In re Estate of Brinckwirth

• Decision Date: 04 January 1916
• Citation: 181 S.W. 403,266 Mo. 473
• Parties: IN RE ESTATE OF JOSEPHINE BRINCKWIRTH v. HARRY TROLL, Public Administrator, Appellant
• Court: Missouri Supreme Court

181 S.W. 403

266 Mo. 473

IN RE ESTATE OF JOSEPHINE BRINCKWIRTH v. HARRY TROLL, Public Administrator, Appellant

Supreme Court of Missouri, First Division

January 4, 1916

Appeal from St. Louis City Circuit Court. -- Hon. Irvin B. Barth Judge.

Affirmed.

Marshall & Henderson for appellant.

(1) An order of the probate court is not necessary for the public administrator to take charge of an estate. When he files his notice his act is independent of the probate court. The filing of notice in the office of the clerk of the probate court is sufficient to vest him with administration and he is not required to set out or prove facts which give him a right to administer. His relation to the estate thereafter is the same as if he had taken charge under order of the probate court. Vermillion v. LeClare, 89 Mo.App. 55; Leeper v. Taylor, 111 Mo. 312; In re Hill, 102 Mo.App. 620; Tittman v. Edwards, 27 Mo.App. 495. (2) Where an executor is disqualified or renounced administration is granted the same as if there were an intestacy. In the absence of heirs entitled to preference the public administrator must be appointed. In re Garber, 74 Cal. 338; In re Richardson's Estate, 120 Cal. 344; Speckles v. Public Administrator, 1 Demarest's Rep. (N. Y.) 475; Anderson Committee v. Anderson, 170 (Ky.) S.W. 213. (3) The right of the public administrator to administer as administrator with the will annexed is superior to the nominee of the next of kin disqualified to administer. In Matter of Blank, 2 Redf. Rep. 443. (4) The probate court may appoint the public administrator notwithstanding an expressed wish of deceased, or next of kin, for appointment of another. In re Morgan Estate, 53 Cal. 243; Estate of Hyde, 64 Cal. 228; Hendlee v. Cloud, 51 Mo. 301. (5) The public administrator has authority to take charge of an estate under the Missouri statutes, and he continues in charge until superseded by one having a superior right to administer. Car & Foundry Co. v. Anderson, 211 F. 301; Richardson v. Busch, 198 Mo. 175. (6) The public administrator has a right to continue administration upon an estate, notwithstanding the probate court had appointed some one else administrator and had ordered him to turn over the estate to the administrator appointed. Warren v. Carter, 92 Mo. 288; State ex rel. v. Holman, 93 Mo.App. 611. (7) The public administrator is an officer within the purview of the Constitution. His authority to administer is a right conferred upon him by law. The Constitution provides that no person shall be deprived of property without due process of law. Due process of law is construed to be a reasonable notice and opportunity to be heard in defense of one's rights. The right to exercise the office of public administrator in administering estates is a right which constitutionally cannot be taken away without notice and an opportunity to be heard in defense of his rights. This is a rule of law even where the statute fails to provide for notice. State ex rel. v. Holtcamp, 245 Mo. 655; State ex rel. v. Walbridge, 119 Mo. 383; State ex rel. v. Maroney, 191 Mo. 531; Hunt v. Searcy, 167 Mo. 170.

Schnurmacher & Rassieur for respondents.

If, after granting of letters of administration on the ground of intestacy, a will of the decedent be duly proved up and admitted to probate, the letters of administration are thereby revoked; or, at least, must be revoked and the powers of the administrator cease. Thomas v. Morrisett, 76 Ga. 384; Re Davis Estate, 11 Mont. 196; Dalrymple v. Gamble, 66 Md. 298; 1 Woerner's Am. Law of Adm., sec. 268.

WOODSON, J. Bond, J., concurs in paragraph one and the result.

OPINION

WOODSON, J.

The statement of the facts of this case is very brief and as well or better made by counsel for respondent than I can do, and for that reason I adopt it as my statement of the case, which is as follows:

This is an appeal from the judgment of the circuit court of the city of St. Louis, approving the action of the probate court of said city in vacating the authority of Harry Troll, then Public Administrator, and thereupon appointing John G. Grone and Henry Griesedieck, Jr., administrators, with the will annexed, of the estate of Josephine Brinckwirth, deceased.

Josephine Brinckwirth died March 29, 1911. She was a resident of the city of St. Louis at that time and left an estate which, it was admitted upon the trial, exceeds $ 200,000 in value. She was a widow and her heirs at law were three minor children. John G. Grone, one of the respondents, is a brother of the deceased, and Henry Griesedieck, Jr., the other respondent (who died pending this appeal), was a brother-in-law of the deceased.

On March 30, 1911, Harry Troll, as Public Administrator of the city of St. Louis, filed notice that he took charge of the estate of said decedent, doing so on the supposition that she had died intestate.

On the next day, March 31, 1911, the will of Josephine Brinckwirth was presented for probate and was duly admitted to probate by the probate court of the city of St. Louis; and the will having been so admitted of probate, under section 47, Revised Statutes 1909, the court vacated the authority assumed by the Public Administrator, and appointed Grone and Griesedieck as administrators, with the will annexed, and they duly qualified as such.

Thereupon the Public Administrator took an appeal to the circuit court. In that court a trial de novo was had, with the result that the circuit court took the same action which had been taken by the probate court, and refused to set aside the appointment of Grone and Griesedieck. After an unavailing motion for new trial, the Public Administrator brought the case here by appeal.

Section 47 of the Administration Act, above referred to, reads as follows:

"If, after letters of administration are granted, a will of the deceased be found, and probate thereof granted, the letters shall be revoked, and letters testamentary, or of administration, with the will annexed, shall be granted."

I. There are but two legal propositions presented by this record for determination, and counsel for appellants present their side of the first in the following language:

"An order of the probate court is not necessary for the Public Administrator to take charge of an estate. When he files his notice his act is independent of the probate court. The filing of notice in the office of the clerk of the probate court is sufficient to vest him with administration and he is not required to set out or prove facts which give him a right to administer. His relation to the estate thereafter is the same as if he had taken charge under order of the probate court.

"The Public Administrator has authority to take charge of an estate under the Missouri statutes, and he continues in charge until superseded by one having a superior right to administer."

In support of their position the following authorities are cited: Vermillion v. LeClare, 89 Mo.App. 55, l. c. 60; Leeper v. Taylor, 111 Mo. 312, 19 S.W. 955; In re Estate of Hill, 102 Mo.App. l. c. 617, 77 S.W. 110; Tittmann v. Edwards, 27 Mo.App. 492; American Car & Foundry Co. v. Anderson, 211 F. 301; Richardson v. Busch, 198 Mo. 174, 95 S.W. 894.

These cases, with the exception of the Hill case, substantially hold what is contended for by counsel for appellant; but notwithstanding the ruling there announced the mere fact that the Public Administrator took charge of the estate mentioned under section 305, Revised Statutes 1909, and undertook to administer it, certainly gave him no greater authority or more secure rights in that regard than he would have acquired had he been appointed by the probate court under section 9, Revised Statutes 1909.

That being true, then in my opinion, the position of counsel for appellant is not inconsistent with, nor does it militate in the least against the contention of counsel for respondent regarding this proposition, which is stated in this language:

"If, after granting of letters of administration on the ground of intestacy, a will of the deceased be duly proved and admitted to probate, the letters of administration are thereby revoked; or at least must be revoked and the powers of the administrator cease."

This contention of counsel is precisely what section 47, Revised Statutes 1909, provides shall be done when the ordinary administrator is appointed, and subsequent thereto a will is discovered and duly admitted to probate.

This statute seems to be so clear in meaning that there can be no room for construction. However, similar statutes of other States have been before the courts of those States, which hold they mean just what they say. [Thomas v. Morrisett, 76 Ga. 384; Re Davis' Estate, 11 Mont. 196, 28 P. 645; Dalrymple v. Gamble, 66 Md. 298, 7 A. 683; 1 Woerner's American Law of Administration, sec. 268.]

And as previously stated, there is no rule or reason why this same statute should not also apply to a public administrator who takes charge of an estate under said section 305. [State ex rel. v. Wilson, 216 Mo. 215, 115 S.W. 549; Tarkio Drainage District v. Richardson, 237 Mo. l. c. 49, 139 S.W. 576.]

This proposition is therefore ruled in favor of the respondent.

II. Counsel for appellant next insist that the order of the probate court revoking the authority of the Public Administrator to administer the estate was void because he was not notified of the court's intention to make the order.

This insistence is clearly untenable, for two reasons: first, because he was in court all the time, and had to take notice of all papers, documents, etc., filed in the case where actual notice is not expressly required by statute.

In this case the will was filed, proved and duly probated; and there is no statute which in express terms or by...