State ex rel. Flick v. Reddish

• Decision Date: 31 May 1910
• Citation: State ex rel. Flick v. Reddish, 129 S.W. 53, 148 Mo. App. 715 (Mo. App. 1910)
• Parties: STATE ex rel. FLICK v. REDDISH et al.
• Court: Missouri Court of Appeals

129 S.W. 53

148 Mo. App. 715

STATE ex rel. FLICK v. REDDISH et al.

St. Louis Court of Appeals, Missouri.

May 31, 1910.

1. MANDAMUS (§ 53) — CONTROLLING COURTS.

Mandamus does not lie to compel the probate court to set aside its order rendered while acting judicially in passing on an application, but lies only to control a court in the performance of ministerial acts.

2. EXECUTORS AND ADMINISTRATORS (§ 20) — MANDAMUS (§ 60) — DENIAL OF APPLICATION FOR APPOINTMENT OF ADMINISTRATOR — REMEDY — APPEAL.

An order refusing to appoint intestate's son administrator on his application is not appealable, but the remedy is by mandamus to compel the court to issue letters of administration to him.

3. EXECUTORS AND ADMINISTRATORS (§ 17) — APPOINTMENT — JURISDICTION OF COURT.

The general rule that Rev. St. 1899, §§ 7, 9 (Ann. St. 1906, pp. 340, 341), prescribing the order in which persons have the right to administer estates, and providing that where the enumerated persons fail to apply in a given time for letters, or are nonresidents, the probate court may grant letters to some other suitable person, must be observed in granting letters of administration, is not so rigid as to preclude a court from passing over a person entitled to letters in the statutory order of precedence, where the one passed over is unfit to administer the estate, and where to appoint him would subject the assets of the estate to unusual hazard.

4. EXECUTORS AND ADMINISTRATORS (§ 17) — APPOINTMENT — JURISDICTION OF COURT.

Under Rev. St. 1899, §§ 7, 9 (Ann. St. 1906, pp. 340, 341), prescribing the order in which persons have the right to administer the estates of decedents, etc., when considered in connection with section 42 (page 349), authorizing the probate court to revoke letters granted, the probate court acts judicially in appointing an administrator, and the court may decline to appoint a son of intestate where the interests of the estate conflict with the interests of the estate of the mother of the son administered by him.

Appeal from Circuit Court, Scotland County; C. D. Stewart, Judge.

Mandamus by the State, on the relation of Henry P. Flick, against William T. Reddish and another to compel the revocation of an order of the probate court appointing the public administrator to take charge of an estate, and to compel the appointment of relator as administrator de bonis non. From a judgment awarding the writ, defendants appeal. Reversed and remanded.

Smoot & Smoot and O. D. Jones for appellants.

GOODE, J.

Mandamus proceeding from the circuit court of Scotland county against William F. Reddish, judge of the probate court of said county, and J. A. Schenk, public administrator of the county, in charge of the estate of Sylvanus Flick, deceased. The prayer of the petition and of the alternative writ is that a peremptory writ issue to Judge Reddish, commanding him to revoke an order of the probate court entered September 21, 1903, directing the public administrator to take charge of the estate of said Flick, to remove Schenk as administrator of the estate, and to appoint relator, Henry P. Flick, administrator de bonis non. Sylvanus Flick died in 1902, leaving a personal estate of around $12,000, of which eight children and, as we understand, some grandchildren, were heirs. Sarah D. Flick was appointed administratrix, took charge of the estate and entered upon its administration, but died a year later without having made final settlement. Relator, Henry P. Flick, was thereupon appointed administrator of his mother's estate and also guardian and curator of minor children of a deceased sister. He subsequently applied to be appointed administrator de bonis non of his father's estate, but met with the opposition of three of his sisters, who were heirs. Evidence was taken on the application by the probate court and findings made that relator had borrowed money from the estate of his deceased father without an order of the court authorizing the loan; that there was a conflict of interest between the estates of relator's father and mother, and also a conflict of interest between relator Henry P. Flick and the estate of Sylvanus Flick; that, considering the condition and amount of the estate of said Sylvanus Flick, relator was not a proper person to act as administrator thereof, but was wholly incompetent for the purpose, wherefore the probate court denied the application of relator to be appointed administrator de bonis non of his father's estate. The judgment on the application next recited there was no relative of Sylvanus Flick, deceased, or distributee of his estate, competent to administer the estate, and, as it appeared money, property, and papers belonging to it were left in a situation exposed to loss and damage, and the estate was liable to be injured and wasted, J. A. Schenk, public administrator, was ordered to take it in charge and complete the administration. That order was entered September 21, 1903, and during the September term of the probate court. An appeal was taken from it to the circuit court of Scotland county, where the same result was reached. From thence an appeal was taken to this court; but we dismissed the appeal because the original appeal from the probate court to the circuit court would not lie, hence the latter court had acquired no jurisdiction of the proceeding, and this court could acquire none of the appeal from the circuit court. In re Flick's Estate, 136 Mo. App. 164, 117 S. W. 93. We certified the case to the Supreme Court, deeming our decision in conflict with the decision of the Kansas City Court of Appeals in Burge v. Burge, 94 Mo. App. 15, 67 S. W. 703. The Supreme Court decided the case as we had, dismissing the appeal on the ground the original appeal taken from the judgment of the probate court refusing to appoint relator administrator, would not lie, and holding mandamus was the remedy for refusal to appoint a person administrator of an estate who was entitled by statute to be appointed. Thereafter the present proceeding was instituted, and in the petition the facts were stated much as we have stated them, except the charge is made that the orders of the probate court in appointing relator administrator of his mother's estate, refusing to appoint him administrator de bonis non of his father's estate, and appointing the public administrator were corrupt, a charge, we will say in passing, of which there is no proof in the record. The present petition says most of the heirs of Sylvanus Flick, deceased, requested the appointment of relator, but two or three protested against the appointment. Various other statements and charges are made in the petition for the writ of mandamus, which are immaterial, and will not be recited.

The substance of the return to the writ consists of a recital in hæc verba of the order of the probate court refusing to appoint relator and appointing Schenk, averments that, after Schenk had been appointed, he took charge of the estate, and is administering it; that relator is wholly incapable of managing the estate because he is not capable of understanding the nature of the business and does not have mind or memory sufficient to be administrator; that he is in debt to the estate; that Sylvanus Flick had paid large security debts for him at different times which the heirs desire to collect from relator; that relator had been appointed administrator and had taken charge of his mother's estate, and, as such administrator, had undertaken to claim the whole estate of Sylvanus Flick as belonging to her, and still claims the money and property which had been in her hands as administratrix of the estate of Sylvanus Flick belonged to her in person; that relator had borrowed money of the estate of Sylvanus Flick while his mother was administratrix, had never returned it, and was attempting to conceal it; that there are conflicting interests between the estates of his father and mother; that controversies will have to be settled and adjudicated between the two estates; further, the determination of the probate court when relator's application for letters was refused was an adjudication of his right to administer. The reply to the return denied the probate court had jurisdiction of the parties and of the heirs of Sylvanus Flick's estate, so it might determine the competency of relator to take charge as administrator of said estate, at the time it denied his application; avers said court had no authority to pass on...