In re Flick's Estate

• Decision Date: 31 March 1908
• Parties: In re FLICK'S ESTATE. FLICK v. SCHENK et al.
• Court: Missouri Supreme Court

110 S.W. 1074

212 Mo. 275

In re FLICK'S ESTATE.

FLICK v. SCHENK et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

Rehearing Denied May 19, 1908.

APPEAL AND ERROR — RIGHT TO APPEAL — APPOINTMENT OF ADMINISTRATOR.

No appeal lies from a probate court order refusing to appoint one as administrator de bonis non, and directing the public administrator to administer the estate.

Appeal from Circuit Court, Scotland County; E. R. McKee, Judge.

In the matter of Sylvanus Flick's estate. H. P. Flick appealed to the St. Louis Court of Appeals from a judgment of the circuit court affirming an order of the probate court refusing to appoint him administrator de bonis non, and directing J. A. Schenk the public administrator to administer the estate, and the Court of Appeals dismissed the appeal, but transferred the cause to the Supreme Court. Judgment of dismissal affirmed.

E. R. Bartlett and O. D. Jones, for appellant. J. M. Jayne, Smoot, Boyd & Smoot, and Lewis Myers, for respondents.

GANTT, J.

This cause has been transferred to this court by the St. Louis Court of Appeals, on the ground that, in the opinion of the judges of that court, their opinion is in conflict with the opinion of the Kansas City Court of Appeals in Burge v. Burge, 94 Mo. App. 15, 67 S. W. 703. In March, 1902, Sylvanus Flick died in Scotland county, the county of his residence. His widow, Mrs. Sarah Flick, administered on his estate, but died before making her first annual settlement. Thereupon Henry P. Flick, one of the sons of Sylvanus and Sarah Flick made formal application to the probate court to be appointed administrator de bonis non, and three of the other heirs at law objected to his appointment, and the matter was heard and the probate court found from the evidence that said Henry P. Flick was not a suitable person to be administrator of said estate, among other grounds, because he had been appointed administrator of his mother, and there would be a conflict of duties if he represented both estates, as there were some conflicting property rights between the two estates. The probate court further found there was no person among the heirs and distributees suitable to be administrator of Sylvanus Flick's estate, and thereupon ordered J. A. Schenk, the public administrator of Scotland county, to take charge of and administer said estate. From this appointment of Schenk and refusal to appoint himself, H. P. Flick appealed to the circuit court of Scotland county. On a trial in the circuit court the judgment of the probate court was in all things affirmed, and from that judgment H. P. Flick appealed to the St. Louis Court of Appeals, and that court on the authority of the decision of this court in Grover v. Fowler, 108 Mo. 465, 18 S. W. 968, dismissed said appeal, but, deeming its judgment in conflict with the decision of the Kansas City Court of Appeals in Burge v. Burge, 94 Mo. App. 15, 67 S. W. 703, transferred the cause to this court.

It is insisted by the appellant, H. P. Flick, that the decision of this court in Grover v. Fowler, 108 Mo. 465, 18 S. W. 968, does not control, because this is an appeal not from the order appointing Schenk administrator, but from the order refusing to appoint him administrator. But we agree with the St. Louis Court of Appeals that the distinction is too attenuated to be of practical application. In Grover v. Fowler, 108 Mo. 465, 18 S. W. 968, both Mrs. Grover and Cockrell had applied for administration, and the probate court appointed Cockrell, and refused Mrs. Grover's application. Mrs. Grover appealed, and sued out a writ of prohibition in this court to prevent the probate court from recognizing Cockrell as administrator pending her appeal, but this court denied prohibition on the ground that Mrs. Grover was not entitled to appeal under section 285, Rev. St. 1889, now section 278, Rev. St. 1899 (Ann. St. 1906, p. 434), and the fifteenth clause of said section. By reference to the order appointing and directing Schenk, the public administrator, to take charge of the unadministered estate of Sylvanus Flick, and denying the application of H. P. Flick, it will be seen the facts are in all substantial respects identical, and the St. Louis Court of Appeals correctly so held. It is insisted, however, that the Court of Appeals...