"This is an original proceeding in prohibition, brought at the relation of Ione N. Russell, administratrix d.b.n.c.t.a. of the estate of Alexander R. Russell, deceased, against Hon. Fred E. Mueller, Judge of the Circuit Court of St. Louis County, Mo., Division No. 3, the purpose of the proceeding being to have respondent prohibited from further assuming or exercising jurisdiction in a certain cause pending in his court on appeal from the probate court of St. Louis County.
"[1] The controversy grows out of certain phases of the administration of the estate in
question. It appears that relatrix, Ione N. Russell, the widow of the deceased, was the original executrix of his estate, and that she served in that capacity until March 17, 1930, when she was removed by the probate court, pursuant to an order sustaining the petition of Randolph Laughlin, a creditor of the estate, charging that she had absented herself from the State for a space of four months, and had become a nonresident. On the same date, it was ordered by the court that Edward W. Terry, the public administrator of St. Louis County, be appointed administrator d.b.n.c.t.a., whereupon he took over the estate, and continued in charge thereof for some eleven months thereafter. While there is some little controversy between the parties as to whether Terry had been appointed in his official, or in his individual, capacity, we think the fact that he was designated and described in the order of appointment as the public administrator, and that he admittedly took charge of the estate without giving bond, warrants the conclusion that he was acting in his official, rather than in his individual, status. [In re White's Estate, 221 Mo. App. 984, 295 S.W. 504.]
"Immediately upon the entry of the order for her removal, relatrix filed her settlement as executrix. On August 11, 1930, Laughlin's claim as creditor was allowed against the estate, in the sum of $123,000, from which allowance Terry appealed to the Circuit Court of St. Louis County, where the matter is now pending. On September 17, 1930, relatrix filed her final settlement to the date of her removal, which was approved by the probate court; and relatrix was ordered to turn over the cash balance in her hands, and the books and papers of the decedent, to Terry as her successor. It is admitted that the latter order was never complied with by the relatrix, her excuse being that no demand for compliance was ever made upon her by Terry.
"Following the approval of the final settlement of relatrix, proceedings were instituted by Laughlin to discover assets, and a citation was issued to relatrix in connection therewith. All of the several matters that transpired in the probate court pursuant to the proceeding to discover assets are of no importance upon the issues determinative of this proceeding, save as they may serve to disclose the basis for Laughlin's subsequent charges of misconduct on the part of relatrix as executrix.
"It appears that on or about October 25, 1930, a motion was filed in the probate court by a counsel representing certain interests in the estate, charging Terry with misconduct, and praying his removal as administrator of the estate. On December 22, 1930, after the hearing on the citation and motion to remove him had been continued, Terry filed his resignation; and on February 10, 1931, upon the filing of proof of the publication of his intention to resign, Terry's resignation was accepted by the court, he was ordered to make settlement to the date of his resignation, and relatrix was thereupon appointed administratrix d.b.n.c.t.a. The order further shows that on the same day relatrix filed her bond in the sum of $20,000, which was duly examined and approved by the court.
"On February 12, 1931, Laughlin, as a creditor of the estate, prayed for and was granted an appeal to the circuit court of St. Louis County from the orders of the probate court accepting Terry's resignation, and appointing relatrix as his successor.
"The cause on appeal was assigned to Division No. 2 of the circuit court, wherein relatrix, on March 20, 1931, filed her application for a change of venue, upon the ground that the judge presiding in that division was prejudiced against her, and in favor of the opposite party. On April 10, 1931, said application for change of venue was denied, the theory of the court being (so it is urged in respondent's brief), that relatrix was a mere interloper, the controversy on appeal being purely one between Laughlin and Terry.
"On April 15, 1931, when the cause was docketed for the second time, relatrix filed her motion to dismiss the appeal on the ground that no right of appeal lay from the order of the probate court, either accepting Terry's resignation, or appointing relatrix as his successor. On April 20, 1931, the court overruled said motion to dismiss; and then, reversing its former ruling that relatrix was not a party to the appeal, of its own motion it vacated and set aside its former order denying a change of venue, reinstated the application of relatrix and sustained the same, and ordered the cause transferred to Division No. 3, over which respondent presides.
"On April 21, 1931, respondent set the cause down for trial, and after the taking of certain testimony, which was adduced at the instance of Laughlin alone, he ordered the cause continued until a later date, when additional testimony might be taken, and the cause finally submitted. Laughlin's evidence, which was received subject to the right of relatrix to dispute it, detailed the facts in regard to the several proceedings in the probate court about as we have heretofore stated them; and, in addition, Laughlin offered to prove that the proceedings had in the probate court on February 10, 1931, when Terry's resignation was accepted and relatrix appointed as his successor, were pursuant to a fraudulent conspiracy between Terry and relatrix, and that relatrix had been guilty of a number of specific acts of misconduct in her original capacity of executrix.
"Laughlin's offer of proof was objected to by relatrix, and the return discloses that the
objection was sustained by respondent upon the ground that, if Laughlin desired to have relatrix removed as administratrix, his remedy was to file a motion in the probate court asking for her removal, and then to appeal from the order of the court refusing it. That the court so ruled is not denied in the reply filed by relatrix, and the cause having been submitted on the pleadings, we are entitled to assume for the purposes at hand that the only matter over which respondent is now threatening to exercise jurisdiction is in the determination of the propriety of the first order appealed from, which goes to the question of whether or not Terry had the right to resign, and the probate court the right to accept his resignation. In other words, respondent seems already to have held that the order of the probate court appointing relatrix was not appealable; and, therefore, whether his ruling was right or wrong, relatrix has no cause for complaint about it, and there is no threatened exercise of jurisdiction in connection with that feature of the appeal so as to entitle her to ask to have the same prohibited.
"Now there is and can be no question raised about the right of the ordinary executor or administrator to resign, for that right is expressly granted by statute, the same being Sections 44 and 45, Revised Statutes 1929. These sections provide that if any executor or administrator shall publish due notice of his intention to resign, and if the court, on proof of such publication, and for good cause shown, shall believe that he should be permitted to resign, it shall so order, and such person shall then surrender his letters,...
