State ex rel. Mitchell v. Gideon

• Decision Date: 11 February 1922
• Citation: 237 S.W. 220,215 Mo.App. 46
• Parties: STATE ex rel. ED M. MITCHELL v. T. H. GIDEON, Probate Judge et al
• Court: Missouri Court of Appeals

237 S.W. 220

215 Mo.App. 46

STATE ex rel. ED M. MITCHELL v. T. H. GIDEON, Probate Judge et al

Court of Appeals of Missouri, Springfield

February 11, 1922

PEREMPTORY WRIT AWARDED.

Herman Pufahl and Wright & Ruffin for relator.

Frank B. Williams and John T. Sturgis for respondents.

FARRINGTON J. Cox, P. J., and Bradley, J., concur.

OPINION

PROHIBITION.

FARRINGTON J.

--This is an original proceeding instituted in this court seeking to prohibit the respondents as Judge of the Probate Court of Greene County, Missouri, and Charles A. P. Seiford, appointed as Executor with the will annexed of the Estate of William H McGuire, deceased, from taking any further action in said estate or further cognizance of said estate.

We are thoroughly convinced that the peremptory writ of prohibition should issue against said Judge of the Probate Court and said Executor with the will annexed of said Estate appointed by the Probate Court of Greene County, prohibiting them from further proceeding in this cause.

The facts upon which we base this opinion are as follows: William H. McGuire, deceased, was, admittedly, for a great number of years a resident of Brighton, Polk County, Missouri. Several years prior to his death, which occurred August 2, 1921, he had business which brought him daily to the city of Springfield, Missouri. He kept an automobile and went to Brighton, Polk County, his home, almost daily. He owned farm lands in Polk County. As he grew older and his health was impaired these visits to Brighton and Polk County grew less frequent. Some time prior to his death he made a deed to the place which unquestionably had been his mansion house where he and his wife, who died some time prior to his death, lived in Brighton, Polk County, Missouri, but reserved to himself a life interest in part of that building and there maintained rooms which he furnished and in which he kept some wearing apparel. It is shown in the testimony that he remained in Springfield at night, that is most of the nights, for the last several years of his life at his brother's home and at his daughter's home.

On July 2, 1921, he executed a will in which he named Ed Mitchell, his son-in-law, as Executor, and in which will he described himself as of Brighton, Polk County, Missouri. This will, with this declaration in it, was made exactly one month prior to his death. He was at that time a sick man and went to his daughter's home in Springfield where he remained until some time in the month of July, 1921, when he went to a sanitarium in Wisconsin for his health. He remained there but a short time, when he returned to Springfield and died.

There is some testimony in the record which shows that he might have contemplated buying a home here or of making Springfield his home, but we think there is no doubt that the overwhelming testimony in this case shows that there was no act or declaration made after July 2nd which would overcome the solemn declaration made in his will that he was of Brighton, Polk County, Missouri. [In re Lankford Estate, 272 Mo. 1, 197 S.W. 147.] We have stated these facts and state our conclusion on them that the whole facts of the case may appear.

We do not think that a finding of where his abode was, for the purpose of determining this action in this court, is necessary, because the jurisdiction of his estate was, under the facts which we will hereafter set forth, clearly vested in the Polk County Probate Court before the Probate Court of Greene County ever acquired jurisdiction to administer this estate. With reference to that phase of the case the testimony shows, as we have stated before, that William H. McGuire died in Springfield on August 2, 1921; that his son-in-law, Ed Mitchell, was named in the will dated July 2, 1921, as the Executor thereof.

The evidence is uncontradicted, and in fact largely record evidence, that early on the morning of August 18, 1921, Mitchell, the Executor, in the will, was in Bolivar, Polk County, Missouri, called up the Probate Court of that County and at 9 o'clock in the morning filed with the Probate Court the will of William H. McGuire and a petition for letters testamentary. As stated before, the will was marked filed on August 18, 1921, in the office of the Probate Court of Polk County, at Bolivar, Missouri and so was the application for probate of the will filed on said date.

It further appears, without contradiction, from the record evidence before us that the witnesses to the will of William H. McGuire lived in Springfield, and that the Probate Judge of Polk County issued a commission to the Probate Judge of Greene County to cause to come before him the witnesses to the will that their testimony might be taken. This commission with a letter dated August 19, 1921, was sent to the Probate Judge of Greene County but the will which was to be proven under this commission was not attached thereto. Upon receipt of this letter and the commission the Probate Judge of Greene County returned the letter and commission and asked for the will, and on the 21st day of August, 1921, the Probate Judge of Polk County again wrote to the Probate Judge of Greene County stating that he had overlooked sending the will in the original letter, and that Frank B. Williams, an attorney of Springfield, Mo., who represented, and who now represents the parties attempting to uphold the jurisdiction of the Greene County Probate Court, was in his office on the 19th of August, the day after the will was filed with the Probate Court of Polk County, and that he sent the will by Williams to Judge Gideon, Judge of the Probate Court of Greene County instead of mailing it, and the letter of August 21st to the Judge of the Greene County Probate Court instructed him to go ahead and take the proof of the will under the commission. It also calls attention to the fact that some question of the residence of the testator had been raised, which could be settled later.

It appears from the evidence that on the 18th of August, 1921, some time during the day a petition was filed by Frank B. Williams, attorney for some of the beneficiaries in the will, with the Probate Court of Greene County asking that Ed Mitchell and Chas. J. Wright, his attorney, who was the attorney for the testator and drew the will, and Ella Mitchell, wife of Ed Mitchell, and who is the daughter of the testator, be required to produce the will of William H. McGuire, setting forth that the deceased had died on the 2nd day of August, 1921, leaving a will.

It was shown under the citation which was issued out of the Probate Court of Greene County that the same was done under section 556, Revised Statutes 1919, and in this citation it required Ella McGuire Mitchell, Ed Mitchell and Chas. J. Wright to appear in the Probate Court of Greene County on the 19th day of August, 1921, at 1 o'clock P. M. to answer the petition which was filed by Frank B. Williams. For some reason not appearing in the record, no action was taken until the 22nd day of August, which was four days after the will of William H. McGuire had been filed in the Probate Court of Polk County for probation and four days after the application for letters testamentary had been filed by the Executor named in the will in the Probate Court of Polk County.

It appears from the record that on the 19th day of August, 1921, which was the day after the will had been filed in the Probate Court of Polk County, attorney Frank B. Williams appeared in the Polk County Probate Court and filed a protest to the probating of the will of William H. McGuire by the Polk County Probate Court and the same was filed entitled, "In the Probate Court of Polk County, August Term, 1921. In the Matter of the Probate of the Last Will of William H. McGuire, Deceased." It was on this day that the Probate Judge of Polk County ascertained that he had forgotten to mail the will with the commission to the Probate Court of Greene County, and according to his version he handed it to Mr. Frank B. Williams for the purpose of delivering it to the Judge to take the witnesses' testimony under the commission which had been sent. Mr. Williams' testimony is to the effect that he understood he was taking it to Judge Gideon for the purpose of having it at the trial under the citation which had been issued on the 18th by the Probate Judge of Greene County and for determination by the Judge of the Probate Court of Greene County as to where this estate should be administered. In any event, whatever may have been the understanding or misunderstanding between these two witnesses, the will was produced by Frank B. Williams in the Probate Court of Greene County on the 22nd day of August, which was the date set and the time set for Ed Mitchell, his wife and Chas. J. Wright to answer why they had not caused the will of William H. McGuire to be probated. When the will was produced in the Probate Court of Green County by Frank B. Williams it was filed with the Probate Court of Greene County, and the Probate Court of Greene County immediately took testimony and found that William H. McGuire was a resident of Greene County and not a resident of Polk County and that the will should be probated in Greene County. It appears from the record that the will was not actually probated in Greene County until August 30, 1921.

The record further shows that some time after this application was made by Charles A. P. Seiford for letters of administration with the will annexed. Judge Gideon, Judge of the Probate Court of Greene County, returned the commission unexecuted to the Probate Court of Polk County informing him that the Probate Court of Greene County was the proper court in which the will of William H. McGuire should be probated.

The record before us further shows that the...