

Respondents insist that the probate court had no right to appoint appellant as administrator until 30 days had elapsed from the death of deceased, and the persons entitled to distribution of the estate had been cited to appear and qualify for administration, all as provided in section 8, R. S. Mo. 1919.

Appellant contends that the court had jurisdiction to make the appointment under the proviso of section 7, R. S. Mo. 1919, enacted in 1917, and also under section 9, R. S. Mo. 1919. These sections relied upon by appellant and respondents are as follows:

"Sec. 7. Persons entitled to priority in administering. —Letters of administration shall be granted: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation shall believe will best manage and preserve the estate: Provided, however, if the court, or judge in vacation, should believe no one of such persons entitled to administer is a competent and suitable person, some other person than those above mentioned may be appointed.

"Sec. 8. Such persons failing to apply, others may be appointed.—If no such person apply for letters within thirty days after the death of the deceased, the court or judge or clerk may issue citation to him or them, on motion of any person interested, to appear and qualify for administration, giving at least five days' time for that purpose; and if the person or persons so cited fail to administer within the time appointed, letters may be granted to any person whom the court or judge or clerk in vacation may deem most suitable.

"Sec. 9. Or, if they renounce, or are not residents, others may be appointed.—Letters testamentary and of administration may at any time be granted to any person deemed suitable, if the person or persons entitled to preference file their renunciation thereof, in writing, with the clerk of the court, or if proof be made that no such persons reside in this state."

The above three sections should be construed together, giving effect to each as far as possible. The proviso attached to section 7 by its amendment in 1917 simply relieved the court of the necessity which previously existed, of appointing those who under section 7 were entitled to preference. The court or judge in vacation is thereby empowered to appoint "some other person" if he believes that no one of the persons to whom this statute gave preference is "a competent and suitable person," but the amendment does not purport to fix the time when such person shall be appointed. Hence on the face of the...