Linder v. Burns

• Decision Date: 13 June 1922
• Docket Number: No. 17058.,17058.
• Citation: 243 S.W. 361
• Parties: LINDER et al. v. BURNS.
• Court: Missouri Court of Appeals

243 S.W. 361

LINDER et al. v. BURNS.

No. 17058.

St. Louis Court of Appeals. Missouri.

June 13, 1922.

Rehearing Denied July 7, 1922.

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

"Not to be officially published."

Motion by Albert Linder and another for the removal of John L. Burns, as administrator of the estate of Jacob Linder, deceased. From a denial of the application, applicants appeal. Reversed and remanded, with directions to remove the administrator.

R. L. Sutton, of Troy, and Geo. E. Egger, of St. Louis, for appellants.

Creech & Penn and John L. Burns, both of Troy, for respondent.

DAUES, J.

This proceeding originated in the probate court of Lincoln county. The respondent having been appointed administrator of the estate of Jacob Linder, deceased, certain heirs of Jacob Linder filed a motion in the probate court to remove respondent as such administrator. The probate court overruled said motion. An appeal was taken to the circuit court, and from an adverse decision in that court said heirs bring this appeal.

The material facts are as follows: Jacob Linder died on December 24, 1915, in East St. Louis, Ill., leaving a will in the possession of an attorney in that city. By the terms of this will Linder left his entire estate to his wife, at her death to be divided between their four children. No executor was named in the will. The estate consisted of a tract of land of 50 acres in Lincoln county, Mo. The widow died about 10 months after her husband's death. It is admitted that a son, Albert Linder, one of the appellants herein, was the only heir and distributes residing in this state. Nothing was done with reference to the matter of administering upon said estate until about the time of the widow's death. Albert Linder testified that he made an effort to probate his father's will before his mother's death. On February 16, 1916, Albert Linder, who lived in St. Louis, called on his brothers, Frank Under and L. J. Linder, who lived in East St. Louis, Ill., and the matter of the administration of the estate was again discussed. On February 25, 1916, all the heirs joined in a written request, petitioning the probate court of St. Louis, Mo., to appoint Albert Under administrator of said estate. It was then in doubt as to where the legal residence of Jacob Linder was at the time of his death. Albert Linder, with the written request of the other heirs, applied to the probate court of the city of St. Louis for letters of administration, and that court refused to issue same, on the ground that the will was not produced. It seems that some effort had been made by the brothers to get the original will from the attorney's office where it was supposed to be lodged in East St. Louis, but some difficulty was encountered in locating the person who had custody of same. There was some difference of opinion among the heirs as to whether the will was valid. According to the testimony of Albert Linder, it was agreed between the brothers that Frank Linder was to get the will and send same over to St. Louis to Albert Linder for administration.

At any rate, on January 31, 1017, Frank Linder, a resident of East St. Louis, Ill., presented himself to the probate court of Lincoln county, Mo., and there met the respondent, whom he had never met up to that date, and almost immediately thereafter requested him to act as administrator of said estate with will annexed. Frank Linder had immediately theretofore secured his father's will from the attorney in East St. Louis. The probate court being in vacation, the instrument purporting to be the last will was filed in the office of the clerk of the probate court, and on February 5, 1917, in vacation, said will was admitted to probate by the clerk of the probate court, and John L. Burns, the respondent, was appointed administrator with the will annexed.

The application tiled by Burns for letters of administration with the will annexed stated in terms that Albert Linder, one of the appellants herein, was an heir of said Jocob Linder, deceased, and that said Linder was then a resident of the city of St. Louis, Mo.; the will which was before the court designated that Albert Linder was a son of the deceased, and that he was a distributee of the estate under "the will. The application further showed that all the other heirs and distributees were nonresidents of the state of Missouri, or under the age of 21 years. At the time letters were applied for by Burns, he filed a written request by Frank Linder, in which the court was requested to appoint Burns. In this request Frank Linder informs the court that one brother "lives in St. Louis, Mo.; all the rest of said Jacob Linder heirs are nonresidents of the state of Missouri."

On February 12, 1917, the probate court approved the order of the clerk admitting the will to probate, and appointed Burns as administrator with the will annexed. The will was executed on March 30, 1915 and Jacob Linder died, as stated before, on December 24, 1915.

The question had arisen as to the domicile of Jacob Linder at the time of his death. Jacob Linder lived on the farm in Lincoln county up to about six years prior to his death. It seems that Linder and his wife became estranged; the family moving away from the farm, Jacob Linder remaining. About 6 years before his death he moved to St. Louis, living alone and engaging in carpenter work there. He, however, kept the house on the farm in Lincoln county intact; that is, he left a art of the household and kitchen furniture in it, and he returned to this place at least once a year thereafter until the time of his death, and the probate court of Lincoln county found that Jacob Linder had his domicile in Lincoln county at the time of his death.

No citation or notice whatsoever was issued or given to Albert Linder, the resident heir, of the intention to take out letters of administration in Lincoln county, or to have the will probated by any one. Albert Linder was not cited to appear and administer upon said estate, nor did he have any notice whatsoever prior to the appointment of Burns that it was intended by his brother, or any one else, to have the will probated in Lincoln county. Neither did Albert Linder, nor his brother, L. J. Linder, who also resided in East St. Louis, Ill., where Frank Linder resided, have any knowledge of the appointment, or any knowledge of any attempt to appoint Burns as administrator, or to probate the will, or of the intention to probate the will until many months after the appointment was made. On September 30, 1917, upon discovering that the will had been probated in Lincoln county, and learning that Burns had been appointed administrator with the will annexed, Albert Linder immediately appeared before the probate court of that county, and filed his petition to set aside the appointment of Burns as administrator. L. J. Under and certain other heirs joined in the verification of this motion. The petition was denied in the probate court and the appeal in the circuit court resulted likewise.

There is no dispute that Albert Linder was a resident of the city of St. Louis at the time of the death of his father, and at the time of the appointment of Burns as administrator with the will annexed and thereafter. It is admitted that he was a son and heir of Jacob Linder, deceased, and a distributee under his will. Nor is there any question raised that he is not in all respects qualified to administer upon said estate.

It is appellants' insistence that the probate court of Lincoln county was without jurisdiction to appoint respondent as administrator with the will annexed of the estate of Jacob Linder, deceased, for the reason that it appears upon the face of the record that Albert Linder at such time was a resident of the state of Missouri, an heir of the decedent and a distributes of his estate and qualified to administer upon his estate at the time Burns was appointed; that no citation whatsoever was issued to Albert Linder, as the statute requires, and that it is not disputed that the said Albert Linder had never at any time renounced his right to administer upon said estate.

Section 15, R. S. 1909, then operative, is as follows:

"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 * * * a preserve the estate."

Section 16 R. S. 1909, provides:

"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 time appointed, letters may be granted to any person whom the court or judge or clerk in vacation may deem most suitable."

Under section 17, R. S. 1909, other suitable persons may be appointed administrator if those entitled to preference file their renunciation in writing, or if proof be made that no such persons reside in this state. The statutes giving the heir or distributee the right to administer are mandatory, and upon the appearance of such resident heir or distributee not otherwise unfit, it is the duty of the probate court to remove a stranger improvidently appointed.

In Hollingsworth v. Jeffries, 121 Mo. App. 666, 97 S. W. 632, it was decided that under these statutes the next of kin and heirs are entitled to administer in the order mentioned in the statute, and that it is the duty of the court to remove a stranger and appoint a resident heir who had not been cited to administer, and who had not given a written waiver to the right to administer. The court said (121 Mo. App. loc. cit. 666, 667, 97 S. W. loc. cit. 634):

"If husband or wife residing in this state survives the decedent, ...