State ex rel. Jenkins v. Bradley, 49045

• Decision Date: 11 June 1962
• Docket Number: No. 49045,No. 1,49045,1
• Citation: 358 S.W.2d 38
• Parties: STATE of Missouri ex rel. Bettye L. JENKINS (nee Salmon), Relator, v. Lawrence L. BRADLEY, Probate Judge of Dunklin County, Missouri, Appellant
• Court: Missouri Supreme Court

Page 38

358 S.W.2d 38

STATE of Missouri ex rel. Bettye L. JENKINS (nee Salmon), Relator, v. Lawrence L. BRADLEY, Probate Judge of Dunklin County Missouri, Appellant.

No. 49045.

Supreme Court of Missouri, Division No. 1.

June 11, 1962.

Powell & Jones, Dexter, for relator.

McHaney, Billings & Welman, William H. Billings, Kennett, for Lawrence L. Bradley.

Thompson Mitchell Douglas & Neill, James M. Douglas, Robert Neill, W. Stanley Walch, St. Louis, for Mercantile Trust Co., amici curiae.

Bryan, Cave, McPheeters & McRoberts, Robert H. McRoberts, Marion S. Francis, St. Louis, for St. Louis Union Trust Co., amici curiae.

Lewis, Rice, Tucker, Allen & Chubb, Charles C. Allen, Sr., Charles C. Allen, Jr., St. Louis, for Boatmen's Nat. Bank of St. Louis, amici curiae.

Charles C. Oliver, Jr., Kansas City, Rush H. Limbaugh, Cape Girardeau, Donald H. Chisholm, Kansas City, amici curiae.

HYDE, Judge.

Relator filed petition in the Circuit Court of Dunklin County, on April 26, 1961, for a writ of mandamus to compel respondent, Probate Judge of Dunklin County, 'to assume jurisdiction of the testamentary trust as provided under the Last Will and Testament of Helen L. Wilson, deceased, filed in the Probate Court of Dunklin County on November 16, 1956, under which Trust relator is one of the beneficiaries named therein.'

An alternative writ issued ordering that respondent 'assume jurisdiction of said testamentary trust and proceed, in your capacity as Probate Judge, to exercise your discretion in such office and pass on all matters concerning or pertaining to the administration of said testamentary trust.' Respondent's return stated 'that Section 472.020 of the 1955 Probate Code which purports to confer jurisdiction 'of testamentary trusts' upon Respondent is unconstitutional and void because jurisdiction of testamentary trusts is not included within the grant or scope of jurisdiction conferred upon Probate Courts by Article 5, Section 16, Constitution of Missouri of 1945; that the Legislature cannot enlarge or broaden the jurisdiction of the Probate Courts beyond that provided in Article 5, Section 16, Constitution of Missouri of 1945.' Respondent also stated that no procedural code had been provided for the exercise of jurisdiction over testamentary trusts by probate courts. The Court entered judgment ordering a peremptory writ and respondent has appealed. We have jurisdiction because of the constitutional question raised (Sec. 3, Art. V, Const., V.A.M.S.).

The only allegations concerning matters sought to be heard in the Probate Court of Dunklin County are thus stated in the Probate Court of Dunklin County with 'Relator has, prior to this date, presented her petition to the Probate Court of Dunklin County; she wishes to further petition the Probate Court of Dunklin Counth with regard to matters arising relative to and in connection with the administration of said testamentary trust, above referred to but the Probate Court of Dunklin County has failed to and now refuses to assume jurisdiction of said testamentary trust.' The record does not show what questions relator desired to present or what parties would be involved. It does not even show whether the administration of the original estate involved has been completed in Probate Court, whether there was a trustee appointed by the will and if so whether he accepted the trust, whether any administration of the trust has been commenced with assets in the possession of the trustee or if so whether there is any controversy about the administration of the trust or the authority of the trustee or any ambiguity in the trust provisions, or whether relator has been prejudiced in any way by the activity or inactivity of the trustee, if there is one in charge of the trust estate. Thus it appears both from the record and the briefs here filed that relator seeks by means of mandamus to obtain an advisory opinion about the constitutionality of Sec. 472.020 as an abstract proposition completely unrelated to any facts or specific situation. (Statutory citations are to RSMo and V.A.M.S.) "Constitutional questions are not to be dealt with abstractly' * * *. They will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us.' Local No. 8-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373; see also State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75; Atchison v. Retirement Board of Police Retirement System of Kansas City, Mo.Sup., 343 S.W.2d 25, 35. In this case, the Court was not asked to order and its writ does not order respondent to take jurisdiction of or decide any specific matter or issue connected with the administration of the trust involved.

In such an indefinite, abstract situation, we could not by mandamus order even a circuit court, which unquestionably has jurisdiction over trusts, 'to assume jurisdiction of the testamentary trust' involved, or any other trust, without any factual basis, controversy or specific issue on which it could act. Except as provided in Secs. 456.210 and 456.220, the court could act only when its jurisdiction is invoked in some proceeding commenced by a proper party. For discussion of situations in which the equitable jurisdiction of circuit courts, in Missouri, may properly be so invoked see Appointment of Successor Trustees, Trust Administration and Settlements in Missouri, Overstreet, 13 Mo.Law Review 255. Jurisdiction could be properly invoked by a trustee applying to the court 'for instructions as to the administration of the trust if there is reasonable doubt...