State ex rel. Mitchell v. Guinotte

• Citation: 86 S.W. 884,113 Mo.App. 399
• Parties: STATE ex rel. MARY B. MITCHELL et al., Relators, Appellants, v. J. E. GUINOTTE, Judge, etc., Respondent
• Decision Date: 27 May 1905
• Court: Court of Appeals of Kansas

86 S.W. 884

113 Mo.App. 399

STATE ex rel. MARY B. MITCHELL et al., Relators, Appellants, v. J. E. GUINOTTE, Judge, etc., Respondent

Court of Appeals of Missouri, Kansas City

May 27, 1905

Appeal from Jackson Circuit Court.--Hon. John W. Henry, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT BY BROADDUS, P. J.

The statement of relator is sufficient for an understanding of the principal questions raised in the case. It is as follows:

S. A Mutchmore died in the State of Pennsylvania, his last will and testament being filed and admitted to probate in the probate court of Jackson county, Missouri. By his will his widow was nominated and qualified as executrix in Pennsylvania. Desiring ancillary administration in Missouri the executrix caused the will to be probated in Jackson county, and E. R. Crutcher was appointed administrator thereof. Afterwards, the relators claiming the right to administer under the statute, appeared in the probate court and filed their petition praying for the revocation of the letters issued to Crutcher, and the appointment of the relators in his place. After a full hearing the probate court denied the prayer of the petitioners, and, instead of appealing to the circuit court, the relators brought this action of mandamus to compel the respondent to do the act that he in the exercise of his judicial discretion determined ought not to be done. The petition in mandamus sets out the fact of the death of Mutchmore, the probate of his will, the appointment of Crutcher, the claim of right to administer on the part of relators, the voluntary submission of their claim to the probate court, the hearing and adverse determination the value of the estate at seventy-five thousand dollars, and then prays that the respondent be commanded to revoke the Crutcher letters and issue letters to them. The return of the respondent admits the probate of the will, the grant of letters to Crutcher, the appearance of relators and hearing of their motion, and then alleges that on a full hearing of all the evidence and consideration of the law, in the exercise of his judicial discretion, his refusal to grant the prayer of the petitioners. And then denies each and every other allegation in the petition contained. The return also alleges the existence of adequate remedy at law on the part of the relators, and the failure of the petition to state facts sufficient to constitute a cause of action against respondent. The relators replied to the return denying all the new matter therein.

On hearing in the circuit court the relator, Mary B. Mitchell was introduced and objection made on the part of respondent to the introduction of any evidence on the ground that the matter complained of in the petition was a proper matter for the determination of the probate court, and that mandamus cannot be substituted, or take the place of writ of error or appeal. This objection the court overruled. Thereupon, relator sought to establish her relationship to the testator, to which respondent objected, for the reason that it was a proper matter for the determination of the probate court, and was passed on adversely to the relators and cannot be reviewed by mandamus. After all the evidence of petitioners was in, the circuit court sustained the demurrer of the respondent and dismissed the relators' bill.

Cause reversed and remanded.

James C. Williams for appellants; F. M. Black of counsel.

(1) Letters of administration should be granted to those who are entitled to distribution of the estate, or one or more of them. R. S. 1899, sec. 7, art. 1; Mullanphy v. Court, 6 Mo. 568; Skelly v. Veerkamp, 30 Mo.App. 52; State ex rel. v. Collier, 62 Mo.App. 38; State ex rel. v. Fowler, 108 Mo. 470; Woerner, Am. Law of Administration (2 Ed.), secs. 238, 242; 11 Am. and Eng. Ency. of Law (2 Ed.), p. 771; Colton v. Taylor, 43 Ky. (4 B. Mon.) 358; Hayes v. Hayes, 75 Ind. 397; In re Nickols Estate, 21 Nev. 462; Clay v. Jackson, T. U. P. Charlt. (Ga.); Leverett v. Dismukes, 10 Ga. 98; Anderson v. Potter, 5 Cal. 63; Breen v. Pangborn, 51 Mich. 32; Bryd v. Gibson, 2 Miss. (1 How.) 568; Smith v. Moore, 4 Miss. (3 How.) 40; Sayre v. Sayre, 48 N.J.Eq. (3 Dick.) 267; Churchill v. Prescott, 2 Bradford's Sur. 304; Munsey v. Webster, 24 N. H. (4 Fost.) 126; Todhunter v. Stewart, 39 Ohio St. 181; Rollin v. Whipper, 17 S.C. 32; Cooper v. Lowerre, 1 Barb. Chancery 45; Schouler on Executors and Administrators, sec. 101. (2) The writ of mandamus lies to compel a public officer to perform a duty concerning which he is invested with no discretionary power. State ex rel. v. Adams, 9 Mo.App. 464; State ex rel. v. Field, 37 Mo.App. 83; Patton v. Williams, 74 Mo.App. 451; State ex rel. v. Garesche, 65 Mo. 480; State ex rel. v. Adams, 76 Mo. 605; State ex rel. v. Fowler, 108 Mo. 470; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Klein, 140 Mo. 502; State ex rel. v. Meier, 143 Mo. 439; 14 Am. & Eng. Ency. of Law, pp. 139-140; Williams on Executors (American Note by J. C. Perkins), p. 435; Woerner's American Law of Administration (2 Ed.), sec. 545; 14 American & Eng. Ency. of Law (1 Ed.), p. 102; High on Extraordinary Legal Remedies, sec. 17; Merrill on Mandamus, 7, 8, 30, 232; Brennan v. Harris, 20 Ala. 185; Nebb v. Nebb (Md.), 5 Gill 506; Estate of Keane, 56 Cal. 407; Ebusoer v. Schieler, 50 Ohio St. 701.

Johnson & Lucas for respondent.

(1) On the part of the respondent it is contended that the estate, exceeding in value forty-five hundred dollars, this court has no jurisdiction. Gartside v. Gartside, 42 Mo.App. 513; Brick Co. v. Refining Co., 48 Mo.App. 635, 636. (2) Mandamus will not lie in this case; there is an adequate remedy at law; the relators should have appealed from the judgment of the probate court denying the prayer of their petition and dismissing the same. An appeal lies from an order of a probate court overruling a motion for the removal of an administrator. R. S. 1899, sec. 278. (3) This clause is large enough to include the right of appeal from an order of the probate court refusing to revoke letters testamentary or of administration. Ferguson v. Carson, 13 Mo.App. 31; Owens v. Link, 48 Mo.App. 536; Ferguson v. Carson, 86 Mo. 677; State ex rel. v. Collier, 62 Mo.App. 38; State ex rel. v. Shuhman, 87 Mo.App. 576; State ex rel. v. McKee, 150 Mo. 241-3-5; State ex rel. v. Engleman, 86 Mo. 561; State ex rel. v. Balte, 151 Mo. 371; State ex rel. v. Allen, 92 Mo. 24; State ex rel. v. Heman, 108 Mo. 620; State ex rel. v. Field, 37 App. 98. (4) The writ of mandamus cannot be used to compel an inferior court to reverse a decision which it has made in the exercise of its legitimate jurisdiction; this can only be done by a writ of error or an appeal. Ex Parte Flepperi, 4 Otto 348; Ex Parte Schwabb, 8 Otto 240; Ex Parte Burtis, 13 Otto 238; Ex Parte Perry, 12 Otto 183; Coleman v. Dalton, 71 Mo.App. 24; Howland v. Railroad, 134 Mo. 479; State ex rel. v. Smith, 104 Mo. 424; 2 Schouler, Executor & Administrator, sec. 150; 2 Woerner, Law Admr., sec. 145, 266, 67 and 68; State v. Hoerner, 16 Mo.App. 197-201.

OPINION

BROADDUS, P. J.

It is conceded that one of the relators, under section 7, Revised Statutes 1899, would be entitled to administer on the estate of the deceased as being the next of kin. Even if it were not so conceded, the statute leaves no room for doubt in the matter, and it is useless to comment on the authorities of relators cited on the question. The only question before the court is whether a writ of mandamus will lie to compel the probate court to set aside the order appointing Crutcher, not of kin, administrator and grant letters to relators or either of them. Respondents contend that the writ of mandamus will not lie as there was a remedy by appeal.

The question arose in State ex rel. Grover v. Fowler, 108 Mo. 465, 18 S.W. 968, where it was held that the right of appeal did not exist--but the remedy was by mandamus as the probate court had no discretion in the matter. In discussing the right of appeal it was said that, if such right existed it was under the fifteenth clause of section 278 Revised Statutes; and that "the fact that the legislature provided specifically for an appeal from an order revoking letters of administration, but made no mention of an appeal from an order appointing an administrator, raises a strong inference that it was not the intention to allow an appeal in the last-named case." The appeal was disallowed. If what is there said is the law, it also follows there is no appeal from the action of the court in failing to revoke an order appointing an administrator.

In Owens v. Link, 48 Mo.App. 534, it is held: "An appeal lies from an order of a probate court overruling a motion for the removal of an administrator." The decision appears to have been grounded upon the case of Ferguson v. Carson, 13 Mo.App. 29, and the court makes the statement that it was affirmed by the supreme court in 86 Mo. 673. The Ferguson case was where an appeal was taken "from the refusal of the probate court to make a preliminary order of publication for the sale of real estate to pay debts of the estate." The statute provides specifically for appeals in such cases. The question arose in State v. Collier, 62 Mo.App. 38. The court, after citing State ex rel. Grover v. Fowler, supra, and Woerner's Amer. Law of Administration, said: "The fact that a person thus illegally passed by, if a fit person, may have his remedy by mandamus in the first instance, as many cases hold, in no way abridges his right of appeal. In fact, the reasons are manifold why the right of appeal is preferable."

But the question here is not whether the right of appeal will lie in such cases, but whether the relators are entitled to the remedy by mandamus. The cases of State ex rel....