State ex rel. Abercrombie v. Holtcamp
| Decision Date | 31 March 1916 |
| Citation | 185 S.W. 201,267 Mo. 412 |
| Parties | THE STATE ex rel. FRANK N. ABERCROMBIE v. CHARLES W. HOLTCAMP, Judge of Probate Court, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Reversed (with directions).
Jones Hocker, Hawes & Angert and George B. Webster for appellant.
(1) The circuit court was without jurisdiction to entertain mandamus because the action of the probate court was the exercise by it of a judicial function. 4 Words and Phrases, p. 3850; State ex rel. v. County Court, 227 Mo. 460; State ex rel. v. Guinotte, 113 Mo.App. 319; 1 Bouvier, 884. (2) An executor appointed under a will need not accept such appointment, but may renounce or resign his appointment at any time prior to intermeddling with the affairs of the estate or doing any act which amounts to an acceptance of the trust. Woerner's Administration, sec 234. (a) This renunciation may result from acts in pais. Thornton v. Winston, 4 Leigh. 152; Solomon v. Wixon, 27 Conn. 520; Ayers v. Weed, 16 Conn. 291; Wood v. Sparks, 1 Dev. & Bat. 395. (3) Abercrombie was competent to act as executor under the will both in Ohio as regards the primary administration and in Missouri as regards the ancillary administration. Woerner's Administration, sec. 230. (4) Abercrombie had the option to accept the office of executor or to resign and renounce the same. He had not the option to accept in part and renounce in part. Having resigned or renounced his office as executor under the will, that resignation being filed in and accepted by the court administering primary administration, operated as a resignation of his office in toto, and not in part only. Ross v. Barclay, 18 Pa. St. 179. (5) A renunciation once made and accepted cannot be recalled. State ex rel. v. Romyne, 136 Mo.App. 658; Thornton v. Winston, 4 Leigh. 164; Wood v. Sparks, 1 Dev. & Bat. 296; Stockdale v. Conaway, 14 Md. 99; Lutz v. Mahan, 80 Md. 237; Estate of Kirtlan, 16 Cal. 161; Triplett v. Wells, Littell's Cases (Ky.), 49; Carpenter v. Jones, 44 Md. 625.
Jeptha D. Howe for respondent; Marshall & Henderson of counsel.
(1) Mandamus is the proper remedy. There is no merit in the appellant's contention that the judge of the probate court exercised judicial discretion in appointing Steininger administrator with the will annexed. The will appointed relator as executor and the probate court had no power to refuse to permit him to qualify, it being conceded that he was a resident of the State of Missouri. Flick v. Schenk, 212 Mo. 275; State ex rel. v. Guinotte, 113 Mo.App. 339; State ex rel. v. Fowler, 108 Mo. 465; State ex rel. v. Reynolds, 121 Mo.App. 699. (2) The resignation of relator as executor applied only to the administration in Ohio and did not apply, and was not intended to apply, to the right of relator to qualify as executor in Missouri. (3) Even if the resignation of relator, directed to the probate court in Ohio, should be held to apply also to Missouri, nevertheless relator had the right to retract his renunciation as to the administration in Missouri at any time before an administrator, with the will annexed, was appointed in Missouri, and this relator did, and the probate court in St. Louis had no power or jurisdiction to refuse to allow him to qualify as such executor in Missouri and no power or jurisdiction to appoint Steininger administrator with the will annexed. 1 Woerner's Am. Law of Adm., pp. 229, 230, 513; Casey v. Gardiner, 4 Bradf. 13; Robertson v. McGeoch, 11 Paige's Chan. 640; Taylor v. Tibbatts, 13 B. Mon. (Ky.) 177; Davis v. Inscoe, 84 N.C. 396; Wood v. Sparks, 1 Dev. & Bat. 389; Staunton v. Parker, 55 Hun, 60; McDonnell v. Prendergast, 3 Haag. Ecc. 216; In re Benton, 2 Hayw. & H. (U.S.) 315; 30 Fed. Cas. 18234; Thompson v. Dixon, 3 Haag. Ecc. 212; Dempsey's Estate, Tuck. (N. Y.) 51; In re True, 120 Cal. 352; Judson v. Gibbons, 5 Wend. 224; Codding v. Newman, 3 Thomp. & C. 364; Percy v. DeWolf, 2 R. I. 103.
This is an appeal from a judgment of the circuit court of the city of St. Louis granting a peremptory writ of mandamus, commanding the probate judge of that city to permit relator to qualify as executor under the will of Martin Stanford Robison, deceased, and to revoke the appointment theretofore made of Edward A. Steininger as administrator with will annexed.
The material facts are as follows:
On March 24, 1911, Martin Stanford Robison, a citizen of the city of Cleveland, Ohio, died, leaving a will, in which Mrs. Sarah C. H. Robison, Mrs. Helene H. R. Britton and relator were named executors. Mrs. Robison and Mrs. Britton were at the time of the death of testator residents of the State of Ohio, while relator was then, and yet is, a resident of the State of Missouri. Immediately upon the death of the testator relator proceeded to the city of Cleveland to attend the funeral, and while there, to-wit, on March 28, 1911, the will was admitted to probate in the county of testator's residence, and relator, Mrs. Robison and Mrs. Britton duly qualified as executors. On April 6, 1911, relator filed his resignation as executor of the will, and on April 7th the probate court accepted same. Three days after the death of testator, to-wit, on March 27th, letters of administration were granted to Edward A. Steininger by the probate court of the city of St. Louis, upon the written request of the legatees named in the will, these letters going only to the ancillary administration.
It appears that the greater portion of testator's estate consisted of property located in Missouri, he being the dominant owner of the stock of a Missouri corporation owning the baseball club known as "The Cardinals." On June 19, 1911, the public administrator of the city of St. Louis filed in the probate court of that city an authenticated copy of the will, and at the same time filed his notice that he had taken charge of the estate. On the same day Edward S. Steininger, who had theretofore been granted letters of administration, also filed in the probate court of the city of St. Louis another copy of the will, whereupon a dedimus was issued to take the testimony of the subscribing witnesses who lived at Cleveland, Ohio. On the 29th of June relator applied to the probate court for leave to qualify as executor under the will. On July 8th Steininger filed a certified copy of the resignation of relator, which had been filed with the probate court of Ohio, said copy having been procured on April 12th. On June 20th the public administrator filed a motion in the probate court to quash the dedimus theretofore issued to take the testimony of the subscribing witnesses to the will; and on June 30th filed a motion to require Steininger to settle with him as administrator with will annexed. The hearing on these various applications and motions began in the probate court on July 10th, and, upon completion thereof, the probate court found, from the facts adduced in evidence, that relator had no absolute right to qualify as an executor, because he had theretofore renounced and waived such right. After so disposing of relator's claims, it appointed Steininger administrator with the will annexed.
The evidence discloses that at about the same time that relator tendered his resignation to the probate court of Ohio, he also resigned as a director in the Missouri corporation in which the testator's assets were chiefly invested. It also appears that three days after the death of testator, and before relator resigned in Ohio, he had arranged for his bond as ancillary executor, but after he resigned in Ohio he made no effort whatever to qualify in Missouri until the time and after the occurrences heretofore recited.
At the hearing before the probate court relator testified that some differences had arisen between him and one of the principal legatees, and that he did not desire to be in a position where it would embarrass this party, and that he therefore resigned as executor under the will and as a director of the Missouri corporation, and had entirely severed his connection with the estate. On April 10th, following his resignation on April 6th, he wrote a letter to Mrs. Robison clearly indicating his intention to have nothing further to do with the management or administration of any part of the estate.
I. At the inception we are confronted with appellant's insistence that mandamus is not a proper and available remedy, for that the action of the probate court, which the writ seeks to control, involved the exercise of both a judicial discretion and function. On the other hand, it is contended that, since the will nominated and appointed relator as executor, the duty of the court was purely ministerial, and after the probate of the will it had no authority to do other than grant letters testamentary to relator.
A determination of this question makes necessary an examination of the statutory provisions relating to wills.
Section 19, Revised Statutes 1909, provides: "After probate of any will, letters testamentary shall be granted to the persons therein appointed executors . . . If all such persons refuse to act, or be disqualified, letters of administration shall be granted to the person to whom administration would have been granted if there had been no will."
Section 14 provides that
Section...
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