State v. Fowler

• Citation: 108 Mo. 465,18 S.W. 968
• Parties: STATE ex rel. GROVER v. FOWLER, Judge, et al.
• Decision Date: 22 December 1891
• Court: United States State Supreme Court of Missouri

18 S.W. 968

108 Mo. 465

STATE ex rel. GROVER v. FOWLER, Judge, et al.

Supreme Court of Missouri.

December 22, 1891.

APPEAL — APPOINTMENT OF ADMINISTRATOR.

No appeal lies from an order of the probate court appointing an administrator, such appointment, under the statute, being in certain cases discretionary, and the right of appeal from such an order not being among those enumerated in Rev. St. 1889, § 285, relating to probate appeals.

In banc.

Proceeding in prohibition by the state of Missouri, on the relation of Latitia J. Grover, against William E. Fowler, probate judge, and George J. Cockrell, to enjoin said Cockrell from acting as administrator of the estate of Elizabeth Cockrell, deceased, and to prohibit said probate judge from recognizing him as such administrator. Writ denied.

Silver & Brown, John Burgin, and Shelley Grover, for relator. Simrall & Trimble and Burris & Lawson, for respondents.

BLACK, J.

This is a proceeding in prohibition, commenced in this court, based upon the following facts: Mrs. Elizabeth Cockrell, a widow lady, died intestate leaving several children. Mrs. Grover, a widow, is a daughter, and George J. Cockrell is a son, of the deceased. They each applied to the probate court of Clay county for letters of administration upon the estate of their mother. Mrs. Grover also filed objections to the appointment of Cockrell. The probate court heard both applications and the objections at the same time, and after due consideration overruled the objections, refused the application of Mrs. Grover, and appointed Cockrell administrator, according to the prayer of his petition. Mrs. Grover applied for and was allowed an appeal from these orders. She thereupon moved the court to appoint an administrator pendente lite, on the theory that the appeal operated as a supersedeas, which motion the court overruled. Cockrell then qualified and entered upon the discharge of his duties as administrator. Mrs. Grover then commenced this proceeding, praying this court to prohibit and enjoin Cockrell from acting as administrator pending the appeal, and the probate judge from recognizing him as such administrator.

The respondents have made full return, and assign but two reasons why the writ should not be issued, and other objections which might have been made will not be considered. The first is that an appeal will not lie from an order appointing an administrator; and, second, if the law allows an appeal in such cases, the appeal does not operate as a supersedeas, so as to prevent the person appointed from discharging the duties of administrator pending the appeal.

The statute provides in detail for the appointment and removal of executors and administrators, and also for appeals from the orders and judgments of the probate court, so that it is manifest the question whether an appeal will lie from an order appointing an administrator must be determined by our statute, and not otherwise. Section 285, Rev. St. 1889, allows an appeal from the decision of the probate court in 14 specified cases, one of them being "on all orders revoking letters testamentary or of administration," and then concludes. "Fifteenth. And in all other cases where there shall be a final decision of any matter arising under the provisions of this chapter." If any appeal will lie from an order appointing an administrator, it must be by force of this fifteenth clause. The fact that the legislature provided specifically for an appeal from an order revoking...