In re Breck

• Citation: 158 S.W. 843,252 Mo. 302
• Parties: In re LETITIA TODD BRECK and BARBARA BRECK; LEWIS B. TEBBETTS, Petitioner, v. REBECCA RICKART and LLOYD H. RICKART
• Decision Date: 10 July 1913
• Court: Missouri Supreme Court

158 S.W. 843

252 Mo. 302

In re LETITIA TODD BRECK and BARBARA BRECK; LEWIS B. TEBBETTS, Petitioner, v. REBECCA RICKART and LLOYD H. RICKART

Supreme Court of Missouri

July 10, 1913

Writ quashed.

J. D Johnson and Loomis C. Johnson for petitioner.

(1) In certiorari, it is proper for a superior court to exercise its supervisory powers (1st) where the inferior court has acted without jurisdiction; and (2nd) where, having jurisdiction it has acted in excess thereof; or (3rd) where it appears on the face of the record that the trial court rendered a judgment which it had no right in law to render. Railroad v. Board of Equalization, 64 Mo. 308; State ex rel v. Neosho, 57 Mo.App. 198; Railroad v. Young, 96 Mo. 43; State ex rel. v. Moniteau Co. Ct., 45 Mo.App. 387; State v. Schneider, 47 Mo.App. 669; State ex rel. v. Reynolds, 190 Mo. 583. (2) The probate court being a court of limited jurisdiction, there are no intendments in favor of its jurisdiction and therefore no matters are to be held within its jurisdiction except they expressly appear to be so. Ex parte O'Brien, 127 Mo. 486; Rohland v. Railroad, 89 Mo. 180; State v Metzger, 26 Mo. 65. (3) And hence it is competent to attack the jurisdictional recitals in the judgment of such court. Ex parte O'Brien, 127 Mo. 491. (4) Recitals of facts contained in the petition for the writ of certiorari or in the writ itself, not controverted by the return, must be taken as admitted. State ex rel. v. Stephens, 146 Mo. 681; State ex rel. v. McDavid, 84 Mo.App. 47; State ex rel. v. Moore, 84 Mo.App. 19. (5) The provisions of the statutes, insofar as they relate to the time in which bond shall be given by testamentary guardians, are directory merely and not mandatory. Secs. 408, 409, R.S. 1909; State ex rel. v. Lafayette Co. Ct., 41 Mo. 554; State ex rel. v. Churchill, 41 Mo. 43; State ex rel. v. Howard Co. Ct., 41 Mo. 252; State ex rel. v. Texas Co. Ct., 44 Mo. 230. (6) If the statute (section 409) is to be construed to provide that the testamentary guardian shall notify the probate court of his acceptance of the testamentary guardianship within six months, then the same principle applies, and such provision is directory merely. Sec. 409, R.S. 1909; cases cited under point one. (7) If the reason for a law fails, the law itself does not apply (cessante ratio, cessat ipsa lex). Russell v. Russell, 122 Mo. 238; Schultz v. Sutter, 3 Mo.App. 141; Costigan v. Tr. Co., 38 Mo.App. 225; Boyle v. Mo. Pac., 21 Mo.App. 425; Smelting Co. v. Stevenson, 4 L.R.A. 62. Nor does the law require that a useless, or needless thing be done. Lumber Co. v. Knight, 157 Mo. 379. The requirement as to the giving of bond by the testamentary guardian is for the purpose of protecting the estate of the ward, coming in the hands of the guardian. Sec. 424, R.S. 1909; State ex rel. v. Tittman, 134 Mo. 162; State ex rel. v. Bolte, 72 Mo. 272; State ex rel. v. Weaver, 92 Mo 673. Hence, if, as here, the guardian is possessed of no property belonging to the ward then there can be no property interest to be protected by a bond, and the reason for the application of the statute being absent the statute does not apply. (8) The statutes provide that the guardian shall give bond in twice the amount of the ward's estate coming into his hands. Secs. 408 and 424, R.S. 1909. Applying these statutes to the case presented at bar, Tebbetts, the testamentary guardian, could have been required to give bond only for twice the amount of nothing or nothing -- an absurdity. Lumber Co. v. Knight, 157 Mo. 379. (9) Under the terms of the will, Tebbetts was appointed guardian only of the persons of the minors and not of their estates. Whatever property the Breck children may have acquired from their mother passed not to Tebbetts as testamentary guardian, but to Tebbetts and DeCamp as trustees. (10) The record shows that the testamentary guardian notified the probate court of his acceptance of the guardianship and offered to give bond long before the probate court attempted to appoint a statutory guardian. Under the authorities cited under point 5, such acceptance and offer were binding on the court and constituted a sufficient compliance with the law by the testamentary guardian. Hence at the time the respondent attempted to appoint Rebecca Rickart, statutory guardian, relator Tebbetts was the lawful guardian of the Breck minors, and the probate court was without power to make the Rickart appointment without first revoking Tebbetts' appointment under the will. Bass v. Putnam, 79 Mo.App. 274. (11) It is conceded that, if this court finds after a review of the record of the probate court in the certiorari proceeding herein that the order of the probate court appointing a statutory guardian was and is a valid order, the writ of habeas corpus should be quashed and the Breck minors remanded to the custody of Rebecca Rickart. (12) Assuming, but not conceding, that the plea of res adjudicata made by the respondent in her return is, on the face of the record pleaded by her, a good and sufficient plea, it is apparent that if this court in the certiorari proceedings holds the order of Judge Holtcamp to be void, then a different state of facts immediately arises than upon which the judgment of the circuit court of the city of St. Louis in the habeas corpus proceedings there was predicated, and the respondent's plea must, of necessity, therefore, fail. Howe v. State, 9 Mo. 482; Weir v. Morley, 99 Mo. 489.

Frank X. Hiemenz for respondents.

(1) Probate courts have exclusive jurisdiction over the appointment of guardians of minors; our Constitution does not establish, but provides for, probate courts in each county and fixes a jurisdiction which cannot be taken away by the Legislature; hence probate courts possess general jurisdiction over particular subjects. Constitution, sec. 34, art. 6. (2) Every testamentary guardian must qualify under the statutes; failing so to do, the probate court may appoint another. Secs. 408 and 409, R.S. 1909; Woerner on Guardianship, p. 58; Davidson v. Koehler, 76 Ind. 417; Wadsworth v. Connell, 104 Ill. 375. (3) The right to a testamentary guardianship must be claimed within six months from the probate of the will or it is lost. Woerner on Guardianship, p. 58. (4) Testamentary guardians are governed like all other guardians and must comply with the law relating to general guardians. Sec. 408, R.S. 1909. (5) Certiorari only brings up the record, and only such matters as appear from the face thereof and which go to the jurisdiction of the tribunal to which the writ is directed can be reviewed by such writ. Ward v. Board of Equalization, 135 Mo. 319; State ex rel. v. Patterson, 229 Mo. 369. (6) All guardians must give bond before entering upon the duties of their office and guardians of the estate must give bond in double the amount the value of the estate. Sec. 424, R.S. 1909. (7) All guardians must in some manner bring themselves under the jurisdiction of the probate court, by appointment, as general guardians, and by acceptance, as testamentary guardians and letters of guardianship must be issued to them. The probate court must be in a position at all times to exercise jurisdiction and general supervision over the person holding the office of guardian. (8) The appointment of a testamentary guardian by law is only the nomination of him for the office of guardian. It has no greater legal effect until the person nominated complies with the terms of Secs. 408 and 409, R.S. 1909. (9) If the probate court is satisfied that it will be for the advantage of minors to appoint a curator of the estate different from the guardian of the estate, it has power so to do. Sec. 413, R.S. 1909. (10) Respondents are not required by law to keep a record of testamentary guardians who fail to accept and give bond as required by Secs. 408 and 409, R.S. 1909, hence it will be presumed on certiorari that respondent obeyed the law and would not have proceeded with the hearing if the testamentary guardian had accepted and given bond within six months after the probate of the will. State ex rel. v. Andrae, 216 Mo. 640. (11) Facts tending to show a judgment or order of a probate court void, for want of jurisdiction, should be found on the face of a record, otherwise regularity will be presumed. Desloge v. Tucker, 196 Mo. 601.

FARIS, J. Brown, Bond and Walker, JJ., concur; Graves, J., concurs in separate opinion in which Lamm, C. J., and Woodson, J., concur. Graves, concurring and dissenting.

OPINION

In Banc.

Habeas Corpus.

FARIS J.

This is an original proceeding in habeas corpus by virtue of which the petitioner, Lewis B. Tebbetts, is seeking to obtain from respondents the custody of Letitia Todd Breck and Barbara Breck, who are minors, aged thirteen and twelve years, respectively.

Respondents are husband and wife. They base their right to the custody of the said Letitia and Barbara (hereafter for the sake of brevity called the "Breck children") upon the fact that they were on the 11th day of March, 1912, appointed by the probate court of the city of St. Louis guardian of the persons and curator of the estates, respectively, of said minors. Both parents of the Breck children are dead. The last survivor of these parents, Ellen M. Breck, their mother, died on the 15th day of December, 1905, testate, providing in her will as to her children, as follows:

"2d. I nominate and appoint my father, L. B. Tebbetts, guardian of my said children, and hereby confer upon him all the rights powers and authority, which a testamentary guardian is entitled to exercise under the laws of the State of Missouri. Should he fail to qualify and act as such guardian; or should he, for any cause, cease to act as such guardian, after qualifying as such, I nominate and appoint my bro...