State ex rel. Jones v. Davis

• Citation: 216 S.W.2d 155,240 Mo.App. 411
• Parties: State of Missouri ex rel., Thomas Jones, Respondent (Relator) v. Honorable George N. Davis, Judge, Appellant (Respondent)
• Decision Date: 06 December 1948
• Court: Kansas Court of Appeals

216 S.W.2d 155

240 Mo.App. 411

State of Missouri ex rel., Thomas Jones, Respondent (Relator) v. Honorable George N. Davis, Judge, Appellant (Respondent)

Court of Appeals of Missouri, Kansas City

December 6, 1948

Delivered

Appeal from Circuit Court of Macon County; Hon. George N. Davis, J.

Affirmed.

Dan R Hughes, Jno. R. Hughes, Waldo Edwards, Paul D. Hess, Jr., for appellant.

(1) Respondent's petition for an alternative writ of mandamus fails to state a claim upon which relief can be granted. Gum v. Myers, 221 Mo.App. 392, 277 S.W. 948, 949 (1925, K. C.). State ex rel. Markwell v. Colt, 199 S.W. 2d 412, 414 (1947, K. C.). 1939 Mo. Rev. Stat., Sec 283; Mo. R. S. A., Sec. 283, p. 500. (2) To entitle a decedent's purported heir to appeal as an heir from a judgment allowing a claim against decedent's estate, to which proceeding such purported heir is not a party, the interest or status of such person as an heir must appear elsewhere of record in the estate; Zumwalt v Zumwalt, 3 Mo. 269. In re Main's Estate, 236 Mo.App. 88, 152 S.W. 2d 696, 701. Redman v. Davis, 88 Mo.App. 534, 535. (3) Such interest or status cannot be established solely by averments made in the purported heir's affidavit for appeal from such judgment. Gum v. Myers, 221 Mo.App. 392, 277 S.W. 948, 949. Bailey v. Ford, 7 S.W. 2d 704, 705. (4) An heir of a decedent is not bound by administration proceedings upon his decedent's estate where such heir is neither a party to any of the proceedings nor otherwise mentioned of record therein. Buck v. McMinn, 300 S.W. 497, 499.

John V. Goodson for respondent.

(1) An heir has the right of appeal by our statutes. Revised Statutes of Missouri, 1939, Section 283.

OPINION

Dew, J.

Appeal from Macon County Circuit Court.

Upon the petition of the respondent herein and upon a hearing thereon, the court below issued its peremptory writ of mandamus directing appellant, probate judge, to certify to the circuit court, "the same as on appeal", the files and transcript in a proceeding allowing a certain claim against the estate of a decedent. The successor probate judge has appealed from said judgment.

John O. Jones, a resident of Macon County, Missouri, died intestate July 22, 1943. Upon the application of Thomas H. Williams, a second cousin of the deceased, the latter was granted letters of administration of said estate. The application did not list the respondent or any other heirs, except cousins, including the applicant. Later, Morton S. Meisner was appointed administrator ad litem of said estate in the place of said Thomas H. Williams, and on the same day Olive Williams, wife of said Thomas H. Williams, filed a claim against said estate in the amount of $ 1332, consisting of alleged services in caring for the deceased from September 24, 1937, until his death. The administrator ad litem waived service of notice of the presentment of the account on the date said claim was filed and a jury being waived and hearing had, judgment was rendered on said account in the full amount thereof and assigned to the sixth class of claims. In due time an affidavit for appeal from the judgment rendered on said claim was filed reading:

"John V. Goodson, attorney for Thomas Jones, son of deceased, being sworn says that the appeal from the judgment of the Probate Court, rendered June 10, 1944, is not taken for vexation or delay, but because the affiant believes that the appellant is aggrieved by the decision of the Court".

Upon the face of this affidavit for appeal, at the bottom thereof, reference was made to an attached certified copy of the marriage certificate of John O. Jones, and a certified copy of the birth certificate of Thomas Jones. The marriage certificate attached contained various statements which purported to show that the marriage of John Jones was solemnized in the County of Anglesey, Wales, December 31, 1880, to Jane Jones. The birth certificate attached to the affidavit purported to certify to the birth of Thomas Jones, son of John Jones and Jane Jones, on May 20, 1885, in the county of Wales therein named.

Upon the filing of said affidavit for appeal with attachments aforesaid, the probate court did not then dispose of the same but fixed September 16, 1944, for a hearing concerning the interest of respondent in said judgment and his right to appeal therefrom. On that date the hearing on said affidavit for appeal was conducted and the said marriage and birth certificates, letters, and the testimony of various witnesses were introduced, purporting very strongly to establish that the respondent Thomas Jones was the son and heir of the deceased; that he himself was a man of advanced age, blind since birth, and still residing in Wales. There was no evidence to the contrary. At the conclusion of the hearing the probate judge found "that the records of this Court do not show that the said (respondent) * * * has any interest in the said litigation wherein the said judgment in favor of the said Olive Williams against the estate of said deceased in the sum of $ 1332.00 was rendered", and "that the records of this Court do not show that the said (respondent) is an heir or is in any way interested in the estate of John O. Jones, deceased". The court thereupon ordered that said affidavit for appeal be stricken from the files and records of the court.

On the same day the respondent Thomas Jones, through his attorney, filed a pleading under oath entitled "Motion To Record Thomas Jones, Who Resides In Wales, As A Son And Heir Of John O. Jones, Deceased", in the following words:

"Comes now John V. Goodson, attorney, of Macon, Missouri, and moves the Court that Thomas Jones, who resides in Wales, be listed as an heir and one entitled to share in distribution of the estate of John O. Jones, deceased.

"Movant states that he has had correspondence with the said Thomas Jones and verily believes that said Thomas Jones is a son of John O. Jones, who died a resident of Macon County, Missouri, July 22nd, 1943, and that said Thomas Jones is entitled to be regarded as a possible heir and one entitled to share in the distribution of estate of said John O. Jones". Signed "John V. Goodson, Attorney for Thomas Jones, Aforesaid".

The attorney Goodson testified that he filed the above formal application for declaration as heir during a recess in the hearing on the affidavit for appeal. The probate judge testified that the same was not filed until 5 o'clock on that day, and after the order had been made striking the affidavit for appeal from the records.

On September 18, 1944, the probate judge notified the parties that on September 26, 1944, during the same term of court, it would hear the said formal motion of Thomas Jones to be recorded as an heir of the decedent. On September 26, practically the same evidence was before the court as had been introduced at the hearing on the affidavit for appeal. After the hearing on September 26, on the motion aforesaid, the court found that "John O. Jones and Jane Jones were lawfully married in Wales in the Kingdom of Great Britain on the 31st day of December, 1880; that on the 20th day of May, 1885, there was born of said marriage a son, Thomas Jones, now a resident of Wales in the Kingdom of Great Britain; and that as such, the said Thomas Jones is an heir of the said John O. Jones, deceased, and entitled to share in the distribution of his estate; and it is so ordered".

In the meantime, however, the administrator Williams had published notice of final settlement to be made September 5, 1944, and on that day filed the same, and on the same day the court approved it and finally discharged the administrator. In so doing the court ordered, in effect, that $ 1047.84, remaining in the hands of the administrator, be applied to the judgment on the claim of Olive Williams, and found there were no further assets in the hands of said administrator.

On September 30, 1944, Thomas Jones, through his attorney, filed petition in the Circuit Court of Macon County, for a writ of mandamus, setting forth, in substance, the above facts, together with allegations of conspiracy and fraud, and prayed that a writ issue, commanding Probate Judge Shelton to grant and sustain respondent's appeal in the case of Olive Williams against Morton S. Meisner, administrator ad litem of the estate, and to properly transfer to the circuit court the transcript and original papers in the cause. On October 7, 1944, the application for the alternative writ of mandamus was argued and taken under advisement, and on May 8, 1945, the preliminary writ was ordered issued. Accordingly, on November 13, 1945, the circuit court issued its alternative writ, and on December 13, 1945, Probate Judge Shelton filed his return to the alternative writ. Respondent Thomas Jones filed an answer to the writ and on September 5, 1946, a hearing was had on the merits, and the cause taken under advisement. During the hearing the circuit court stated: "* * * It stands admitted that he is a son and heir". By Mr. Dempsey (of counsel for appellant) "We think he is; Yes. We think he is. We don't know it". At another stage of the hearing the circuit court said: "* * * You are not denying that * * * this appellant * * * Thomas Jones was the son and heir of John O. Jones? By Mr. Dempsey: "We are not denying the fact that he is".

On January 23, 1947, the circuit court found the issues for the respondent Thomas Jones, and issued its peremptory writ accompanied by the findings of the court. A judgment was entered which ordered the issuance of a peremptory writ of mandamus commanding the said respondent that he certify to the circuit court of Macon County, Missouri the files and transcript of the certain case in the Probate Court of said county styled Olive Williams, pla...