State ex rel. Fansher v. Guinotte et al.

• Citation: 58 S.W.2d 1005
• Decision Date: 03 April 1933
• Docket Number: No. 17710.,17710.
• Parties: STATE EX REL. EVA C. FANSHER ET AL., RELATORS, v. JULES E. GUINOTTE ET AL., RESPONDENTS.
• Court: Court of Appeal of Missouri (US)

58 S.W.2d 1005

STATE EX REL. EVA C. FANSHER ET AL., RELATORS, v. JULES E. GUINOTTE ET AL., RESPONDENTS.

No. 17710.

Kansas City Court of Appeals. Missouri.

April 3, 1933.

Original proceedings in mandamus by State at the relation of Eva C. Fansher and Marjorie Parr against Jules E. Guinotte, Judge of the Probate Court of Jackson County, Missouri, and another to compel the removal of Fred C. Klaber, coadministrator and the recognition of Eva C. Fansher as sole administratrix of the estate of Mary A. Alexander, deceased, wherein an alternative writ issued and to which respondents made return.

PEREMPTORY WRIT ISSUED.

Carlin P. Smith and Jerome Walsh for relators.

Walsh & Parker and Lowell L. Knipmeyer for respondents.

BLAND, J.

This is a proceeding in mandamus. Upon the filing of the petition for the writ we issued an alternative writ, to which respondents have made their return. Relatrices have filed a motion for judgment on the pleadings. This motion admits as true all of the facts well pleaded in the return. [18 R.C.L., pp. 346, 350, 351.]

The facts show that on the 8th day of November, 1932, one Mary A. Alexander, a widow, died testate while a resident of Kansas City, leaving surviving her, a daughter, Mae Fryer, a resident of the state of California, and two granddaughters (daughters of a deceased daughter) to-wit: relatrix, Eva C. Fansher, a resident of Kansas City, and relatrix, Marjorie Parr, a resident of the state of California.

The will of deceased, which was duly probated in the Probate Court of Jackson County, at Kansas City, directed that her estate be distributed according to law, and provided for the appointment as executor one W.S. Webb, who, after the execution of the will, predeceased the testator. There was no provision for a substitute executor. Four persons filed their separate applications in the probate court, each one seeking to be appointed sole administrator of her estate with the will annexed. These four persons consisted of Eva C. Fansher, Marjorie Parr, relatrices herein, Fred W. Klaber and the Missouri Savings Bank and Trust Company. All of these applications were filed prior to the expiration of thirty days after the death of deceased. Mae Fryer filed an objection, in writing, to the appointment of Eva C. Fansher as administratrix. The application of Marjorie Parr and the Missouri Savings Bank and Trust Company was rejected by the court and the respondent, Duvall Strother, acting as special judge of the probate court, appointed Eva C. Fansher and Fred W. Klaber coadministrators. The appointment of Fred W. Klaber was made over the objection of relatrices.

Marjorie Parr, in the application for the writ of mandamus, states that she waives any right that she may have to act as administratrix of the estate and joins in asking that a writ be granted against respondents, requiring them to recognize the priority of her sister, Eva C. Fansher, to serve as sole administratrix.

The return to the writ alleges that Eva C. Fansher is not a suitable and competent person to act as "sole administratrix" of said estate. The return also denies that the special judge appointed Fred W. Klaber as one of the administrators of the estate, over the objection of relatrices, "contrary to law and through arbitrary and illegal use of the forms of law within the period of thirty-five days after the decease of said Mary A. Alexander," and alleges that Fred W. Klaber was appointed coadministrator for the reason that Mae Fryer filed in the probate court her written objections to the appointment of Eva C. Fansher as administratrix and requested said Klaber's appointment and because after hearing all of the evidence the court came to the judicial conclusion that the interest of the estate would be best served by his appointment as such. The return further alleges that no demand has been made by the relatrices upon the respondents for the revocation of the letters of administration granted to Fred W. Klaber; that relatrices had neglected to avail themselves of "other legal and adequate remedies which are available and provided by law;" that the petition for the writ does not contain facts sufficient to authorize the issuance of a writ of mandamus.

In their brief the respondents claim that the appointment of Fred W. Klaber as joint administrator was made in the exercise of a judicial discretion on the part of the special judge. While we do not understand respondents to contend that Eva C. Fansher was not entitled, under the statute, to be appointed an administratrix, they do claim that she had no absolute right to serve as sole administratrix; that the judge in the exercise of a judicial discretion concluded that she was not a competent and suitable person to act, solely. The words of the respondents in this connection are as follows:

"The court felt that in its opinion Eva C. Fansher was not competent and suitable to be the sole administratrix, and that it was necessary to join with her a coadministrator to protect the interest of the estate; so rather than depriving Miss Fansher of any legal rights, the probate court was considerate of her interest in the estate and permitted her to serve as coadministratrix when she might well have been disqualified from serving at all." (Italics ours.)

The statute, section 7, Revised Statutes 1929, provides that letters shall be granted "first, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation shall believe will best manage and preserve the estate; Provided, however, if the court, or judge in vacation, should believe no one of such persons entitled to administer is a competent and suitable person, some other person than those above mentioned may be appointed." Section 8 provides: "If no such person shall apply for letters within thirty days after the death of deceased the court ... may issue citation to him or them ... to appear and qualify for administration, ... and if the person or persons so cited fail to administer within the time appointed, letters may be granted to any person whom the court ... may deem most suitable."

Section 9 provides:

"Letters testamentary and of administration may at any time be granted to any person deemed suitable, if the person or persons entitled to preference file their renunciation thereof, in writing, with the clerk of the court, or if proof be made that no such persons reside in this State."

Section 10 provides that letters of administration shall not be granted to a nonresident.

Section 11 provides: That if the person or persons appointed in the will to act as executors "refuse to act or be disqualified" letters of administration shall be granted to the person to whom administration would have been granted if there had been no will.

Since the executor named in the will pre-deceased deceased and since Eva C. Fansher was the only person entitled to participate in the distribution of the estate, who was a resident of this State, she, under the provisions of sections 7 and 11 of the statute, had the absolute right to be appointed sole administratrix of the estate (State ex rel. v. Romjue, 136 Mo. App. 650, 657), unless the judge should believe that she was not a competent and suitable person for that purpose.

The rights of a particular person to administer upon an estate of a decedent are matters which are entirely regulated by statute and the court has no discretion whatever in reference to the matter, except that which is expressly given thereby. [State ex rel. v. Fowler, 108 Mo. 465; State ex rel. v. Guinotte, 113 Mo. App. 399; State ex rel. v. Collier, 62 Mo. App. 38; Hollingsworth v. Jeffries, 121 Mo. App. 660, 667; In re Allen's Estate, 271 S.W. 755; Linder v. Burns, 243 S.W. 361; In re Wilson's Estate, 16 S.W. (2d) 737.] The only discretion given by the statute that the respondent, special judge, had in reference to the matter was in passing upon the question as to whether Eva C. Fansher was a competent and suitable...