State v. Guinotte

• Decision Date: 04 June 1900
• Parties: STATE ex rel. HAMILTON v. GUINOTTE, Probate Judge.
• Court: Missouri Supreme Court

57 S.W. 281

156 Mo. 513

STATE ex rel. HAMILTON v. GUINOTTE, Probate Judge.

Supreme Court of Missouri.

June 4, 1900.

WILL CONTEST — APPEAL — ADMINISTRATION PENDENTE LITE — REVOCATION BY PROBATE COURT — JURISDICTION — EVIDENCE — SUFFICIENCY — APPEAL BOND — NECESSITY — CERTIORARI — REMEDY BY APPEAL — INADEQUACY — DISCRETION.

1. Rev. St. 1889, § 13, provides that if the validity of a will be contested, or the executor be a minor, or absent from the state, letters of administration shall be granted during the time of such contest, minority, or absence to some other person. Held, that an order of the probate court revoking letters of administration issued under such section, made after the determination of a will contest in the circuit court, but during the pendency of an appeal therefrom, was erroneous, the appeal to the supreme court being a part of the "time of such contest."

Robinson and Valliant, JJ., dissenting.

2. Where suit is brought in a circuit court to contest the validity of a will, the jurisdiction of the court is not original, but derivative, the matter being transferred to that tribunal from the probate court as if on appeal; and hence on the institution of such suit the probate court lost jurisdiction to revoke letters of administration issued pendente lite, and could not regain such jurisdiction until the result of the will contest had been officially certified to it from the appellate tribunal; and an order revoking such letters, made by the probate court in the interim, was coram non judice and void.

3. Rev. St. 1889, §§ 8888, 8889, authorize a will contest in the circuit court, and the trial of an issue as to whether the writing produced be the will of the testator or not, and provide that the jury's verdict or court's finding shall be final, saving the right to grant a new trial and an appeal on matters of law. Held, that on appeal from the circuit court the supreme court will review the sufficiency of the evidence, and that hence an order of the probate court, made during the pendency of an appeal involving such issue, which revoked letters of administration issued pendente lite, was erroneous.

Robinson and Valliant, JJ., dissenting.

4. It is not necessary that an appeal bond be given on appeal in a will contest from the circuit to the supreme court, in order to vest jurisdiction of the cause in the latter tribunal to the exclusion of the lower courts, since an appeal in such a case carries with it its own supersedeas.

Robinson and Valliant, JJ., dissenting.

5. Though Rev. St. 1899, § 278, authorizes an appeal to the circuit court from an order of the probate court revoking letters of administration, certiorari to the supreme court will also lie to review such order, where it was made without jurisdiction, and the remedy by appeal would not furnish adequate relief.

6. After a writ of certiorari has been issued, and the record of the inferior court has been certified in response thereto, it is too late for the court to then determine whether the writ was awarded in the proper exercise of its discretion.

Gantt, C. J., and Burgess and Brace, JJ., dissenting.

In banc. Certiorari by the state, on the relation of one Hamilton, against J. E. Guinotte, probate judge, to review an order revoking letters of administration pendente lite. Motion to quash the order granted.

S. W. Hilt and Chas. C. Madison, for relator. Flournoy & Flournoy, for respondent.

SHERWOOD, J.

The will of Thomas G. Hall was admitted to probate in the probate court of Jackson county, and letters testamentary without requirement of bond issued to his daughter and executrix, Maggie McCune. These things being done, relator brought suit in the circuit court of Jackson county to contest the will. A change of venue transferred this cause to the Cass circuit court. Pending this suit, the probate court appointed an administrator pendente lite of Hall's estate, and ordered the executrix to turn over the estate to him, which was done. The will contest in Cass county resulted in establishing the paper writing as the last will of Hall, and thereupon relator paid the costs, and appealed to this court, but gave no bond. That appeal is still pending. Upon being advised of the result of the will contest in the Cass circuit court, the executrix applied to be reinstated in her former position. Her application was granted, and relator ordered to turn over the estate to her. To prevent execution of this order, certiorari is prayed, and a motion to quash that order interposed.

Various sections of the statute are relied on by the adverse litigants to this record, both to uphold as well as to overthrow the action of the probate court, which sections will now be quoted.

Section 13, Rev. St. 1889, provides: "If the validity of a will be contested, or the executor be a minor, or absent from the state, letters of administration shall be granted during the time of such contest, minority or absence to some other person, who shall take charge of the property and administer the same according to law, under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator when qualified to act."

Sections 8888 and 8889, Id., are the following:

"If any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and, by petition to the circuit court of the county, contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court.

"The verdict of the jury or the finding and judgment of the court shall be final, saving to the court the right of granting a new trial, as in other cases, and to either party an appeal, in matters of law, to the supreme court or to the St. Louis and Kansas City courts of appeal."

The facts already related and the statutory provisions quoted give rise to these questions: First. What is meant by the expression, "during the time of such contest"? Second. What effect did the suit brought in the circuit court to contest the will have upon the jurisdiction of the probate court? Third. What effect upon the jurisdiction of the probate court did the appeal have which was taken from the circuit court to this court?

1. The initial question above propounded is as comprehensive so far as concerns the borders and boundaries of this case, as the two commandments on which hang "all the law and the prophets." It has been determined of words similar to those here litigated that "during the term," as used in the constitution of California, means "during the time or period for which the officer is elected." People v. Burbank, 12 Cal., loc. cit. 392. In that case the constitution of that state provided that "district judges shall not be eligible to any other office during the terms for which they shall have been elected; and further that their compensation shall not be increased or diminished during that term." In discussing these provisions the court say: "If A. is elected district judge, and enters upon the office, or accepts it for a day, he is disqualified for other office during the whole period of six years; and so, after his election, it would not be competent for the legislature to change the compensation." And they say their only difficulty in construing these provisions "is the difficulty of making clearer what the constitution has made palpable." And it has been determined also that the legal import of the words "during coverture," as explained by Lord Coke (volume 1, p. 149), mean "while the marriage lasts." Citing State v. Fry, 4 Mo., loc. cit. 159. In section 13, supra, are grouped together three classes of cases authorizing and commanding the appointment of an administrator pendente lite, to wit: (1) "During the time of such contest;" (2) "during the time of such minority;" (3) "during the time of such absence." Concerning an appointment durante absentia, it has been ruled that such administration is at an end the moment the absentee returns. Schouler, Ex'rs (2d Ed.) § 133. So that, if it be error to revoke the appointment of an administrator pendente lite while the executor remains a minor, or while he remains absent from the state, it must be equally error to revoke such an appointment while the contest over the will is still in progress. No reason can be urged why revocation of letters granted during minority or absence should not occur during those periods that should not apply with equal force to letters granted "during the time of such contest." In the old law the words were "during such contest." Laws 1825, p. 94, § 6. At the revision of 1835 the words "the time of" were added (Rev. St. 1835, p. 42, § 9), as if to give emphasis to the other words of the section by those which were subsequently added. The administrator thus appointed "during the time of such contest" is commonly called an administrator pendente lite, which means an administrator "during litigation." Whart. Law Dict. Now, "lis" means "a suit, action, controversy, or dispute" (Whart. Law Dict.), and "dispute is a conflict or contest" (Stand. Dict.). "Controversy is a disputed question; a suit at law" (Id.); and "lis pendens" is a pending suit (Whart. Law Dict.). So that, as long as the lis continues pendens, so long does the administrator appointed during litigation remain a provisional administrator. And the pendens of the lis is not disturbed nor in any manner affected by the fact of an appeal taken from the circuit court to this court. Institution v. Collonious, 63 Mo., loc. cit. 294; Gilman v. Hamilton, 16 Ill. 225; Krug v. Davis, 101 Ind. 75. The litigation or contest still goes on, and the power of the temporary administrator still remains unaffected by the varying fortunes or vicissitudes of the pending...