Rawlings v. Rawlings

• Citation: 39 S.W.2d 367
• Decision Date: 21 May 1931
• Docket Number: 29690
• Parties: RAWLINGS v. RAWLINGS et al
• Court: United States State Supreme Court of Missouri

39 S.W.2d 367

RAWLINGS v. RAWLINGS et al

No. 29690

Supreme Court of Missouri, First Division

May 21, 1931

Strother, Campbell & Strother, of Kansas city, for appellant.

Rich Storts & Storts, of Slater, for respondents.

OPINION

ATWOOD, J.

Counsel for respondents concede that counsel for appellant have correctly set forth the pleadings and record in their statement from which we quote as follows:

'This suit in partition was filed in the Circuit Court March 16 1928, returnable to the May term. The defendants, Albin M. Rawlings, and other defendants, were duly served and at the beginning of the May term, 1928, filed answer admitting among other things that Morality Rawlings died testate leaving a will whereby he devised a life estate in his land to his wife, Mary M. Rawlings, and at her death the land be sold and the proceeds divided among his nine children, and admitting that plaintiff and answering defendants and certain others were tenants in common of said land and asking that said other parties be made defendants, which was accordingly done by amended petition and services on the newly made defendants was duly had for the next term of said Circuit Court.

'Morality Rawlings died in 1890, his will was duly probated, the executor named therein qualified in the probate court, and the estate was duly administered, administration closed and the executor discharged in November, 1892, and said executor died September 12, 1912. The wife and widow Mary M. Rawlings died April 21, 1919.

'On July 3rd, 1928, after the beginning of the suit in partition in the Circuit Court and after the said Albin M. Rawlings had been served and had filed answer therein, he went to the probate court in Saline County, Missouri, and without notice or knowledge of the plaintiff in the present suit, had himself appointed administrator de bonis non with the will annexed of the said Morality Rawlings, although administration on the said Morality Rawlings' estate had been full and complete and the executor of the estate discharged some 36 years prior. This appointment was made without any showing of the statutory requirements for the appointment of an administrator de bonis non as provided in section 46, R. S. Mo. 1919, in that there was no allegation of newly discovered assets remaining unadministered, or of unpaid allowed demands against said estate, as provided by said section, and the appointment of such administrator de bonis non as was had in this case, is, in our opinion, a pure nullity and wholly void.

'At the return term of the Circuit Court for the amended petition, Albin M. Rawlings, administrator de bonis non with the will annexed of the estate of Morality Rawlings, deceased, filed motion to be made party defendant, which motion was sustained by the trial court; said defendant administrator de bonis non immediately entered his appearance in writing and he, with other defendants mentioned in the abstract of the record immediately filed plea in abatement, which plea in abatement was sustained by the trial court and plaintiff's cause dismissed at the following January term of the Circuit Court.

'At the hearing on these motions in the trial court it was urged by the movants that the will of the said Morality Rawlings provided that after the death of his widow his land should be sold by his executor (or succeeding administrator de bonis non) and that to permit partition of the land by the Circuit Court would be doing violence to the terms of said will.

'Reference to the will of Morality Rawlings, deceased, set out in the evidence, shows that the land in question was disposed of in paragraph three thereof. The will describes the real estate and provides that the wife have control and the proceeds thereof during her natural...