Lamb v. Helm

• Decision Date: 31 March 1874
• Citation: 56 Mo. 420
• Parties: ALFRED W. LAMB, Adm'r pendente lite of JOHN B. HELM, Dec'd, Defendant in Error, v. MARY A. HELM, Adm' with the will annexed of JOHN B. HELM, Deo'd, Plaintiff in Error.
• Court: Missouri Supreme Court

56 Mo. 420

ALFRED W. LAMB, Adm'r pendente lite of JOHN B. HELM, Dec'd, Defendant in Error,

v.MARY A. HELM, Adm' with the will annexed of JOHN B. HELM, Deo'd, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1874.

Error to Hannibal Court of Common Pleas.

Geo. H. Shields, for Plaintiff in Error.

I. The powers of administrators pendente lite are simply those of a collector of the estate, while no authorized person to do so is existing. (Ellis vs. Deane, Beatty, pp. 5-12; Walker vs. Woollaston, 2 P. Wm's, 589; Wills vs. Rich, 2 Atkyn's, 284, 5; 1 Wil. Ex'rs., 311-13.)

II. Such administrator will not be appointed where there is a general administrator appointed and qualified to act. (Searls vs. Scott, 6 S. & M., 246-50; Boyd vs. Swing, Adm., 38 Miss., 182-196; Mortimer vs. Paull, 39 Law J., 47, Pro. Matters; Dayt. Surr., 234.)

III. Nor can he be appointed after probate of will. (Atkinkinson vs. Henshaw, 2 Ves. & Beames, 84, 91, 92; Ball vs. Oliver, 2 Ves. & Beames, 95, 96, 97; Knight vs. Duplessis, 1 Ves., 324; Griffith vs. Frazier, 8 Cranch. [S. C.], 9-19; 1 Lomax Ex'r. §, IV, 165.)

IV. Such administrator will not be appointed unless manifest necessity appear therefor. (Sutton vs. Smith, 1 Lee., 207-9; Maskeline vs. Harrison, 2 Lee., 258-9; Goodrich vs. Jones, 2 Curteis, 453, 454; Dayt. Surr., 231.)

V. An administrator pendente lite is never appointed for the purpose of putting a party in possession of an estate. (Northey vs. Cock, 1 Adams, 326, 329.)

VI. The only limited administrations are those provided for in the statute. The statute is declaratory of the law as it existed before its passage. No power exists in the Probate Court, except the statutory power which is to be construed strictly. (Dayt. Surr., 231 232, 234.)

VII. The administrator does not derive his right or authority from the will, but from the appointment of the court. The executor derives his right to be qualified from the will. His letters are merely an authentication of that power. Hence, no reason exists why, in case of a contested will, an administrator should be substituted by an administrator pendente lite. (Will. Ex'rs, pt. 1, B. 4, 159 to p. [239]; Dayt. Surr., 195, 232, 233; Stagg vs. Green, 47 Mo., 500.)

VIII. If we construe the statute relied on by the plaintiffs by the light of these authorities, the words “if the validity of a will be contested,” are limited to such contests as affect the right of executorship.

The section to be construed prescribes three classes of cases, only, in which the appointing power can be exercised. These classes show, that the question in the mind of the legislature was the executor's right to demand confirmation by the Probate Court of the inchoate authority conferred by the wife. Where this right is disputed, power is granted to substitute limited administrators for the executor. The reason for such appointment is the incapacity of the executor to act, his right being contested.

The construction of the words “some other person” evidently is, that those words mean some person other than the incapacitated or contested executor named in the will. The statute referred to is, in its nature, declaratory of the law as it existed before the statute was passed. (Geyer's Digest, p. 44; 1 Mo., Territorial Laws, 1822, p, 921; Gen. Statutes Mo., 1825, p. 94, § 6; Gen. Statutes Mo., 1835, p. 42, § 9; Gen. Statutes Mo., 1845, p. 64, Ch. 3, § 11; Gen. Statutes Mo., 1855, p. 115, Ch. 2, § 13; Gen. Statutes Mo., 1865, p 481, Ch. 120 § 13; 1 Wagn. Stat. Mo., 1872, p. 72, Chap. 2, Art. 1, § 13.)

In the first of these laws, the power was given to appoint limited administrators during the “minority or absence of the executor,” or in cases of “contested wills,” to appoint a collector to collect and preserve the estate of the decedent until a probate of his will, or administration of his estate be granted.

In 1822, it provided for the appointment of an administrator with limited powers in all three classes of cases named, or “of some person, or persons to collect and preserve the estate.” The power was given to the County Courts or ““clerk in vacation” showing that the intention was to “collect and preserve the estate,” and to have such appointment made, when necessary, before probate of will, but not afterwards. In 1825, the law of 1822 was substantially re-enacted. In 1835, the section as it now stands was enacted at the revising session of the legislature, and was re-enacted without change in 1845, 1855, and 1865.

This section is identically the same in meaning, as the law of 1815,-22, and-25, though expressed more concisely. The same three classes of cases are referred to as in the previous laws.

The central idea of the enactment is, the collection and preservation of the estate still--the appointment of some person whose authority to administer continues till the “executor or regular administrator is qualified to act.” His authority is limited just as in the law of 1815, until the probate of his will, or administration of his estate be granted, because the limitation is to the time, until the “executor or regular administrator is qualified to act.”

This section of 1865, is explained and construed by the laws of 1815,-22 and-25, and the inevitable conclusion is, that it refers to contests prior to probate, and those involving the right to the executorship, and none other.

The statutes show that the power of appointing administrators pendente lite, only exists before probate, in contests involving the “validity of a will,” as affecting the right to be executor, because provision is made for the appointment of an administrator in all cases after probate. (1 Wagn. Stat., p. 72, § 10; p. 77, § 46.)

If necessary to appoint an administrator pendente lite the widow should have been appointed. “Letters of administration shall be granted, first, to the husband or wife; secondly, to those who are entitled to distribution, &c. (1 Wagn. Stat., 72, Chap. 2 § 6; 1 Williams on Exec., 288-9.) “After probate of will, letters testamentary shall be granted to the persons therein appointed executors. If all such persons refuse to act, or be disqualified, letters shall be granted to the person to whom administration would have been granted if there had been no will.” (1 Wagn. Stat., 72, Chap. 2, § 10.) “If all the executors or administrators of an estate die, &c., letters” * * * “shall be granted to those, to whom administration would have been granted if the original letters had not been obtained.” * * * &c. (1 Wagn. Stat., 77, Chap. 2, § 46.)

If these sections mean anything, they mean that the policy of the law is to grant administration in every case to the parties preferred under the law. The general letters of Mary A. Helm were rightly revoked. The case stood exactly as in the case named in the 10th section, where the “executors are disqualified,” and she was entitled to letters pendente lite. Especially so, as the testator requests in his will that the administration of his estate do not pass out of his family. Unless the person entitled to preference in administration is within the cases enumerated in the statute (1 Wagn. Stat., p 75, § 35), he cannot be excluded from his right to administer (Harrison vs. McMahon, 1 Bradf. [Surr.], 283; Coope vs. Loworre, 1 Barb. Chan., 45; Emerson vs. Bowers, 14 N. Y., 449; McMahon vs. Harrison, 10 Barb., 659; Mullanphy vs. County Court, 6 Mo., 563.) There cannot be two administrators at the same time on the same estate. (Post vs. Caulk, 3 Mo., 35; Griffith vs. Frazier, 8 Cranch., 9-19.)

The Probate Court having appointed a general administrator, could not revoke her letters, without cause being shown therefor, and this position is not controverted in the case of of Rogers vs. Dively, 51 Mo., p. 193. That refers to executors alone.

J. L. Robards & T. H. Bacon, for Plaintiff in Error.

The Ecclesiastical Courts “refuse to grant administration pending suit merely to take property out of the hands of a litigant party in possession of it.” (Northey vs. Cock, 1 Ad., 326; Sutton vs. Smith, 1 Ca. Temp. Lee, 207; Maskeline vs. Harrison, 2 Lee, 258; Goodrich vs. Jones, 2 Curteis Ecc., 453; Walker vs. Woolaston, 2 P. W., 576; 1 Williams Ex'rs, 5 Am. Ed., 431; *433; Mortimer vs. Paull, 2 Law Reg. 85.) And our statutes nowhere permit a surrender of property by an administrator to an administrator pendente lite, (Wagn. Stat., p. 77, § 47,) or allow co-ordinate administrations on the same estate. (Post vs. Caulk, 3 Mo., 24, 25; Coltart vs. Allen, 40 Ala., 155; Haynes vs. Meeks, 20 Cal., 288;) and nowhere provide for any suspension of letters of administration, or make the contest of the validity of a will a ground or revocation of such letters. (Wagn. Stat., 72, § 8; Id. 75, §§ 32, 33, 34,35.) And therefore the grant of administration pendente lite, authorized by § 13, applies only to cases where no regular administration is in being. (Minnikhuysen vs. Magraw, 35 Md., 280; Matthews vs. Douthitt, 27 Ala., 273; Hyman vs. Gaskins, 5 Ired., 267; The Justices vs. Selman, 6 Ga., 402; Griffith vs. Frazier, 8 Cranch, 9.)

II. The administrator cum testamento annexo must prove the will of the deceased, (2 Sharsw. Blackst., 508, 1863;) and may prove in solemn form (1 Williams' Ex'rs, 5th Am., 299, side 301); and probate in common form is binding on the world until set aside or reversed. (Jourdan vs. Meier, 31 Mo., 40; Creasy vs. Alverson, 43 Mo., 13; Dilworth vs. Rice, 48 Mo., 124; Dickey vs. Malechi, 6 Mo., 182; Benoist vs. Murrin, 48 Mo., 48; Tapley vs. McPike, 50 Mo., 589; Byrn vs. Fleming, 3 Head., 658, 662.)

III. In the case of a probate in common form, where the will is admitted to probate and the codicils appointing executors are rejected and the widow of the testator is appointed administratrix with the will annexed, upon a contested suit propounding in solemn form said will and codicils, the widow during such contest is entitled to be treated as administratrix pendente lite. (Patton's Appeal, 31 Penn. St.,...