McIntosh v. Connecticut General Life Ins. Co., 49548

• Citation: 366 S.W.2d 409
• Decision Date: 08 April 1963
• Docket Number: No. 49548,No. 1,49548,1
• Parties: Pauline Smith McINTOSH, Appellant, v. CONNECTICUT GENERAL LIFE INSURANCE CO., et al., Respondents
• Court: United States State Supreme Court of Missouri

Page 409

366 S.W.2d 409

Pauline Smith McINTOSH, Appellant, v. CONNECTICUT GENERAL LIFE INSURANCE CO., et al., Respondents.

No. 49548.

Supreme Court of Missouri, Division No. 1.

April 8, 1963.

Welker & Young, Web A. Welker and Linus E. Young, Portageville, for appellant.

Ward & Reeves, Caruthersville, for respondents.

COIL, Commissioner.

This is an appeal from a judgment dismissing a suit to partition real estate. Appellant, Pauline McIntosh, was a niece of W. J. McMillen who owned land located in New Madrid County and who died intestate. On November 3, 1961, the McMillen administrator, acting under the provisions of sections 473.460 and 473.487, ¹ filed a petition in probate court for an order to sell the real estate owned by decedent for these reasons:

'Petitioner states that the sale of said real estate is necessary for the best interest of the estate in that the real estate is in different tracts and not contiguous and there are so many different fractional interests that the same can never be divided in kind and for that reason it is to the best interest of the estate and all of the heirs that said real estate be sold by your Administrator as provided by statute.

'Petitioner further states that it would be most advantageous to the estate that said real estate be sold under the original inventory and appraisement at private sale for cash.'

The probate court ordered a hearing on the petition for November 20, 1961, and notice thereof was given to all proper parties. When the matter was reached on the 20th, Mrs. McIntosh, through her attorney, sought a continuance and, after discussion between counsel, the hearing was continued to December 4, 1961. Later, on the same day (November 20), Mrs. McIntosh filed a suit to partition the same real estate as that described in the administrator's petition to sell. Respondent Myrtle B. McMillen and the administrator of the McMillen estate (not a party to the partition suit) filed their motion to dismiss on the ground, inter alia, that the circuit court was without jurisdiction, in that prior jurisdiction over the land in question had been acquired by the probate court. After a change of venue and on March 3, 1962, the parties adduced evidence in support of their respective positions on the motion. On May 16, 1962, the court entered its judgment dismissing the partition suit on the ground that by reason of the petition for an order to sell theretofore filed by the McMillen administrator, the Probate Court of New Madrid County had acquired jurisdiction and that consequently the circuit court was without jurisdiction to entertain a subsequently filed suit to partition the same land.

Section 473.460 is, in pertinent part:

'Purposes for which property may be sold, mortgaged, leased or exchanged,--1. Real or personal property belonging to an estate may be sold, mortgaged, leased or exchanged under court order when necessary for any of the following purposes:

'(1) For the payment of claims allowed against the estate;

'(2) For the payment of any allowance made to the surviving spouse and minor children of the decedent;

'(3) For the payment of any legacy given by the will of the decedent;

'(4) For the payment of expenses of administration, including court costs;

'(5) For the payment of any gift, estate, inheritance or transfer taxes assessed upon the transfer of the estate or due from the decedent or his estate;

'(6) For any other purpose in the best interests of the estate;

* * *

* * *

'4. Real estate shall not be sold, mort gaged or leased under this section except for the payment of claims, taxes, expenses of administration including court costs legacies, the statutory allowances to the surviving spouse or unmarried minor children, the shares of pretermitted heirs or the share of the surviving spouse who elects to take against the will, in any case where the heirs or devisees to whom such real estate passed by descent or under the will, have sold, mortgaged or leased or otherwise transferred such real estate at a time when no order was in effect under section 473.263 for the taking of possession of real estate by the executor or administrator.'

Appellant contends that subparagraph a of foregoing section 473.460 is unconstitutional in that the authority there granted exceeds the jurisdiction vested in probate courts by Section 16, Article V, Missouri Constitution 1945, V.A.M.S., and further that said subsection is void because it is so 'indefinite, meaningless, vague and uncertain' as to be inapplicable to any conceivable set of circumstances upon which it was intended to operate.

Section 16, Article V. Missouri Constitution 1945, is: 'There shall be a probate court in each county with jurisdiction of all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians, and the sale or leasing of lands by executors, administrators, curators and guardians, and of such other matters as are provided in this constitution.'

Respondents contend that the foregoing section expressly grants probate courts jurisdiction 'of all matters pertaining to * * * the sale or leasing of lands by executors, administrators' and others, and, consequently, that section 473.460, subparagraph 6, vests either exclusive jurisdiction in the probate court to sell real estate for the best interests of the estate, or concurrent jurisdiction, under certain circumstances, with the circuit court; that in the latter event the probate court under the facts here, having...