State ex rel. Barlow v. Holtcamp

• Decision Date: 02 March 1929
• Docket Number: No. 28634.,No. 28635.,28634.,28635.
• Citation: 14 S.W.2d 646
• Parties: THE STATE EX REL. ESTELLE PEPER BUSHMAN BARLOW v. CHARLES W. HOLTCAMP, Judge of Probate Court.
• Court: Missouri Supreme Court

14 S.W.2d 646

THE STATE EX REL. ESTELLE PEPER BUSHMAN BARLOW v. CHARLES W. HOLTCAMP, Judge of Probate Court.

No. 28634.

No. 28635.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Certiorari and Prohibition.

RECORD QUASHED ON WRIT OF CERTIORARI.

PRELIMINARY RULE IN PROHIBITION MADE ABSOLUTE.

Chas. J. Macauley, Harry H. Haeussler and Foristel, Mudd, Blair & Habenicht for relatrix.

(1) Prohibition is the proper remedy to prevent further action in the premises in excess of the jurisdiction of the probate court. State ex rel. Smith v. Williams, 310 Mo. 267. (2) There was no power in the probate court to revoke the letters testamentary of relatrix upon and by reason of the filing of the will contest. Secs. 13, 40, R.S. 1919. (3) The probate court did not in fact attempt to revoke the letters of relatrix upon and by reason of the filing of the will contest. (4) There was no motion to revoke letters testamentary filed or on file when the court attempted to appoint the Public Administrator in 1927. (5) The filing of the will contest did not work a revocation of the letters testamentary previously granted to relatrix under the will. It merely suspended their force "during the time of such contest." Secs. 13, 40, R.S. 1919; State ex rel. Ashton v. Imel, 243 Mo. 174; Leahy v. Campbell, 274 Mo. 359; Leahy v. Mercantile Trust Co., 296 Mo. 596; State ex rel. v. Williams, 310 Mo. 267; State ex rel. v. Holtcamp, 277 S.W. 907; Anchor v. Sullenger, 137 Mo. App. 373; Johnson v. Brewn, 277 Mo. 392. (6) There was no issue before the probate court upon which its action and further threatened action could be based. (7) The judgment upholding the will, filed in the probate court, removed the suspension of the letters testamentary of relatrix and left the matter as if no will contest had been filed. No issue for revocation was made. The court exceeded its powers and threatens further to act in excess of them. As to this last the preliminary rule should be made absolute. Authorities under Point 5.

W.W. Henderson for respondent.

(1) A will takes its legal validity from its probate; that is, the certification by the court or tribunal clothed with authority for such purpose that it has been executed, published and attested as required by law, and that the testator was of sound and disposing mind. Without such proof it is not a will in the legal sense. Woerner on Administration (3 Ed.) sec. 464, p. 701. (2) "If the validity of the will be contested, ..., letters of administration shall be granted during the time of such contest ... to some other person, who shall take charge of the property, ... and account for and pay and deliver all the money and property of the estate to the executor or regular administrator when qualified to act." Sec. 13, R.S. 1919. (3) Section 13, Revised Statutes 1919, provides for the granting of new letters and necessarily contemplates the revocation of the previous letters during the life of the letters to the administrator pendente lite. Leahy v. Mercantile Trust Co., 296 Mo. 598. (4) The administrator pendente lite holds and preserves the estate. At the end of the litigation he must turn over to the regular executor or a regular administrator. It may be the one named in the will or one later named by the court. Leahy v. Mercantile Trust Co., 296 Mo. 587. (5) The filing of a contest operates ipso facto to vacate an order of the probate court admitting a will to probate. Johnson v. Brewn, 277 Mo. 392. (6) The statute provides that during a contest the letters of the executor may be revoked and an administrator appointed pendente lite; this, upon the theory that the contest suspends the judgment of the probate court. State ex rel. Damon v. McQuillan, 246 Mo. 688; Leahy v. Mercantile Trust Co., 296 Mo. 598; Sec. 13, R.S. 1919. (7) After a will contest, the person named as executrix in the will must take steps in the probate court to reclothe herself with the right to possession of the estate and to reinstate herself in her former position as executrix. State ex rel. v. Imel, 243 Mo. 187. (8) When an executor of an estate, who stands in the position of a trustee, assumes a position where his interest conflicts with that of an estate, it is the positive duty of the court to remove him on the ground that he has become incapable or unsuitable to execute the trust reposed in him. Davis v. Roberts, 226 S.W. 664; Ex parte Zorn, 241 Mo. 267; In re Estate of Padgett, 114 Mo. App. 307. (9) Objection as to defective notice, or no notice, is waived by voluntary appearance. King v. King, 73 Mo. App. 78; Lewellyn v. Lewellyn, 87 Mo. App. 16. (10) "Letters testamentary and of administration shall in no case be granted to a non-resident of this State; and when an executor or administrator shall become non-resident, the court shall, upon proof thereof, after due notice to said executor or administrator, revoke his letters." Sec. 10, R.S. 1919. (11) If an executor has absented himself from the State for the space of four months, or is in anywise incapable or unsuitable to execute the trust reposed in him, the court shall revoke the letters granted. Sec. 42, R.S. 1919.

HIGBEE, C.

On October 31, 1927, the relatrix presented her petition to this court for a writ of certiorari to quash the record of the Probate Court of the City of St. Louis, respondent being judge of said court, wherein it purported to appoint Otto A. Hampe administrator d.b.n.c.t.a. of the estate of Caroline J. Peper, deceased. At the same time relatrix also presented her petition for a writ of prohibition to prevent the respondent, as such probate judge, from appointing said Otto Hampe administrator d.b.n.c.t.a. of the estate of said Caroline J. Peper and ordering the assets of said estate to be turned over to said Hampe. The writs were issued, and the records of the probate court to be reviewed are before us.

These are companion cases and were argued and submitted together. The record is the same in each case and the cases may be disposed of in one opinion. The facts are thus summarized in the brief of counsel for the relatrix in the certiorari case:

"Briefly stated, the record of the probate court shows that in August, 1920, Caroline J. Peper died testate and named relatrix as executrix. In due time the will was probated in common form and relatrix was thereupon, under her maiden name, appointed executrix thereof and letters testamentary issued to her. She duly qualified and took up the business of executing her mother's will.

"Subsequently, Christian Peper Bushman, a son of Caroline J. Peper, instituted proceedings to contest the will of Caroline J. Peper. This contest was brought to the attention of the probate court, and thereupon, under Section 13, Revised Statutes 1919, it appointed Leslie J. Nichols as administrator pending the contest. Thereafter Nichols retired from that position and L. Frank Ottofy was appointed administrator pending the contest, and letters issued to him. Subsequently Ottofy retired and Karl P. Spencer was appointed to succeed Ottofy pending the remainder of the contest. At no time did the probate court attempt to revoke the letters issued to relatrix as executrix.

"The will contest was tried in the Circuit Court of the City of St. Louis, and that trial resulted in a judgment that the writing was not the will of Caroline J. Peper. Relatrix and other proponents appealed, and on March 4, 1927, this court reversed the judgment of the circuit court and remanded the cause `with the direction that a judgment be entered establishing the paper writing of July 14, 1919, and the codicil attached thereto of January 4, 1920, as the last will and testament of Caroline J. Peper.' [Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039-1054.]

"This mandate was filed in the circuit court on April 16, 1927, and thereafter presented to that court, and it thereupon entered its judgment pursuant to the mandate and caused it to be certified to the probate court. Soon thereafter this was duly presented to the probate court by counsel for relatrix.

"Thereafter Anna M. Bushman, guardian, etc., filed a motion entitled: `Opposition to appointment of Estelle Peper Bushman Barlow as executrix of the will of Caroline J. Peper, deceased.' (Your relatrix had become the wife of Barlow after the issuance of letters testamentary to her, as is admitted).

"In the motion referred to, Anna M. Bushman set up certain contentions to the effect that your relatrix should not be appointed executrix of her mother's will. The foundation of her whole claim was the assumption that relatrix, though the will contest had finally ended and the judgment probating the will in solemn form had been rendered in that proceeding and presented to the probate court, was in some way displaced from her position as executrix and could not take up her duties as such unless she were again formally appointed as executrix and new letters testamentary issued to her. This, despite the fact, also, that there had never been any order, proceeding or attempt to remove relatrix as executrix or to cancel her letters issued upon the probating of the will in common form.

"On this motion the probate court has appointed another person than relatrix to take charge of said estate and issued to such person letters with the will annexed and is threatening to require the assets of said estate to be delivered to such person. It is the position of your relatrix that she is now the executrix of said estate; that her letters are in force, and there is no vacancy to be filled and that the probate court has no jurisdiction to make the appointment. This proceeding is aimed at the extra-jurisdictional step already taken. A companion prohibition proceeding is intended to prevent further threatened steps."

The pleadings admit that relatrix is the daughter of Caroline J. Peper, who died August 1, 1920, a resident of the city of St. Louis, Missouri, leaving a will devising real and personal property located in...