In re Estate of Rooney

• Decision Date: 06 February 1912
• Parties: In re ESTATE OF PETER ROONEY; JOHN A. HYDE, Administrator, Appellant
• Court: Missouri Court of Appeals

143 S.W. 888

163 Mo.App. 389

In re ESTATE OF PETER ROONEY; JOHN A. HYDE, Administrator, Appellant

Court of Appeals of Missouri, St. Louis

February 6, 1912

Appeal from St. Louis City Circuit Court.--Hon. Edwin W. Lee, Judge.

AFFIRMED.

Judgment affirmed.

Henry Rowe and Thos. J. Rowe, Jr., for appellant.

(1) The appeal was properly allowed under the provisions of section 289, Revised Statutes 1909. (2) The jurisdiction of the circuit court to entertain the appeal herein is conclusively established by section 3956, subdivision 4, Revised Statutes 1909.

Clarence T. Case and Oliver DeWerthen for respondent.

The appellate jurisdiction of circuit courts is not derived from section 3956, Revised Statutes 1909. Kenrick v Cole, 46 Mo. 85; 2 Woerner on Administration, sec. 543.

NORTONI J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

On motion, the circuit court dismissed appellants' appeal from the probate court, and from this judgment the present appeal is prosecuted.

The question for decision relates alone to the right of an administrator to appeal to the circuit court from a ruling of the probate court denying his discharge, when it does not appear the administrator had resigned or made a settlement of the estate in the probate court.

The record before us is meager, and it is difficult to ascertain therefrom the status of the estate, in the probate court, of which appellant is administrator. Enough appears, however, to show that appellant is the administrator of the estate of Peter Rooney, deceased, for so much is conceded throughout. As such administrator, appellant filed his motion in the probate court praying that court to discharge him, for the reason that his intestate, Peter Rooney, had, prior to his death, through executing a power of attorney for that purpose, made a gift causa mortis of his entire estate to his brother, Andrew Rooney. The motion recites that the administrator had executed this power of attorney according to its tenor and, therefore moved the probate court to discharge him as administrator. From this we understand that the administrator had, without authority of the probate court whatever, turned over all of the property of the estate to a brother of the deceased under a power of attorney executed by the intestate in his lifetime and because of this he sought to be discharged as administrator, though he had neither resigned that office nor made settlement of the estate in accordance with the statute. The probate court overruled the administrator's motion for such discharge, and from this ruling he prosecuted an appeal to the circuit court. On the motion of persons interested in the estate of Rooney, deceased, the circuit court dismissed the appeal of the administrator as not authorized by the statute.

It is urged that, though the right of appeal here is not afforded under any one of the first fourteen provisions enumerated in section 289, Revised Statutes 1909, pertaining to appeals from the probate to the circuit court, it is authorized under the fifteenth, or general provision of that section, when considered together with section 3956, Revised Statutes 1909 for it is said that statute authorizes appeals from the probate court in all cases not expressly prohibited by law. The right of appeal is purely statutory and there can be no doubt that an appeal will not lie from the probate to the circuit court, unless it is authorized by the statute. [See 2 Woerner's Law of Administration (2 Ed.), sec. 543.] Section 289, Revised Statutes 1909, which is parcel of our statutes on administration, enumerates fourteen specific instances in which an appeal from the probate to the circuit court may be prosecuted, and then provides, as a fifteenth subdivision, in more general terms, to the effect that appeals may be prosecuted "in all other cases where there shall be a final decision of any matter arising under the provisions of articles I to XIII, inclusive, of this chapter." It is conceded here that the present appeal from the probate to the circuit court is not authorized by any one of the first fourteen provisions of section 289, and we perceive nothing in the general provision above quoted which confers the right, for there is involved here no final decision of any matter arising under the provisions of articles I to XIII of the chapter on Administration. The provisions of section 3956, Revised Statutes 1909, to the effect that the circuit court shall have appellate jurisdiction from judgments and orders of the probate court in all cases not expressly prohibited by law, contributes nothing to the right of appeal here, for such is not the purpose of that statute. Instead of granting a right of appeal in any particular case, that statute purports only to confer power and jurisdiction upon the circuit court to hear and determine appeals properly before it from the probate court in cases not prohibited by law. This section certainly does not intend that every order or judgment of the probate court not expressly prohibited is appealable. The section reads, "The circuit courts in the respective counties in which they may be...