Ross v. Pitcairn

• Citation: 179 S.W.2d 35
• Decision Date: 06 March 1944
• Docket Number: No. 38621.,38621.
• Parties: ROSS v. PITCAIRN et al.
• Court: United States State Supreme Court of Missouri

179 S.W.2d 35

ROSS v. PITCAIRN et al.

No. 38621.

Supreme Court of Missouri, Division No. 1.

March 6, 1944.

Rehearing Denied April 3, 1944.

Appeal from Circuit Court, Jackson County; John R. James, Judge.

Action by Wilbur F. Ross, administrator of the estate of Harry Ross, deceased, against Norman B. Pitcairn and Frank C. Nicodemus, Jr., receivers of the Wabash Railway Company, under the Federal Employers' Liability Act, for the death of plaintiff's decedent. From a judgment for defendant on the ground that plaintiff had no legal capacity to sue, the plaintiff appeals.

Judgment affirmed.

George Hornecker and W. J. Allen, both of Kansas City, for appellant.

Carlton S. Hadley and J. H. Miller, both of St. Louis, and John S. Marley and Sebree, Shook & Gisler, all of Kansas City, for respondents.

VAN OSDOL, Commissioner.

Action by plaintiff as administrator of the estate of Harry Ross, deceased, to recover the sum of $60,000 under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the death of decedent. At the trial of the cause defendants interposed an objection to the introduction into evidence of letters of administration granted plaintiff, and evidence was heard in support of the bases of the objection. At the conclusion of the supporting evidence the trial court ruled, "defendants' objections are sustained, and the holding of the court is that plaintiff has no legal capacity to sue"; the court discharged the jury and dismissed the action. Plaintiff has appealed.

Nettie Ross, widow of decedent, had renounced her right to have letters of administration granted to her under statute, Section 7, R.S.1939, Mo.R.S.A. § 7, and the Probate Court of Clay County, February 3, 1936 (October Term 1935), granted letters to Dale R. Ross and Wilbur F. Ross (sons of Nettie Ross and decedent); on April 20, 1936 (February Term 1936), the widow of decedent asked and was given leave to withdraw the renunciation of her right of appointment and the probate court entered an order "withdrawing" the letters theretofore granted to Dale R. and Wilbur F. Ross. The latter order is as follows:

"Now on this 20th day of April, 1936, comes the court and of its own motion orders that the letters heretofore issued to Dale R. Ross and Wilbur F. Ross as coadministrators of the estate of Harry Ross shall be withdrawn and held for naught; and it is likewise ordered that the bond which has been partially furnished together with the application for letters by Dale R. Ross and Wilbur F. Ross together with the newspaper notice together with the appointment of witnesses, shall be withdrawn and held for naught."

On the same day letters of administration were granted to the widow, who, acting as administratrix and with the probate court's approval, compromised, settled and released the claim for the death of her deceased husband for the sum of $8500.

January 3, 1938, the widow was removed, by order of the probate court, from further duties as administratrix, and plaintiff herein was granted letters of administration de bonis non. The instant action was instituted by him January 7, 1938.

Were the orders of the probate court, April 20, 1936, "withdrawing" the letters of administration theretofore granted to Dale R. and Wilbur F. Ross, and granting letters unto the widow, Nettie Ross, void? If so, plaintiff as administrator has the capacity to maintain this action; if not, plaintiff cannot maintain the action, for, as the question is presented, the plaintiff's action is a collateral attack upon the validity of the orders.

Plaintiff (appellant) makes the points (1) that a probate court cannot act ex mero motu: (2) that a probate court is of limited jurisdiction, and all essential jurisdictional requirements, such as notice, must affirmatively appear in order that the action of the court may not be void; (3) that the probate court had no power at a subsequent term (February Term 1936) to withdraw the letters of administration granted at a former term (October Term 1935); and (4) that the widow, having renounced her right to administer the estate of her deceased husband, cannot recall the renunciation.

(1) Probate courts have "jurisdiction over all matters pertaining to probate business, to granting [the] letters testamentary and of administration * * *." Article VI, Section 34, Constitution of Missouri, Mo.R.S.A.; Section 2437, R.S.1939, Mo.R.S.A. § 2437. We have considered that probate courts have exclusive original jurisdiction in such matters. In re Mills' Estate, 349 Mo. 611, 162 S.W.2d 807.

No reason for the court's action in the "withdrawal," revocation, of the letters of administration issued to Dale R. and Wilbur F. Ross is stated in the record of the probate court, save and except a possible one mentioned in the order of April 20, 1936, supra — the bond had been but "partially furnished." It is apparent from the record herein that no sureties had signed the document. See Section 18, R.S. 1939, Mo.R.S.A. § 18, and compare Leahy v. Mercantile Trust Company, 296 Mo. 561, 247 S.W. 396. In a proper case, letters of administration may be revoked (independent of statute) by the exercise of an inherent power (In re Allen's Estate, 307 Mo. 674, 271 S.W. 755) of a probate court in the performance of its duties in supervising the administration of the estates of decedents. Since the Probate Court of Clay County had the power to revoke letters of administration and had jurisdiction of the particular estate, the order cannot be attacked with respect to its validity, verity or binding effect in any collateral action, if the Probate Court of Clay County in making the order afforded due process of law.

In support of plaintiff's contention that the court could not act ex mero motu, the cases of Riggs v. Moise, 344 Mo. 177, 128 S.W.2d 632, and State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25, 129 Am.St.Rep. 536, are cited. It may be considered that there is a distinction between the power of a circuit court when acting as a court of equity in adjudicating issues involved in the administration of a trust wherein it is not contemplated that the court shall direct or supervise the administration of the trust (the jurisdiction of the corpus of the trust not being in the court for administration), and the powers of a court of equity in directing the administration of the trust where the corpus of the trust estate has been brought into the court for the purpose of administration. In those trusts wherein it is not contemplated by the instrument of trust or by statute that the court shall direct the administration of the trust, the court cannot act, except upon issues which are presented by the parties in their pleadings. A trust of the latter class was involved in State ex rel. McManus v. Muench, supra (a case decided prior to the enactment of Section 3537, R.S.1939, Mo. R.S.A. § 3537, and see McManus v. Park, 287 Mo. 109, 229 S.W. 211), for the court said, 217 Mo. at page 140, 117 S.W. at page 30, 129 Am.St.Rep. 536, "But in this connection, it must also be remembered that the grandmother's will, ex vi termini, contemplated that a person, not a court, should manage the trust"; a like trust was involved in the case of Riggs v. Moise, supra, for the facts recited in the opinion show that the corpus of the trust estate had...