State ex rel. Ashton v. Imel

• Decision Date: 31 May 1912
• Docket Number: 15528
• Citation: 147 S.W. 992,243 Mo. 174
• Parties: THE STATE ex rel. LUCINDA B. ASHTON v. JOHN F. IMEL, Judge of Probate, Appellant
• Court: Missouri Supreme Court

147 S.W. 992

243 Mo. 174

THE STATE ex rel. LUCINDA B. ASHTON v. JOHN F. IMEL, Judge of Probate, Appellant

No. 15528

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.

Appeal dismissed.

Charles C. Crow for appellant.

Fulkerson Graham & Smith for respondent.

OPINION

LAMM, J.

Mandamus. This is a companion case with two others between the same parties, bearing the serial docket numbers of 15529 and 15531 respectively -- all submitted on briefs at the same time.

Briefly its history is this:

In 1906 Thomas Ashton died testate in Buchanan county, possessed of an estate (largely of corporate stocks) and leaving a widow children and grandchildren. His widow is relator in this suit and the principal beneficiary in his will. Nominated executrix by the will and qualifying as such after its probate in common form, relator took charge and had so far progressed with the administration as to make an annual settlement and (at least) partial distribution -- the latter under an order in 1907 made on a showing to the probate court that the estate was in condition to permit it. That order authorized her to make distribution according to the will and file her receipts. Pursuant thereto she distributed to herself and filed her own receipt for 150 shares of named corporate stocks, bequeathed to her by her husband's will. In May, 1908, one of the daughters of Thomas and Lucinda, Mrs. Penfield, brought suit to contest the will. From thence on things moved off at a smartish pace. Straightway she applied to the probate court to have an administrator pendente lite appointed during the time of the contest. That application was opposed by the executrix, but on hearing was sustained and one Zeidler was appointed provisional administrator. Thereat the executrix made application for an appeal from his order of appointment. Her appeal was refused by the probate court. Thereat she applied to the circuit court for a writ of mandamus to coerce such appeal. On a hearing there, her writ was denied and she appealed to the Kansas City Court of Appeals. It, in turn, sent the case to this court. That appeal is the pioneer and principal case of the three, bore the docket number 15531 and has been disposed of by an opinion handed down at this delivery, dismissing the appeal. Going back a little to pick up another thread -- Presently, on the heels of Zeidler's appointment, the probate court made a further order in aid of Zeidler's authority, viz., one rescinding and revoking its said order of distribution and requiring the executrix to turn over to Zeidler the corporate stocks theretofore distributed to and receipted for by her. Thereat she timely applied for and was refused an appeal to the circuit court from that order. At that stage she sued out another writ of mandamus in the circuit court to compel the probate court to grant her last appeal. Steps were taken in that case resulting in the award of an absolute writ of mandamus. From that judgment the probate judge, Imel, appeals to this court, and his appeal is the subjectmatter of the instant case.

The large question discussed by counsel is, whether under the fifteenth subdivision of section 289, Revised Statutes 1909, an appeal lies from the order revoking the prior order of distribution and compelling the executrix, who by a former order had been suspended temporarily from her functions pending the will contest, to surrender to the administrator pendente lite the corporate stock so distributed and held by her as distributee?

But, as in...