In re Wilson's Estate

• Decision Date: 07 May 1929
• Docket Number: No. 20629.,20629.
• Citation: 16 S.W.2d 737
• Parties: In re WILSON'S ESTATE. WILSON v. WILSON.
• Court: Missouri Court of Appeals

16 S.W.2d 737

In re WILSON'S ESTATE WILSON v. WILSON.

No. 20629.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Proceedings by Respino Wilson for the removal of James L. Wilson as administrator of the estate of John M. Wilson, deceased, and for the appointment of himself as administrator. The probate court removed the administrator, and judgment of removal was likewise rendered on trial de novo in the circuit court, and the administrator appeals. Affirmed.

Transferred from Supreme Court 8 S.W. (2d) 973.

Grover C. Huston, of Troy, and Hostetter & Haley, of Bowling Green, for appellant.

Creech & Penn, of Troy, for respondent.

BECKER, J.

This case originated in the probate court, and on an appeal was tried de novo in the circuit court of Lincoln county, where a judgment was rendered removing James L. Wilson, administrator of the estate of John M. Wilson, deceased. James L. Wilson in due course appeals.

There is no dispute as to the facts. On April 12, 1924, John M. Wilson died intestate and unmarried. He left surviving him as his heirs at law and legal distributees of his estate several brothers and sisters, and a niece and a nephew who are the descendents of a deceased sister or brother. The appellant, James L. Wilson, is a son of a surviving brother of the said John M. Wilson, deceased, and therefore is not an heir of the deceased nor a distributee of the decedent's estate.

All of those entitled, under sections 7, 8, and 9, Rev. Stat. of Mo. 1919, to priority of right to administer upon the estate of said John M. Wilson, deceased, with the exception of Respino Wilson, a surviving brother of the deceased, and Rebecca Dougherty, a surviving sister of the deceased, both of whom are and were residents of the state of Missouri, signed a written waiver relinquishing and renouncing their statutory right and preference to administer said estate, which relinquishment was duly filed in the probate court of Lincoln county.

It appears that John M. Wilson, for some time prior and up to the time of his death, was a person of unsound mind, and that his nephew, James L. Wilson, had been the duly appointed, acting, and qualified guardian of his person and estate.

On April 24, 1924, 12 days after the death of the said John M. Wilson, the probate court of Lincoln county appointed the said nephew, James L. Wilson, administrator of his estate. On May 26, 1924, more than 30 days after the death of the deceased, Respino Wilson, brother of the deceased, filed a motion in the probate court of Lincoln county asking that the said appointment of James L. Wilson, as administrator of the estate of the deceased, be revoked and set aside, and requesting that he, the said Respino Wilson, be appointed administrator of said estate in his place. Upon a hearing of said motion the probate court revoked the letters of administration theretofore granted to James L. Wilson, but refused to appoint Respino Wilson administrator of the estate. Thereupon James L. Wilson took an appeal to the circuit court of Lincoln county, where on a trial de novo judgment was rendered removing said James L. Wilson as administrator. In due course an appeal was taken to this court.

The sole assignment of error urged here is that the trial court, in removing appellant as administrator, has misapplied the law in holding that the probate court had no jurisdiction to appoint him as administrator, and that once having appointed him, and he having qualified as such, the trial court had no power to remove him excepting for misconduct or delinquency in the management of his trust.

Sections 7, 8, and 9, Rev. Stat. of Mo. 1919, relating to those to whom letters of administration may be granted, have recently been construed by our Supreme Court in the well-considered opinion by Atwood, J. (In re Allen's Estate, 307 Mo. 674, 271 S. W. 755), and what has been said therein disposes of the question here before us on appeal.

Sections 7, 8, and 9, Rev. Stat. of Mo. 1919, relating to the appointment of an administrator and of the preferences to certain classes, must be construed together, giving effect to each as far as possible. Said sections read as follows:

"Sec. 7. Persons entitled to priority in administering. —Letters of administration shall be granted: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation shall believe will best manage and preserve the estate: Provided, however, if the court, or judge in vacation, should believe no one of such persons entitled to administer is a competent and suitable person, some other person than those above mentioned may be appointed.

"Sec. 8. Such persons failing to apply, others may be appointed.—If no such person apply for letters within thirty days after the death of the deceased, the court or judge or clerk may issue citation to him or them, on motion of any person interested, to appear and qualify for administration, giving at least five days' time for that purpose; and if the person or persons so cited fail to administer within the...