In re Estate of Berger
| Citation | 133 S.W. 96,152 Mo.App. 663 |
| Parties | IN THE MATTER OF THE ESTATE OF HENRY BERGER, Deceased, BERNARD GREENSFELDER, Administrator Pendente Lite |
| Decision Date | 03 January 1911 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Henry H. Furth and Shepard R. Evans for appellant.
(1) The jurisdiction of probate courts to grant and revoke letters testamentary and letters of administration is exclusive. Art 6, Constitution of Missouri, sec. 34; R. S. 1899, sec. 1753. (2) The trial in the circuit court on appeal from the probate court is a trial anew of the whole case and the court is invested with power to review every item. In re Boothe's Estate, 38 Mo.App. 456; In re Meeker's Estate, 45 Mo.App. 195; In re Danforth's Estate, 66 Mo.App. 586; In re Ansley's Estate, 95 Mo.App. 332; Springfield Grocer Co. v. Walton, 95 Mo.App. 529. (3) In appeals from the probate court, the circuit court acts for the probate court. No written pleading being required in the probate court, none are needed in the circuit court on appeal. Clark v. Bettelheim, 144 Mo. 258. (4) Failure to file exceptions in the probate court is no bar to review of an item in the circuit court there being no statute requiring the filing of written exceptions. In re Glover's Estate, 127 Mo. 157.
Henderson Marshall & Becker for respondent.
(1) The legality of the appointment of an administrator cannot be inquired into collaterally, and to attempt to do so by filing exceptions to a settlement is a collateral attack. This is as true where the public administrator takes charge of an estate as where the probate court appoints one as administrator. R. S. 1899, sec. 292; Bradford v. Wolfe, 103 Mo. 391; Adams v. Larrimore, 51 Mo. 130; State to use Betts v. Purdy, 67 Mo. 89; Leeper v. Taylor, 111 Mo. 312. (2) No order of the probate court was or is necessary appointing the public administrator as the administrator of the estate or directing him to take charge thereof. Wetzel v. Waters, 18 Mo. 396. (3) If the appellant wanted to take the position that the respondent was an administrator de son tort, he should have sued him in a separate action as such, and not have attempted to raise that question by exception to his report.
This is a controversy between Bernard Greensfelder, administrator, pendente lite, of the estate of Henry Berger, deceased, and Harry Troll, public administrator of the city of St. Louis, lately in charge of said estate, arising upon exceptions by the administrator, pendente lite, (appellant) to the settlement of the public administrator in the probate court of the city of St. Louis.
Henry Berger died at the Jewish Hospital in St. Louis on August 11, 1908, leaving an estate amounting to $ 15,379.40, consisting (1) of a certificate of deposit in the National Bank of Commerce for $ 5200, which was in the possession of the officers of the Jewish Hospital; (2) some clothes and personal effects also in the possession of the Jewish Hospital; (3) an account of $ 1159, due the deceased by the O. J. Lewis Mercantile Company; (4) a deposit account in the State National Bank of $ 7945.66; all of which the public administrator reduced to possession. The deceased left no relatives in the State of Missouri, his only relations living in Germany. On August 13, 1908, the public administrator took possession of and began to administer the estate, filing an inventory and appraisement, employing attorneys, collecting the assets, attending to claims presented, paying funeral bills, giving notice to creditors, and paying court costs and incidental expenses. Shortly after taking possession of the estate and receiving the assets, he was notified that deceased left a will in favor of the hospital, but before it was probated, two other wills were offered for probate, one of them giving the estate to the brothers and sisters of the deceased, and the other dividing the estate, one-half to various Jewish charities, and one-half to the Grand Army of the Republic. This last mentioned will was admitted to probate on September 28, 1908, and was ultimately established on a contest in the circuit court on January 6, 1910. Under this will, J. M. Wall was named as executor, and letters were issued to him by the probate court on September 28, 1908. Mr. Wall filed a motion to require the public administrator to account for the assets in his hands, but before such settlement and account could be had, the contest of the will was begun in the circuit court and Bernard Greensfelder (appellant herein) was appointed administrator pendente lite. On December 17, 1908, Mr. Greensfelder filed a petition in the probate court to require respondent (the public administrator) to account to him, and, on December 21, 1908, the public administrator filed his account in the probate court in which he claimed credits for disbursements to the amount of $ 538.85, including $ 100 for attorneys' fee, $ 250 for commissions and affidavits, $ 28.35 for court costs, cash, $ 10, cash to witnesses and appraisers, $ 5, cash for notice of letters, $ 4, notary fee, $ 1.50, funeral bill, $ 140, to which account appellant filed his exceptions in writing. On a hearing, the appellant's exceptions overruled, but the item of "commissions" was reduced $ 100, and the public administrator filed a supplemental report in accordance with this order of the probate court; whereupon an appeal was taken by Bernard Greensfelder to the circuit court. The appellant's exceptions to the original account of the public administrator in general words excepted "to all of the items of disbursement claimed" and were based solely upon the ground that the public administrator had unlawfully taken charge of the estate and was a mere intruder. When the cause came on for trial in the circuit court, the public administrator filed a motion to dismiss the appeal for the reason that the written exceptions filed by appellant in the probate court to the settlement attempted only to attack the authority of the public administrator to take charge of the estate and was not a motion to revoke the authority of the public administrator and that his authority could only be questioned in a direct proceeding.
The judge of the circuit court heard the evidence, stating at the time the motion was argued that he would withhold his ruling on the motion and hear the evidence. The testimony tended to establish the facts set out as grounds for appellant's exceptions to the public administrator's settlement in the probate court; that is, that the public administrator had no authority to take charge of the estate. On February 7 1910, the motion to dismiss the appeal was sustained by the circuit court. On February 25, 1910, appellant filed a motion to set aside the order dismissing the appeal, and on March 4, 1910, the circuit court overruled his motion and entered the following judgment: "The court having heard and duly considered the motion to dismiss the appeal, heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained; that the appeal herein be dismissed and that the clerk of this court certify to the St. Louis probate court a copy of this order together with the original papers in this cause, and that the costs of this proceeding be paid by the estate of Henry Berger, deceased." Whereupon, the administrator pendente lite perfected an appeal to the St. Louis Court of Appeals. The cause was thereupon transferred to this court, and...
To continue reading
Request your trial