In re Estate of Dildine
| Citation | 239 S.W. 112,293 Mo. 393 |
| Parties | IN THE MATTER OF ESTATE OF JOHN DILDINE; JAMES C. DILDINE et al., Executors, Appellants, v. BERTHA M. DeHART |
| Decision Date | 07 April 1922 |
| Court | United States State Supreme Court of Missouri |
Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
Daniel H. Frost for appellant.
(1) Letters of administration were taken out on October 31, 1918. The record shows that the personal estate, which consisted of household furniture valued at $ 25, was willed by specific legacy. The will left a legacy also of $ 1,200. At that date without regard to the allowance of any debts whatever, the probate court had jurisdiction not only to administer the estate, but to order the sale of the real estate for the payment of said legacy. Thereafter bills were presented to the administrators; these were not allowed until May 16 1919, which was only six and a half months after letters were taken out. (2) The tendency is to vest exclusive jurisdiction in probate court in administration of estates and arm them with ample powers, and they should not be interfered with. 1 Woerner on Adm., sec. 156. (3) Respondent insists that they filed their suit in the circuit court for partition of this land before the administrators filed their petition for sale for payments of debts, thereby falling into the peculiar error of supposing that the probate court's jurisdiction was a matter of a foot race; that it could be deprived of jurisdiction of a matter of which it already had jurisdiction by a delay of a few days in taking certain necessary steps for the sale of this land. They forget that the authority of the administrator to sell land relates back to date of death of deceased, and that creditors and legatees take precedence over heirs, and that a sale by the administrators possesses a superior title to that held by heirs. Grant v Hathaway, 215 Mo. 141. (a) Even after sale by heir, the probate court may still order a sale of interest of heirs to pay debts. Wright v. Green, 239 Mo. 449; Metcalf v. Smith Heirs, 40 Mo. 576. (4) It is the jurisdiction of the circuit court which should be suspended until the estate has been fully administered in the probate court. King v. Ayers, 168 Mo. 250; Mills v. Mills, 141 Mo. 199. (5) Real estate descends cum onere -- immediately comes into custody of the law to be administered. There can be no partition until the estate is settled. Eoff v. Thompkins, 66 Mo. 226. (6) Exclusive jurisdiction over an application to sell lands for payment of debts is conferred on probate courts. And the policy of the courts is to leave everything that pertains to administration of estates to probate courts. And whenever property sought to be reached consists of assets of a deceased debtor which have already been subjected to administrator, other courts should keep their hands off. Board of Public Works v. Columbia College, 17 Wall. 521; French v. Stratton, 79 Mo. 562. (a) The scheme and system of administration and probate law are supposed, by those who are judges of such matters, to be the most perfect and complete system in the world, leaving but few emergencies where other courts can interfere. Scott v. Royston, 223 Mo. 586; Matson and May v. Pearson, 121 Mo.App. 120; Titerington v. Hooker, 58 Mo. 597. (b) Settling accounts of administrators and sale of land of decedent to pay debts are exclusively within the jurisdiction of probate courts and taken out of the jurisdiction of circuit courts. Strode v. Gilpin, 187 Mo. 391; Priest v. Spier, 96 Mo. 111; Nebel v. Brockhorst, 186 Mo.App. 504.
Williams & Robison for respondent.
There is only one question before this court, and that is, is the judgment of the circuit court correct in holding there is no necessity for the sale of the lands by the probate court, and dismissing application of executors for the sale thereof? We maintain that the court was correct in its judgment. Art. 6, sec. 23, Mo. Const.; State ex rel. v. Edward, 162 Mo. 666; Secs. 2559, 2570, R. S. 1909; Tanner v. Tanner, 199 Mo.App. 148; Chrisman v. Divina, 141 Mo. 130; Barnard v. Keathy, 230 Mo. 228; 30 Cyc. p. 198, sec. 10; 7 R. C. L. p. 1067, secs. 105, 106.
This is an appeal from a judgment of the Circuit Court of Clinton County voiding and nullifying an order of the probate court of said county for the sale of real estate to pay debts.
The case was transferred from the Kansas City Court of Appeals, where it was sent on appeal. That court was without jurisdiction, as the action involved title to real estate, which was directly affected by the judgment. [Sec. 12, Art. 6, Mo. Constitution; Edwards v. Railroad, 148 Mo. 513, 50 S.W. 89; Heman v. Wade, 141 Mo. 598, 43 S.W. 162; Whitecotton v. Wilson, 197 S.W. 168; Davis v. Watson, 158 Mo. 192, 59 S.W. 65; Railroad v. Schweitzer, 246 Mo. 122; Jones v. Hogan, 211 Mo. 45, 109 S.W. 641.]
John Dildine died testate in Clinton County on October 26, 1918, and on the 31st of the same month his will was admitted to probate.
The estate consisted of about twenty-five dollars in personal property, and three lots in Cameron, valued at sixty-one hundred dollars.
Reinette B. Henderson, a daughter and one of the executors, was bequeathed twelve hundred dollars, and the residuary clause of the will devised the three lots in controversy to James C. Dildine, a son, Dora A. Pickerel and Bertha M. DeHart, daughters. One of the lots so devised was encumbered for three hundred dollars.
On May 16, 1919, claims amounting to $ 321.34 were allowed against the estate, and on the same day the executors filed their petition for an order to sell the real estate on the ground of deficiency in the personal estate. Pursuant thereto the judge of the probate court immediately and on the same day made an order of publication under the statute, followed on June 28th with citation to Bertha M. DeHart, residing in Clinton County, the only interested devisee (other than the executors) so residing in Clinton County.
Bertha M. DeHart resisted the proceeding and by answer, among other things, said that a suit in partition of said real estate had been filed in the circuit court of said county on April 3, 1919, wherein Bertha M. DeHart and Dora M. Pickerel were plaintiffs, and James C. Dildine and Reinette B. Henderson, executors, and N. S. Goodrich, trustee, and Farmers Bank of Cameron were defendants. She set up in said answer the petition in the partition suit and other proceedings incident thereto, including service of summons on all defendants on April 21, 1919. She challenged the jurisdiction of the probate court to proceed to order the sale of said real estate, on the grounds that the circuit court had drawn to itself "complete and exclusive jurisdiction" at the filing of the partition suit, and that such suit was pending and undetermined.
The probate court made an order of sale in accordance with the petition of the executors, and from this order the said Bertha M. DeHart appealed to the circuit court. Whereupon in a trial de novo the circuit court adjudged that the probate court was without jurisdiction to entertain the petition for sale of real estate to pay debts, because of the pendency of a suit in partition in said court, wherein all parties in interest were either plaintiffs or defendants, and ...
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