Lucitt v. Toohey's Estate

• Decision Date: 11 January 1936
• Docket Number: 33027
• Citation: 89 S.W.2d 662,338 Mo. 343
• Parties: Hattie Lucitt, Appellant, v. Estate of Jennette Toohey, Sabina Myers Stecknist and Fred W. Klaber, Administrator of the Estate of Jennette Toohey
• Court: Missouri Supreme Court

89 S.W.2d 662

338 Mo. 343

Hattie Lucitt, Appellant, v. Estate of Jennette Toohey, Sabina Myers Stecknist and Fred W. Klaber, Administrator of the Estate of Jennette Toohey

No. 33027

Supreme Court of Missouri

January 11, 1936

Rehearing Overruled January 11, 1936.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Reversed and remanded (with directions).

Robert E. Rooney and Charles F. Johnson for appellant.

(1) The court erred in removing the executrix without any complaint filed against her and wholly without any notice to her after the will was proved up and after she was appointed and made bond. State v. Holtcamp, 14 S.W.2d 650; State ex rel. v. Bird, 253 Mo. 580, 162 S.W. 122; St. Louis v. Hollrah, 175 Mo. 85; Kinnerk v. Smith, 41 S.W.2d 381. (2) The court erred in setting aside the probate of the will after same had been proved up in simple form and without any notice to the executrix of the will. Authorities above cited. State ex rel. Smith v. Williams, 275 S.W. 536. (3) The court erred in setting aside of its own motion its order and judgment admitting to probate an instrument purporting to be the last will and testament of Jennette Toohey and also its order appointing Hattie Lucitt executrix of the estate of Jennette Toohey. Kennerk v. Smith, 41 S.W.2d 385; State ex rel. Smith v. Williams, 310 Mo. 267, 275 S.W. 534; State ex rel. Barlow v. Holtcamp, 322 Mo. 258, 14 S.W.2d 650. (4) The circuit court erred in not permitting appellants to try this case de novo upon appeal from probate court. Sec. 292, R. S. 1929; Perron's Estate, 39 S.W.2d 460; State ex rel. Smith v. Williams, 310 Mo. 267, 275 S.W. 534. (5) It was the plain duty of the probate court to appoint the executrix named in the will. R. S. 1929, secs. 11, 14; State ex rel. v. Williams, 310 Mo. 267, 275 S.W. 534. (6) The court after appointment of executrix named in the will and her qualification had no right to revoke her letters except in accordance with the statute. R. S. 1929, sec. 43.

James P. Aylward, George V. Aylward and Terence M. O'Brien for respondents.

(1) This appeal should be dismissed and appellant's complaints are not properly here for review because the appeal from the probate to the circuit court was not taken within ten days after the term at which the orders complained of were made, as required by Section 286, Revised Statutes 1929. (a) Appellant's contention that her motion to set aside the orders filed within the term postponed the running of the time limit for taking an appeal is not well taken, because the powers and procedure of probate courts are fixed by statute (State ex rel. Barlow v. Holtcamp, 14 S.W.2d 650; State ex rel. Baker v. Bird, 253 Mo. 589, 162 S.W. 122), and the statutes do not provide for such a motion. Further, by expressly mentioning motions for new trial in connection with circuit court procedure (Sec. 1005, R. S. 1929) and failing to mention them in connection with probate procedure, the Legislature has, by inference, excluded them from probate practice. State ex inf. v. Sweaney, 270 Mo. 692, 195 S.W. 714; Keane v. Strodtman, 18 S.W.2d 898. (2) This appeal should be dismissed and review is precluded because the orders complained of are not appealable. First, the order setting aside the previous order admitting the will to probate is not appealable, because no right of appeal exists except where given by the statute. Bussieke's Admr. v. Sayman, 165 S.W. 798. The statute giving the right of appeal (Sec. 284, R. S. 1929) names only one instance which it might be argued was applicable, i. e., "in all other cases where there shall be a final decision," but an order setting aside a previous order made the same term is not a final decision. Aull v. St. Louis Trust Co., 149 Mo. 13, 50 S.W. 289; Rottmann v. Schmucker, 94 Mo. 144, 7 S.W. 117; Bussieke's Admr. v. Sayman, 165 S.W. 799; In re Gillis' Estate, 33 S.W.2d 974. Furthermore, appellant actually is prosecuting this appeal in her capacity as executrix and an executor has not sufficient legal interest to maintain an appeal from a will contest proceeding. Braeuel v. Reuther, 270 Mo. 609, 193 S.W. 285; Shock v. Berry, 221 Mo.App. 719, 285 S.W. 122.

OPINION

Frank, J.

This cause originated in the Probate Court of Jackson County. On appeal to the circuit court of that county the judgment of the probate court was affirmed, and the case is here on appeal.

The record shows that on April 23, 1930, during the February Term, 1930, in the Probate Court of Jackson County, an instrument of writing purporting to be the last will and testament of Jennette Toohey, deceased, was duly probated as such. On April 25, 1930, during the same term of court, appellant, Hattie Lucitt, was appointed executrix of said will, and thereupon said executrix gave bond as such, which said bond was approved by the court. Afterwards, on May 2, 1930, and during the same February Term, the court, on its own motion, set aside all of aforesaid orders, and continued the hearing on the application to probate said purported will until May 5, 1930. On May 5, 1930, and during the February Term, 1930, the parties being present by their attorneys, the motion to probate said purported will was taken up, heard and considered by the court and said purported will was by the court rejected and probate thereof was refused. On May 6, 1930, during the February Term, 1930, Fred W. Klaber, public administrator of Jackson County was duly appointed and qualified as administrator of said estate.

Thereafter, on May 8, 1930, during the February Term, 1930, appellant, Hattie Lucitt, by attorney filed a motion asking that the orders setting aside the probate of the will and her appointment as executrix, and the order refusing the probate of the will, all be set aside. Appellant's motion to set aside such orders was overruled on May 24, 1930, same being the sixth day of the May Term, 1930. On the same day, on application of appellant, an appeal was granted to the Circuit Court of Jackson County. On trial of said cause in the circuit court, the judgment of the probate court was affirmed, and the case was brought here by appeal.

Respondents have filed a motion to dismiss the appeal herein on three grounds, (1) because the appeal was not taken within the time provided by statute, (2) because appellant's statement does not comply with rule fifteen of this court, and (3) because no appeal lies from the orders complained of.

We will discuss the third ground of the motion first.

Section 284, Revised Statutes 1929, enumerates the decisions of the probate court from which appeals may be allowed to the circuit court. That statute reads as follows:

"Appeals shall be allowed from the decision of the probate court to the circuit court, in the following cases: First, on all demands against an estate exceeding ten dollars; second, on all settlements of executors and administrators; third, on all apportionments among creditors, legatees or distributees; fourth, on all orders directing the payment of legacies, making distribution or making allowances to the widow; fifth, on all orders for the sale of personal estate because distribution cannot be made in kind; sixth, on all orders for the sale of real estate; seventh, on judgments for waste; eighth, on proceedings to recover balances escheated to the state; ninth, on all orders revoking letters testamentary or of administration; tenth, on orders making allowances for the expenses of administration; eleventh, on orders for the specific execution of contracts; twelfth, on orders compelling legatees and distributees to refund; thirteenth, on the refusal of the court to order sale of real estate to pay debts or legacies; fourteenth, on refusal of the court to order distribution or apportionment among creditors; fifteenth, and in all other cases where there shall be a final decision of any matter arising under the provisions of articles 1 to 13, inclusive, of this chapter. And the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration."

The orders complained of are, (1) the order setting aside the admission of the will to probate, (2) the order setting aside the appointment of appellant as executrix of said will, (3) the order rejecting the will, and (4) the order appointing respondent, Klaber, administrator of said estate.

No appeal lies from any of the orders complained of. The statute above quoted enumerates fifteen specified cases in which an appeal lies from the decision of the probate court. Neither of the orders in question fall within the class of orders enumerated in the statute. Take first the order setting aside the order admitting the purported will to probate. It is clear that no such order is specifically mentioned in the statute. It is equally clear that under no reasonable construction of the statute can it be held that such an order comes within the class of orders and judgments enumerated in the statute from which an appeal is authorized.

Contention is made that the order comes within the fifteenth specification of the statute which authorizes an appeal from all final decisions. The fault in this contention is that the order in question is not a final judgment. It is a mere interlocutory order made during the progress of the hearing in the probate court. The order setting...