State ex rel. Burns v. Woolfolk

• Decision Date: 13 May 1924
• Docket Number: 24795
• Citation: 262 S.W. 346,303 Mo. 589
• Parties: THE STATE ex rel. JOHN L. BURNS, Administrator of Estate of JACOB LINDER, v. EDGAR B. WOOLFOLK, Judge of Circuit Court of Lincoln County, et al
• Court: Missouri Supreme Court

262 S.W. 346

303 Mo. 589

THE STATE ex rel. JOHN L. BURNS, Administrator of Estate of JACOB LINDER, v. EDGAR B. WOOLFOLK, Judge of Circuit Court of Lincoln County, et al

No. 24795

Supreme Court of Missouri

May 13, 1924

Preliminary rule made absolute in part and discharged in part.

Creech & Penn and John L. Burns for relator.

(1) The probate court by the Constitution has jurisdiction "over all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators curators and guardians," etc. Mo. Constitution, art. 6 sec. 34. (2) In conformity and fulfillment of said constitutional authority the General Assembly has provided and established a uniform system of probate courts conferring upon them jurisdiction over the subject-matter of said constitutional provisions. Art. 4, Chap. 21, R. S. 1919. (3) The provision of the Constitution and the act providing for and establishing probate courts are reiterated and elaborated in detail under the title of "Administration" in Chap. 1, R. S. 1919, thus: (a) The grant of letters testamentary and of administration is lodged in the probate court. Sec. 1, R. S. 1919. (b) The power to take and approve bonds required of administrators is vested in the probate court. Secs. 17 to 31, R. S. 1919. (c) Letters testamentary and of administration shall be recorded by the clerk of the probate court in a well-bound book kept for that purpose. Sec. 33, R. S. 1919. (d) The jurisdiction is in the probate court to compel an administrator whose letters have been revoked to make final settlement. Sec. 48, R. S. 1919. (e) The probate court has exclusive power over settlements, semi-annual and final, with power to compel the making of same, and to approve or reject them. Art. 1, Chap. 8, R. S. 1919. (4) The circuit court, although a court of general jurisdiction, is not authorized to assume original jurisdiction in matters pertaining to probate business, the Constitution and statutes having placed that jurisdiction exclusively in probate court. Strode v. Gilpin, 187 Mo. 301; Scott v. Rayston, 223 Mo. 568; State ex rel. v. Bird, 253 Mo. 569; Lemp Brewing Co. v. Steckman, 180 Mo.App. 320; Priest v. Spier, 96 Mo. 111; In re Ford, 157 Mo.App. 141; Stephens v. Cassidy, 104 Mo.App. 210.

Derwood E. Williams, George E. Eggers and Grover C. Huston for respondents.

(1) The circuit court has appellate jurisdiction over the action of the probate court in refusing to remove an administrator, revoke his letters of administration and refusing to appoint a new administrator. Constitution, art. 6, sec. 23; R. S. 1919, secs. 282, 2436; Donaldson v. Lewis, 7 Mo.App. 406; Owens v. Link, 48 Mo.App. 535; State ex rel. Betts v. McGowan, 89 Mo. 156; State ex rel. v. Guinott, 156 Mo. 526; Ferguson v. Carson, 13 Mo.App. 31. (2) On appeal from the probate court to the circuit court the issues involved are tried by the circuit court anew. R. S. 1919, sec. 289; 4 C. J. p. 728, par. 2650; Burger v. Burger, 94 Mo.App. 15; Ferry v. McGowan, 68 Mo.App. 612; Boothe v. Reeds, 38 Mo.App. 456. (3) On the appeal in this case to the circuit court it was the duty of the court to re-try the cause as if it had been originally brought in that court, and in such case the circuit court stands in the place of the probate court and exercises a like jurisdiction, and the judgment rendered in this cause by the circuit court was authorized by law and is within its jurisdiction. Burger v. Burger, 94 Mo.App. 19; Ferry v. McGowan, 68 Mo.App. 616; R. S. 1919, sec. 289.

OPINION

White, J.

A petition was filed in this court by relator, May 3, 1923, praying for a writ of prohibition to restrain the Circuit Court of Lincoln County from removing the relator, Burns, as administrator with the will annexed of the estate of Jacob Linder, deceased, from appointing Albert Linder as such administrator and other proceedings in pursuance of such appointment.

The respondents, Edgar B. Woolfolk, judge of the Circuit Court of Lincoln County, and Albert Linder, on the day of June, 1923, of this court, filed their return, setting forth certain proceedings in the Circuit Court of Lincoln County on appeal from the probate court of that county, and the opinion and mandate of the St. Louis Court of Appeals rendered on appeal from said circuit court. The relator, September 26, 1923, filed in this court his demurrer to the return of respondents, so the case stands here upon the facts stated in said return. This demurrer is treated as a motion for judgment on the pleadings, and we shall so consider it.

The opinion of the St. Louis Court of Appeals sets out the facts, showing that Jacob Linder died in East St. Louis, December 24, 1915. He left a will dividing his entire estate amongst his four children. No executor was named. The widow of the testator died about ten months after his death. Of his four children the respondent, Albert Linder, alone lived in Missouri, at St. Louis. The others lived in other states. Albert Linder, without avail and for reasons not necessary to consider, attempted to procure letters of administration in the Probate Court of the City of St. Louis. In February, 1917, Frank A. Linder, a son, residing in Illinois, produced a will in the Probate Court of Lincoln County, Missouri, and on sufficient proof that Jacob Linder died a resident of that county, caused the will to be probated, and the respondent, John L. Burns, appointed administrator with the will annexed. The application for the appointment of Burns showed on its face that Albert Linder lived in the city of St. Louis, Missouri, and that all the other heirs were non-residents. No citation of intention to apply for letters of administration was issued to Albert Linder, and he had no knowledge that such action was contemplated.

In September, 1917, Albert Linder learned of the situation; then he and L. J. Linder filed a petition in the Probate Court of Lincoln County, asking that court to set aside the appointment of Burns and to appoint Albert Linder administrator with will annexed. The probate court overruled his motion. He appealed to the circuit court, which also rendered judgment against him. He then appealed to the St. Louis Court of Appeals and that court reversed the judgment of the circuit court. The opinion concluded with this language:

"The judgment of the circuit court is reversed and this cause remanded with directions to the circuit court to set aside its order and judgment overruling and dismissing plaintiff's motion to remove John L. Burns as administrator of the estate of Jacob Linder, deceased, and to revoke the letters of administration with the will annexed issued to said John L. Burns; to sustain the plaintiff's motion to remove John L. Burns as administrator of the estate of Jacob Linder, deceased, and appoint a new administrator in accordance with the law, and to require said John L. Burns, administrator of the estate of Jacob Linder, deceased, to account for all the property and effects by him received as such administrator, and to certify said judgment to the Probate Court of Lincoln County."

In pursuance of the opinion mandate was issued by said court.

After the filing in the circuit court of the opinion and mandate of the Court of Appeals, Albert Linder and L. J. Linder filed their motion in the probate court for judgment in that court in pursuance of the mandate of the Court of Appeals. Thereupon the circuit court at the December term, 1922, entered the following judgment:

"Albert Linder and L. J. Linder, Plaintiffs, v. John L. Burns, Administrator of the Estate of Jacob Linder Deceased, Defendant.

"Now at this day come the plaintiffs in the above entitled cause and also comes the defendant, and the plaintiffs' motion for judgment herein and the application of the plaintiff Albert Linder, for appointment as administrator with the will annexed of the estate of Jacob Linder, deceased, coming on to be heard and being presented to the court, the plaintiffs present the mandate of the St. Louis Court of Appeals heretofore filed in this court on the 2nd day of September, 1922, and the court being satisfied from the evidence adduced that the said Albert Linder is in all respects qualified to act as administrator of said estate and the said Albert Linder is the only distributee of said estate who is qualified to act as such administrator, and that said Albert Linder has fully complied with the law, entitling him to administer upon said estate, the court doth, therefore, pursuant to the directions of said mandate of the St. Louis Court of Appeals, order and adjudge that its order and judgment heretofore rendered in this cause overruling and dismissing plaintiffs' motion to remove John L. Burns, as administrator of the estate of Jacob Linder, deceased, be and hereby is set aside, and that the letters of administration with the will annexed, issued to said John L. Burns, be and are hereby revoked; that the plaintiffs' motion...