In re Campbell's Estate
| Decision Date | 29 March 1918 |
| Docket Number | No. 19085.,19085. |
| Citation | 202 S.W. 1114,274 Mo. 343 |
| Parties | In re CAMPBELL'S ESTATE. LEAHY v. CAMPBELL et al. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.
In the matter of the estate of James Campbell, deceased. From an order of the circuit court, on appeal by Florence A. Campbell and others, reversing an order of the probate court suspending the authority of the executors under the will, and appointing J. S. Leahy administrator pendente lite, he appeals. Appeal dismissed.
Wm. C. Marshall, Clans. P. Williams, Geo. B.. Webster, and Major & Revelle, all of St. Louis, for appellant. Judson, Green & Henry, Schnurmacher & Rassieur, Samuel A. Mitchell, and Morton Jourdan, of St. Louis, Sullivan & Cromwell, of New York City, and Edw. V. P. Schneiderhahn, of St. Louis, for respondents.
The case now here originated in the probate court of the city of St. Louis. James Campbell died June 12, 1914, leaving a will by the terms of which' the Mercantile Trust Company was made the executor. This will was on June 16, 1914, duly probated in the probate court of the city of St. Louis, and the Mercantile Trust Company, duly qualified as executor, and letters testamentary were issued to it by that court, and said Mercantile Trust Company entered upon the discharge of its duties as such executor. Whilst the Mercantile Trust Company had possession of and was administering upon the estate of the said James Campbell, Margaret C. Harrison and others instituted a suit in the circuit court contesting this will. The filing of this suit was in the following October.
After the filing of this contest proceeding the present case originated in the probate court by the filing of the following petition:
"
This petition was contested in the probate court. Mr. Leahy was not a party to that contest, and in the very nature of things could not have been a party. The probate court in an opinion filed made the following statement:
"The authority of the Mercantile Trust Company, as executor under the will of James Campbell, is hereby suspended, and is ordered to settle to such suspension with the administrator pendente lite, and John S. Leahy is hereby appointed administrator pendente lite of the estate of said James Campbell, deceased, and upon giving bond with sufficient surety approved by the court in the sum of ten million dollars, the court reserving the right to increase his said bond if at any time during the administration of the estate the reasonable value of the assets of said estate should require additional security."
The same in modified form was included in a final order made the day Mr. Leahy tendered his bond and had the same approved. This modified order, fixing a temporary and a final bond, will be noted in the opinion. This order was entered of record a day or so after the filing of the opinion mentioned, supra.
It is important here to note the appeal which was actually taken. Four parties appealed from the order of the probate court, but it is important to get the appeal which they actually took. They all appealed from that portion of the order of the probate court suspending the Mercantile Trust Company as executor, Mrs. Campbell and Mrs. Burkham (nee Campbell) joined in one affidavit. In their affidavit they appealed, in the language of the affidavit, "from the order of October 22, 1914, suspending and revoking letters testamentary of Mercantile Trust Company, executor of the last will of said James Campbell, deceased."
The affidavits of the other two appellants, Mercantile Trust Company and St. Louis University, are more general, but it is clear that their appeal was to the same effect as that of Mrs. Campbell and Mrs. Burkham. In fact the order of the probate court granting the appeals so shows. This order as to Mercantile Trust Company reads:
"I do further certify that on the 28th day of October, 1914, in vacation, after the adjournment of said court for the September term, 1914, thereof and within ten days thereafter, the Mercantile Trust Company, executor of the last will of James Campbell, deceased, filed in my office an affidavit and bond for an appeal from the order of said court, of date October 22, 1914, suspending the letters testamentary granted to the Mercantile Trust Company, as executor of the last will of said James Campbell, deceased, to the circuit court, city of St. Louis, which said affidavit and bond were duly approved by the judge of said probate court and said appeal allowed." (The italics are ours.)
The order granting the appeals to Mrs. Campbell, Mrs. Burkham, and the St. Louis University are in the same language, and they need not be quoted. Leahy was never a party to the contest, unless the order appointing him had the effect of making him a party.
The judgment of the circuit court, which is appealed from in the case before us, contains this language:
"Therefore the application of the contestants to suspend the letters testamentary of the executor under said will for the appointment of an administrator pendente lite is denied."
The application referred to in this judgment we have set out in full above. It is the application of Margaret C. Harrison et al. This application the probate court sustained, and this application on trial de novo in the circuit court, said circuit, by the judgment above denied. Neither Margaret C. Harrison nor either of her four coapplicants took any appeal from the judgment of the circuit court denying their application. They remained mute, satisfied with the judgment from which this appeal was taken. Leahy alone undertakes to appeal. This sufficiently outlines the case.
I. We are of the opinion that Leahy was not a party to the proceeding disclosed by this record, and for that reason his appeal should be dismissed. We have purposely and at length set out the record in this case, to the end that it might be seen who were the real parties interested in this proceeding. No appeal was taken from the order appointing Leahy administrator pendente lite. The probate court's order we have set out in the statement so shows. This record says that the Mercantile Trust Company and the other appellants "filed in my office an affidavit and bond for an appeal from the order of said court, of date October 22, 1914, suspending the letters testamentary granted to the Mercantile Trust Company, as executor of the last will of said James Campbell, deceased, to the circuit court, city of St. Louis, which said affidavit and bond were duly approved by the judge of said probate court and said appeal allowed." So ran all the appeals taken. No appeal was taken from that portion of the said order designating Leahy as administrator pendente lite. The circuit court never tried that matter, as its judgment shows, because that court by its judgment only said: "Therefore the application of the contestants to suspend the letters testamentary of the executor under said will and for the appointment of an administrator pendente lite is denied." The whole question in the circuit court was that portion of the probate court order which suspended the letters testamentary of the Mercantile Trust Company. The whole thing decided there was that the application of Margaret C. Harrison et al. should be denied. The contest in the probate court and in the circuit court was one between Margaret Harrison et al., applicants for administrator pendente lite, on the one side, and the Mercantile Trust Company, testamentary executor, and the devisees under the will, on the other side. Leahy was not a party to this fight in the probate court, and could not have been in the very nature of things. Even after he was appointed no appeal was taken from that portion of the order.
The circuit court only acquired jurisdiction over the matter litigated and fought out in the probate court from which the appeal was taken. The appeal bonds given did not act as supersedeas to any other matter. In Branson v. Branson, 102 Mo. loc cit. 620, 15 S. W. 75, Black, J., has well said:
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In re Franz Estate, 36033.
...party has no right to appeal. Leahy v. Mercantile Trust Co., 296 Mo. 594; McLain v. K.C. Bridge Co., 88 S.W. (2d) 1022; Leahy v. Campbell, 274 Mo. 343. (b) The statute allowing appeals formerly allowed it "to any person aggrieved by any judgment" (R.S. 1879, sec. 1018), but this section was......
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...Company had ceased to be a party defendant, having been dismissed as a defendant, and, therefore, could not appeal. [Leahy v. Campbell, 274 Mo. 343, 202 S.W. 1114.] The plaintiff further contends, that as the Paper Company filed no motion for a new trial after final judgment, that no appeal......
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