Johnson v. Brewn
| Decision Date | 17 March 1919 |
| Citation | 210 S.W. 55,277 Mo. 392 |
| Parties | GEORGE R. JOHNSON v. MARTHA ANN BREWN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Kimbrough Stone, Judge.
Reversed and remanded.
John H Gatley, Wm. S. Bray and H. J. Emerson for appellants.
(1) During the pendency of a suit contesting a will by the terms of which an executor has been appointed, said executor's powers as such cease and he is not the proper person to petition the probate court for the sale of real estate for the purpose of paying debts of the decedent, and any action by the probate court on said application, is coram non judice. Sec. 21, R. S. 1909; Brinckwirth's Estate v Troll, 266 Mo. 473; Stark v. Kirchgraber, 186 Mo. 663; Miller v. Staggs, 266 Mo. 449; State ex rel. Hamilton v. Guinotte, 156 Mo. 153; State ex rel. Ashton v. Imel, 243 Mo. 519. (2) If after the granting of letters testamentary to an executor appointed in a will, upon the probating thereof, the will is contested by a suit duly filed in the circuit court, such letters testamentary are thereby revoked or at least must be revoked and the powers of the executor cease. Sec. 21, R. S. 1909; State ex rel. v. Guinotte, 156 Mo. 519; Rogers et al. v. Dively, 51 Mo. 193; State ex rel. Ashton v. Imel, 243 Mo. 185; Brinckwirth's Estate v. Troll, 181 S.W. 403. (3) A petition to sell land of decedent for the payment of his debts, made by the executor appointed in a will (duly probated in the probate court, but afterwards declared void by the circuit court in a contest on same) made by said executor to the probate court after the filing of said contest, is not made by the proper party and does not give the probate court jurisdiction over the land and such executor's deed purporting to convey said land under and pursuant to the orders of the probate court, is a nullity. Cases supra.
This is an action to determine title to certain real estate in Jackson County. The plaintiff claims title under an executor's deed made by the executor of the will of Sarah Talley, deceased. The appellants here are heirs of Sarah Talley. Other heirs of Sarah Talley were made defendants, but did not appear at the trial and have not appealed.
Sarah Talley died in March, 1895. On March 24, 1895, her will was presented for probate and duly probated by the probate court of Jackson County. The will named N. J. Sechrest as executor. On March 29, 1895, Sechrest duly qualified and by order of the probate court took charge of the estate and entered upon his duties as executor.
On May 20, 1895, an action was begun in the circuit court of Jackson County by certain heirs of Sarah Talley, to contest her will.
On May 25, 1897, the executor, Sechrest, made application to the probate court to sell the real estate in controversy here for the purpose of paying the debts of the deceased. August 9, 1897, the probate court ordered the sale of said real estate. On February 14, 1898, the executor made a deed purporting to convey the land in controversy in pursuance of the said order of the probate court.
In the meantime Sechrest, who was made a party to the suit to contest the will, filed his answer to said suit September 20, 1897. On September 21, 1898, the circuit court in which said suit was pending rendered judgment declaring the instrument which was admitted to probate in the probate court was not the will of Sarah Talley.
It will be seen from this brief statement of the principal facts that at the time the executor filed application in the probate court to sell the real estate in controversy the will contest was pending, and he was made a party to it. It was pending and undisposed of when he made the sale and executed the deed under which the plaintiff claims.
The circuit court rendered judgment in favor of the plaintiff, determining that the plaintiff George R. Johnson was the owner in fee simple of the real estate in controversy, having acquired the same through the said deed. The defendants appealed.
I. The trial court gave a declaration of law to the effect that if the executor under the will, before the institution of the contest, was duly qualified and acting as such under the orders of the probate court, he remained such with full power to act under orders of said court until the said probate court, by appropriate order, made upon its own motion or upon application of some interested party, should appoint an administrator to act during the contest proceeding. The appellants challenge that statement of the law.
The principal question for determination then is whether the filing in the circuit court of a suit to contest a will, which has been probated in the probate court, ipso facto vacates an order probating the will without any formal order of the probate court.
It has always been held, in the early and late cases, that when a suit to contest a will is filed in the circuit court under Section 555, Revised Statutes 1909, the suit operates in the nature of an appeal from the order of the probate court probating the will. "The Legislature may undoubtedly provide other modes besides the ordinary form of appeal, by which the controlling power of the circuit court may be exercised." [Dickey v. Malechi, 6 Mo. 177.] "There was no appeal in form, but the result of the process was the transference of the contest from an inferior to a superior court." [Benoist v. Murrin, 48 Mo. 48.] "Such contest destroys the present efficacy of the mere formal probate in the probate court." [State ex rel. v. Imel, 243 Mo. 180, 147 S.W. 989.]
Since the statute, Section 4056, Revised Statutes 1909, gives probate courts original jurisdiction "over all matters pertaining to probate business, to granting letters testamentary and of administration," the jurisdiction which the circuit court acquires in a contest case is derivative and not original. [State ex rel. v. Guinotte, 156 Mo. 513, 57 S.W. 281.]
The logical conclusion from these interpretations of the statute would furnish an affirmative answer to the question propounded, the filing of a contest operates ipso facto to vacate an order of the probate court admitting a will to probate.
The section of the statute which the circuit court doubtless had in mind as more particularly affecting the case is Section 21, Revised Statutes 1909, as follows:
Section 21 does not provide that when a contest is filed the probate court shall revoke the order admitting the will to probate and granting letters testamentary; it only provides that the court shall appoint a temporary administrator. The obvious inference is that the probate court is powerless to revoke the order because the order is...
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