State ex rel. Ashton v. Imel

• Decision Date: 31 May 1912
• Docket Number: 15531
• Parties: THE STATE ex rel. LUCINDA B. ASHTON, Appellant, v. JOHN F. IMEL, Judge of Probate
• Court: Missouri Supreme Court

147 S.W. 989

243 Mo. 180

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

No. 15531

Supreme Court of Missouri, First Division

May 31, 1912

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

Appeal dismissed.

Fulkerson Graham & Smith for appellant.

Rusk & Stringfellow and Charles C. Crow for respondent.

OPINION

LAMM, J.

Appeal from a judgment, nisi, sustaining a demurrer to an alternative writ of mandamus.

Thomas Ashton died testate in Buchanan county in 1906, seized of a considerable estate. His will, probated in common form nominated his widow, Lucinda B. Ashton, executrix, who was also the principal beneficiary, and is relator in this suit. Presently, she took upon herself the burden of administration. Afterwards Mrs. Penfield (a daughter of Thomas Ashton and relator) sued in the Buchanan Circuit Court to break the will, making relator a party defendant with others. These things being done, afterwards, on May 19, 1908 Mrs. Penfield filed an application in the form of a petition in the probate court of Buchanan county, asking the appointment of an administrator pendente lite. Therein she alleged, inter alia, that she had instituted a suit to contest the will and had made relator "and the other proper parties" defendants in the suit; "that summons had been issued and is in process of service by the sheriff of this county and your petitioner is proceeding with said case and contest in due course of law." Relator appeared to that application and filed an answer assigning reasons against such appointment. One was the pendency of a suit by Mrs. Penfield to set aside a settlement made by her with relator and the other heirs of the estate, acknowledging receiving various items of money and property, aggregating the rise of $ 22,000 in value, and in which suit she prayed that relator be required as executrix to take charge of the notes, securities and properties mentioned in the settlement paper. By taking such position in that suit it is claimed in the answer that her present position is inconsistent with the former and with the appointment of an administrator pendente lite. Another was that the will contest was not brought in good faith for the purpose of contesting the will, but merely to harass relator and deprive her of the control of the Ashton estate until the determination of the will contest. It is claimed in the answer that to appoint an administrator pendente lite under those circumstances would be for the probate court to loan itself to Mrs. Penfield as an instrument of injustice and fraud. Other averments of the answer were that the will was valid, bore date 1878, when testator was fifty-two years old and in full mental and physical vigor and one of proponents was an infant of tender age, and another a non-resident; and that codicils were made long afterwards which had the effect to increase the holdings of Mrs. Penfield in the estate of her father under his original will. Another reason assigned for refusing to appoint an administrator pendente lite was that all the devisees under the will were not made parties to the contest suit.

On hearing, on May 27, 1908, the application was adjudged granted, and John L. Zeidler was appointed administrator pendente lite. Thereat on the same day relator applied for an appeal to the circuit court from that order and judgment, making the statutory affidavit and asking that the amount of the appeal bond be fixed. Refusing to fix the penalty of the bond, the probate court refused an appeal. Thereupon relator sued out of the Buchanan Circuit Court an alternative writ of mandamus to compel the probate court to grant an appeal, the writ reciting all the foregoing facts and citing the probate judge, Imel, to show cause. Appearing to that writ, Judge Imel demurred, because: (1) The writ did not state facts sufficient to constitute a cause of action; (2) upon all the facts stated in the writ, relator is not entitled to relief by mandamus; and (3) upon all the facts stated in the writ, relator is not entitled to appeal from an order made by a probate court appointing an administrator of an estate. Presently the demurrer was sustained, final judgment denying an absolute writ followed, and relator appealed to the Kansas City Court of Appeals. That court was of opinion jurisdiction was lodged with this court and certified the case here.

The foregoing case is one of three, all of them logically related in origin and ultimate purpose, submitted on briefs at the same time in this court, bearing the serial docket numbers, 15528, 15529 and 15531.

Case number 15528 is this: A day or so after the appointment of Zeidler provisional administrator, the probate court at the instance of Mrs. Penfield entered an order revoking an order of distribution made nearly a year before whereby the executrix was authorized to make distribution under the will to herself as legatee of certain shares of corporate stock belonging to the Ashton estate, which distribution she made, and filed her receipt therefor. As part of the order so revoking the executed order of distribution she was commanded to turn over to Zeidler said shares. Thereupon the executrix sought and was refused an appeal from that order. She then sued out of the circuit court an alternative writ of mandamus citing the probate court to show cause why he refused to grant her an appeal. Such steps were taken in that case as resulted in the award of an absolute writ, and from the judgment awarding such writ the probate judge appealed here. So much for case number 15528.

Case number 15529 is this: Pending said application for a mandamus, Mrs. Penfield had her mother cited in the probate court for contempt in refusing to turn over the mentioned corporate stock to the provisional administrator, and leading to her ultimate confinement in jail if she continued recalcitrant. Thereupon the mother applied to the circuit court for a writ of prohibition to prohibit the enforcement of the foregoing order until such time as her right to an appeal be determined and fixed. A preliminary rule issuing, on final hearing a permanent writ was adjudged to go. From that judgment the probate judge appealed. So much for case number 15529.

In the briefs of counsel for Mrs. Ashton, to defeat the appeals in the last two cases, it is suggested our records show that the will contest has long since been finally disposed of by a judgment entered below and affirmed in this court sustaining the will of Thomas Ashton with its several codicils; wherefore (they say) there is no substance or life left in those appeals. Turning to our records on that suggestion, they show that Mrs. Penfield's suit to break her father's will was tried in Buchanan county on the 17th of December, 1908, before a jury in Judge Mosman's division of the circuit court and a verdict came in finding the paper writings (purporting to be the will and codicils of Thomas Ashton, read in evidence, and theretofore probated ex parte in common form) constitute his last will. On the heels of that verdict, it was adjudged those writings (setting the will and codicils forth) be probated in solemn form as his last will and testament and that contestees recover their costs against contestant. From that judgment, Mrs. Penfield appealed to this court with the result that the judgment was affirmed here on February 2, 1910, for failure to perfect her appeal.

In the instant case the question presented by relator's counsel is single and blunt, viz.: Under our statutes, does an appeal lie on behalf of an executrix (who has theretofore qualified and has charge of the estate of her testator) from an order of the proper probate court appointing an administrator pending a will contest -- such executrix being testator's widow, a beneficiary under the will and a party defendant to the contest?

But we are of opinion there is a preliminary question demanding settlement before the question stated by counsel is reached. That preliminary question springs on the disclosures of our own records, to which our attention has been called by relator's counsel as her representatives in the two companion cases. It may be stated in this way: The will contest having been long since finally determined and the validity of the will established once for all, has not relator's right to a writ of mandamus to coerce an appeal, if any such right she had (which putative right she is seeking to enforce in her present appeal), become a mere barren or speculative claim, a mere abstract or empty, technical right? For have not events happened making useless an absolute writ of mandamus if we went on and reversed the judgment and sent the case down with directions or for a new trial as she asks us to do? Or, if she got her writ, of what avail would it be to her?

On those questions we make these observations:

(a) In a suit to test the validity of a will (or to prove a rejected will) an issue is to be made up below whether the writing produced be the will of the testator. This issue must be tried by a jury, or ...