State ex rel. Emmons v. Hollenbeck
| Decision Date | 02 July 1965 |
| Docket Number | No. 8381,8381 |
| Citation | 394 S.W.2d 82 |
| Parties | STATE of Missouri ex rel. Rollo EMMONS, Relator-Appellant, v. Paul S. HOLLENBECK, Judge of the Probate Court of Maries County Missouri, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Northern & Crow, Rolla, for relator-appellant.
Harold S. Hutchison, Vienna, Claude T. Wood, Richland, for defendant-respondent.
In this proceeding instituted in the Circuit Court of Maries County on January 27, 1964, Rollo Emmons, the relator, sought a writ of mandamus commanding the Honorable Paul S. Hollenbeck, Probate Judge of Maries County, the respondent, (a) to vacate the order theretofore entered by respondent on January 20, 1964, which had denied relator's application for appointment of an administrator of the estate of Charles G. Duncan, deceased, a resident of Maries County who had died intestate on July 10, 1962, and (b) to appoint a suitable person as administrator of the estate of said decedent, against whom relator might institute a civil suit to recover damages for personal injuries alleged to have been sustained by him as a result of the negligent operation of a motor vehicle by Duncan in Phelps County on May 6, 1962. Section 537.020. 1 (Except as otherwise specifically stated, all statutory references are to RSMo 1959, V.A.M.S.) Upon hearing, the circuit court denied the requested writ of mandamus and dismissed relator's petition. The case comes to us upon relator's appeal.
By petition originally filed on May 9, 1962, three days after the aforesaid accident, and thereafter 'refiled' on May 28, 1962, Ermil Duncan, a son, sought appointment of a guardian for his father, Charles G. Duncan. Section 475.060. In that petition, it was stated, inter alia, that Charles G. Duncan was a widower 75 years of age then living with his son Ermil in Maries County, that he was 'incapable by reason of senility or other incapacity of managing his property and caring for himself,' that he was 'at present ill and confined to a hospital,' and that he owned realty valued at $9,000 and personalty valued at $7,000. After a hearing on June 4, 1962, at which Charles G. Duncan was present in person and represented by counsel [Section 475.075], the probate court found that he was an incompetent, appointed his son Ermil as guardian [Section 475.090], and upon the filing and approval of a bond [Section 475.100] issued letters of guardianship to Ermil on the same date. Thereafter, notice of Ermil's appointment as guardian was duly published once a week for four consecutive weeks [Section 475.140], the first publication of such notice having been on June 7, 1962.
While under guardianship, Charles G. Duncan died intestate on July 10, 1962. No letters of administration were issued [Section 473.110], and there was no application for letters prior to the filing of instant relator's application in the probate court on January 20, 1964. However, the guardianship estate was held open after the ward's death; and on March 18, 1963, nine months and eleven days after the first publication of notice of the appointment of Ermil as guardian, he filed a 'petition' in the probate court in which he averred, inter alia, that 'to the best of his knowledge and belief the incompetent died leaving no debts other than those payable under sub-section 1 of Section 475.320' and that he (Ermil) believed that 'it would be to the best interest to (sic) the estate and to the heirsat-law of Charles G. Duncan, deceased, that no letters of administration be granted upon his estate, and that the guardian, Ermil Duncan, be authorized, directed and empowered in accordance with Section 475.320 . . . to administer as herein provided, and after final settlement of the guardian is approved and all obligations of the estate paid, distribution be made to the heirs in the same manner with the same effect as in the case of an administrator.' On the date of the filing of said petition, i. e., on March 18, 1963, the probate court entered an order which included findings to the same effect as the above-quoted averments in the guardian's petition and then 'adjudged and decreed that no letters of administration be granted under (sic) the estate of Charles G. Duncan, incompetent, now deceased, and that the guardian of the estate of Charles G. Duncan, incompetent, is hereby authorized and directed to administer on said estate and to make distribution to the heirs at law of Charles G. Duncan, deceased, in accordance with Section 475.320.'
On November 12, 1963, the probate court entered an order captioned 'Final Settlement Approved, Finding and Order of Distribution (Intestate Estate),' undertaking to adapt for use in the guardianship estate under discussion a printed form so captioned for use in decedents' estates, which appears at 26 V.A.M.S. pp. 283-284 following Section 473.583. References to the 'administrator' in the printed form were changed to 'gdn.-adm.' or to 'gdn.-administrator,' and the reference to 'the letters of administration' in the second printed line of the fifth paragraph of the form [26 V.A.M.S. p. 284] was changed to 'the letters of guardianship.' In the language of the printed form, this order recited that the court 'takes up for consideration the final settlement and the verified petition for order of distribution, filed hereon (sic) on the 31 day of October, 1963, by Ermil Duncan, gdn.-administrat___ of the estate of Charles G. Duncan, deceased'; stated that the final settlement, showing that 'the gdn.-adm. has on hand $4342.14 in cash' and no other personal property, had been audited and approved; contained findings in the language of the printed form, including the adapted finding in the fifth paragraph 'that there was due publication according to law, of notice of the letters of guardianship granted herein to the aforesaid gdn.-adm. and that the first publication of such notice was on June 7, 1962'; and ordered that the personal property, to wit, the aforesaid sum of $4,342.14, be distributed to the six children, share and share alike, and that title to certain described real estate be vested in them. 'Notice of Filing of Final Settlement and Petition for Distribution,' in the form used in decedents' estates, which appears at page 31 of the 1964 cumulative pocket part to 26 V.A.M.S., had been published once a week for four consecutive weeks prior to the filing of the final settlement. Section 473.587. This notice was captioned 'In the estate of Chas. G. Duncan, deceased,' was addressed 'To all persons interested in the estate of Chas. G. Duncan, deceased,' and bore the printed signatures of 'Ermil Duncan Administrator' and his attorney. The transcript does not include the final settlement and the petition for order of distribution, and the record reflects no activity in the guardianship estate either (a) during the interval between the ward's death on July 10, 1962, and the filing of the guardian's 'petition' on March 18, 1963, seeking authorization 'to administer on said estate' under Section 475.320, or (b) during the interval between March 18, 1963, and the filing of the final settlement on October 31, 1963.
On January 20, 1964, instant relator filed in the Probate Court of Maries County 'Application of Interested Person for Appointment of Administrator' in which he averred, inter alia, that he had a claim for personal injuries 'arising out of an act of negligence of the said Charles G. Duncan in the operation of his motor vehicle on the 6th day of May, 1962,' near Rolla in Phelps County, and prayed that the application 'be set for hearing within fifteen days and notice of hearing served upon all persons entitled to administer the estate of the said Charles G. Duncan' [see Section 473.020] and that, after hearing, a 'legal representative of the deceased' be appointed. See Section 537.020. Pursuant to notice, relator's said application was heard in the probate court on January 20, 1964, and on the same date was denied. Institution of this mandamus proceeding in the circuit court followed shortly on January 27, 1964.
Relator's position is that his cause of action for personal injuries alleged to have resulted from the negligence of Charles G. Duncan on May 6, 1962, could not have been prosecuted against the guardian, Ermil Duncan, after the ward's death on July 10, 1962; that the nine-month nonclaim statute applicable to 'claims against the estate of an incompetent based on liabilities arising prior to the guardianship' [Section 475.210] did not run against relator's cause of action either (a) by reason of the guardianship estate being held open for more than nine months after the first publication on June 7, 1962, of notice of the guardian's appointment or (b) by reason of the guardian's 'petition' of March 18, 1963, and subsequent proceedings under Section 475.320; and that relator is entitled, as a matter of right, to the appointment of an administrator of the estate of Charles G. Duncan, deceased, against whom relator may prosecute his cause of action for personal injuries. Section 537.020.
On the other hand, respondent asserts, in his first point, that relator's cause of action is barred by the nine-month nonclaim statute [Section 475.210] for relator's 'failure to exhibit his claim to the guardian within nine months after the date of the first publication of notice of appointment of guardian' (i. e., within nine months after June 7, 1962), and then adds, in his second point, that relator 'was not entitled to the appointment of an administrator under Section 537.020 because his exclusive remedy was against the guardianship estate.' Although not within the apparent scope of either of the two stated points in his brief, respondent also argues, under the second point, that from and after March 18, 1963, when the probate court entered an order directing that no letters of administration be granted...
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