State ex rel. Gregory v. Henderson

• Decision Date: 12 November 1935
• Docket Number: No. 18396.,18396.
• Citation: 88 S.W.2d 893
• Parties: STATE OF MISSOURI EX REL. MARION H. GREGORY, RELATRIX, v. MITCHELL J. HENDERSON, JUDGE OF PROBATE COURT, JACKSON COUNTY, MISSOURI, RESPONDENT.
• Court: Missouri Court of Appeals

88 S.W.2d 893

STATE OF MISSOURI EX REL. MARION H. GREGORY, RELATRIX, v. MITCHELL J. HENDERSON, JUDGE OF PROBATE COURT, JACKSON COUNTY, MISSOURI, RESPONDENT.

No. 18396.

Kansas City Court of Appeals. Missouri.

November 12, 1935.

Original proceeding in mandamus by State at the relation of Marion H. Gregory directed to Mitchell J. Henderson, Judge of the Probate Court of Jackson County, Missouri.

WRIT MADE PERMANENT.

James P. Aylward, George V. Aylward, Terence M. O'Brien and Dean S. Lesher for relatrix.

Cyrus Crane, George J. Mersereau, Thomas E. Deacy and Dean Wood for respondent.

BLAND, J.

This is an original proceeding in mandamus wherein the relatrix seeks to require the respondent, the Probate Judge of Jackson County, to appoint her the sole administratrix of her deceased husband's estate. By an agreement of the parties the Honorable George K. Brasher of the Kansas City Bar was appointed special commissioner to take the testimony and to report to this court his findings of fact and conclusions of law. Thereafter, the commissioner duly made his report, finding the issues in favor of the relatrix and recommending that a peremptory writ of mandamus be issued. Exceptions were duly filed and the hearing now comes up on those of the respondent:

The material parts of the report of the commissioner read as follows:

"FINDINGS AS TO THE FACTS.

"Your Commissioner finds that the following facts are undisputed:

"Undisputed Facts.

"1. That Riddelle L. Gregory died, intestate, in Kansas City, Missouri, on Sunday, April 14, 1935.

"2. He left surviving him a widow (the Relatrix), Marion H. Gregory, who is twenty-four years of age, and a resident of Kansas City, Missouri. There is no question in this case concerning the validity of the marriage between Relatrix and the deceased. There is no dispute about the fact that she was a resident of Kansas City, Missouri, at the time of the death of her said husband, and there is no dispute about the fact that she has continuously been, since prior to April 14, 1935, a resident of Kansas City, Jackson County, Missouri.

"3. Said Riddelle L. Gregory left surviving him three minor children, two sons and a daughter, all of tender years, and all of whom reside with their mother (the divorced wife of the deceased), in Johnson County, Kansas.

"4. That on April 19, 1935, the Relatrix filed in the Probate Court of Jackson County, Missouri, at Kansas City, in due form, her formal application for her appointment as administratrix of the estate of her deceased husband, and tendered her bond in due form in the penal sum of $100,000.00, and executed by an approved surety, the American Surety Company. It is admitted that the surety tendered thereon was suggested by and was and is agreeable to the Probate Judge, and that the bond is sufficient in every respect.

"5. That Relatrix did not sign or file any written renunciation of her right to be appointed administratrix of her husband's estate.

"6. That Relatrix did not sign or file any written consent to the appointment of any other person as such administrator, unless it may be held that a proposed order prepared by counsel for Relatrix may be said to be a written consent, but it is pertinent at this point to note that that proposed order which is hereinafter more fully referred to was never filed, was never entered of rcord, and was not signed by any person.

"7. That between April 19, 1935, and April 22, 1935, various discussions were had between the Probate Judge of Jackson County, Missouri, the Respondent herein; the Relatrix; her attorney, Mr. Dean S. Lesher; John B. Gage, the attorney for the former wife and for the minor children. Some of these discussions were in the chambers; some were in the court room of the Probate Court of said county, and some of them were in the private law office of the Probate Judge in the Scarritt Building in Kansas City, Missouri.

"8. On Monday, April 22, 1935, the Probate Judge of Jackson County, Missouri, announced that he would appoint the relatrix and the Commerce Trust Company as coadministrators of the estate of Riddelle L. Gregory, deceased.

"9. On April 22, 1935, and after the Probate Judge had announced the order that he would make in that matter, the attorney for the Relatrix prepared and handed to the Court a proposed order, which proposed order is attached to the transcript of the testimony and marked `Exhibit 4'. That order was never signed by the Probate Judge nor by any other person. It bore no signature of any kind and was never entered of record in the Probate Court.

"10. At the time that said Exhibit 4 was presented to the Probate Judge he refused to enter the order in that form but later on, and on the same day, to-wit, Monday, April 22, 1935, the Probate Court did enter an order in that cause reading as follows:

                "`In the Probate Court of Jackson County
                    Missouri, At Kansas City
                "`In the Matter of the Estate of Riddelle L
                   Gregory, Deceased, No. 41860
                

"`Order.

"`Now on this, the 22nd day of April, 1935, being the thirty-fifth day of the February Term, 1935, of the Probate Court of Jackson County, Missouri, it appearing to the Court upon the written application for letters of administration that Riddelle L. Gregory was at the date of his death, to-wit, the 14th day of April, 1935, a resident of Jackson County, Missouri; that he left surviving him a widow to whom he had been married approximately six months and three infant children by a former marriage; and it appearing to the Court that among the assets of his estate there was certain stock in the Postal Life and Casualty Insurance Company, which stock would be in control of said insurance company; and it further appearing to the Court that the widow, not being the mother of the minor children, there might be separate interests to protect in the administration of this estate; and it appearing to the Court that the widow is approximately twenty-four years of age and without particular business experience and that it would be to the best interest of the estate to appoint as administrator of said estate a coadministrator with the widow to administer the estate of said Riddelle L. Gregory.

"`The Court believing that it would be to the best interest of all parties concerned to appoint the widow and a coadministrator to act with her, does therefore order, adjudge and decree that Marion H. Gregory and the Commerce Trust Company be appointed as coadministrators of the estate of Riddelle L. Gregory; that Dean Lesher be appointed and act as the attorney for Marion H. Gregory and that Honorable Cyrus Crane, in whom the Court has the greatest confidence; be and is hereby appointed to act as counsel for the Commerce Trust Company and that each of these gentlemen act as counsel for the Court in this matter and that bond be fixed herein in the sum of Fifty Thousand Dollars.

                                         "`M.J. HENDERSON, Judge.'
                

"11. On Wednesday, April 24, 1935, the petition of Relatrix for mandamus was filed with the Kansas City Court of Appeals.

"12. On April 24, 1935, a written notice was served on the Probate Court of Jackson County, Missouri, advising the Respondent that the Relatrix would present to the Kansas City Court of Appeals her application for a writ of mandamus against the Respondent on April 26, 1935, at three o'clock P.M.

"13. On May 6, 1935, this Court issued its alternative writ of mandamus.

"14. On May 20, 1935, this Court appointed this Commissioner herein.

"15. No application for letters of administration has at any time been filed by any other person than the Relatrix.

"16. No written specifications of objections to the appointment of Relatrix as administratrix of her deceased husband's estate were ever filed by any person at any time.

"17. The order that was made by the Probate Court on April 22, 1935, was made considerably less than thirty-five days after the date of the death of said Riddelle L. Gregory.

"DISPUTED FACTS.

"1. Respondent contends that Relatrix consented to the appointment of a coadministrator, but admits that such consent was not in writing, and was not `filed' by her in the Probate Court, unless it can be said that the entry presented by the Relatrix' attorney on April 22, 1935, the original of which is attached to the transcript of the testimony and referred to therein as Exhibit 4, is a written consent.

"That entry reads as follows:

                "`In the Probate Court of Jackson County
                    Missouri, At Kansas City
                "`In the Matter of the Estate of Riddelle
                    L. Gregory, Deceased, No.
                

"`JOURNAL ENTRY.

"`Now on this twenty-second day of April, 1935, the application of Marion H. Gregory, widow of Riddell L. Gregory, deceased, for issuance to her of Letters of Administration herein, being duly filed and presented, the Court finds that applicant is a suitable and competent person to so administer, that she is the widow of decedent, that she resides in Jackson County, Missouri, and that decedent was a resident of Jackson County, Missouri, at the time of his death.

"`It is Therefore Ordered, Adjudged and Decreed by the Court that Marion H. Gregory be, and she is, hereby appointed administratrix herein, and that the Commerce Trust Company, a corporation, be appointed coadministrator herein, and that the bond herein be in and for the sum of one hundred thousand dollars.

                                         "`..................
                                             "`Probate Judge.'
                

"Dean S. Lesher testified that he prepared that Exhibit 4 on the order of the Respondent; that it was tendered to the Court not as a consent order, but because he had been instructed by the Court to prepare such an order, and because the Court had informed him that the Court would make that kind of an order. It was not signed by any person and the Probate Judge did not enter the proffered order of record. No such order was ever entered of record in the records of said Probate Court.

"An order was prepared by the Respondent in person...