Rogers v. Dively

• Decision Date: 31 January 1873
• Citation: 51 Mo. 193
• Parties: MARY GILLIS ROGERS, et al., Respondent, v. MICHAEL DIVELY, Administrator of WILLIAM GILLIS, deceased, Appellant.
• Court: Missouri Supreme Court

51 Mo. 193

MARY GILLIS ROGERS, et al., Respondent,

v.MICHAEL DIVELY, Administrator of WILLIAM GILLIS, deceased, Appellant.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Jackson Circuit Court.

Hicks, Sheley and Black, for Appellant.

I. Sec. 13, Art. I of the Administration Act relates wholly to cases where the will is first presented for probate, and makes provisions only where the nominated executor for the time being cannot be appointed. This construction gives to the statute its full force and does no violence to its language, as does the construction placed upon it by respondents.

J. Merriman & W. Hough, for Respondents.

I. The object of § 13, Art. 1, of the Act on Executors and Administrators, undoubtedly was, that the will should not be executed while its validity was being contested, and that the property devised should be placed in the hands of some disinterested person, to be preserved for the parties who might appear to be entitled thereto; and the reason for this provision applies with as much force to a contest in the Circuit Court, as to a contest ( if there can be one) in the Probate Court.

II. No adjudication in the Probate Court of a contest touching a will, can prevent another under § 29 of the Act touching Wills (W. S. 1368). The two sections are pari materia and must be taken together.

EWING, Judge, delivered the opinion of the Court.

This was a proceeding instituted by the respondents in the Probate Court of Jackson county, at the August term 1870, to revoke the letters testamentary, granted Mary A. Troost as executrix of the last will and testament of William Gillis, deceased, by said Probate Court, and to suspend all her power and authority as executrix under the same, and asking for the appointment of an administrator pendente lite. The plaintiff had previously instituted suit in the Circuit Court of Jackson County, to contest the validity of the said will. By the will, said Mary A. Troost was named as executrix and sole devisee, with the exception of a nominal sum bequeathed to the plaintiffs. The will was admitted to probate in November, 1869. The Probate Court, by its order made at the August term, 1870, suspended the letter testamentary granted to said Mary A. Troost, and all her power and authority under and by virtue of the same, during the time of such contest; and granted letters of administration to Michael Dively, with an order that he take charge of the property belonging to said estate, and administer the same during such contest. From this order the defendant took an appeal to the Circuit Court of Jackson County, where after a hearing of the cause, a similar order and decree to that of the Probate Court were made, suspending the letters and all power and authority by virtue thereof, during the time of the contest of said will. A motion for a new trial having been overruled the cause is brought here by appeal.

Mary A. Troost having died since the transcript was filed in the court, the suit was renewed in the name of Michael Dively, who had been appointed administrator de bonis non with the will annexed of the said Gillis.

It is maintained for the appellant that the order of the Probate Court in suspending the letters testamentary of Mary A. Troost and her authority under them, was unauthorized by law, and it is claimed that the only case in which such a...