State v. Holtcamp

• Decision Date: 14 November 1912
• Citation: 151 S.W. 153,245 Mo. 655
• Parties: STATE ex rel. DEEMS et al. v. HOLTCAMP, Judge, et al.
• Court: Missouri Supreme Court

151 S.W. 153

245 Mo. 655

STATE ex rel. DEEMS et al. v. HOLTCAMP, Judge, et al.

Supreme Court of Missouri.

November 14, 1912.

1. PROHIBITION (§ 10) — SCOPE OF REMEDY — POWER OF SUPREME COURT.

The Supreme Court has power to prevent all inferior courts from exceeding their jurisdiction by a writ of prohibition.

2. COURTS (§ 2) — JURISDICTION — GROUNDS — IN GENERAL.

To acquire jurisdiction, a court must possess the power to determine the general class of cases to which the one it is attempting to adjudicate belongs; and, in a case where its judgment will affect the title to particular property, it is generally necessary that such property be situated within its territorial jurisdiction, and it must, by its process or by voluntary appearance, acquire jurisdiction over the persons whose rights will be affected by its decree.

3. COURTS (§ 198) — PROBATE JURISDICTION — CONSTITUTIONAL PROVISIONS.

Under the express provision of Const. art. 6, § 34, a probate court has jurisdiction over the sale of land by administrators within its territorial jurisdiction.

4. EXECUTORS AND ADMINISTRATORS (§ 337) — SALE BY ADMINISTRATOR — STATUTORY PROVISIONS — NOTICE.

An administrator selling incumbered real estate to pay his own unprobated claim or the debts due to incumbrancers must proceed under Rev. St. 1909, §§ 150, 151, by petition accompanied by his account and inventory of the estate and a list of debts remaining unpaid, and must give the notice required by section 152.

5. EVIDENCE (§ 5) — JUDICIAL NOTICE — INCUMBRANCES UPON PROPERTY.

Courts take judicial notice that a very large percentage of the lands of this commonwealth, and some of the most valuable thereof, are incumbered for some amount, either great or small.

6. EXECUTORS AND ADMINISTRATORS (§ 326) — SALE BY ORDER OF COURT — STATUTORY PROVISIONS.

Under Rev. St. 1909, §§ 147, 148, which authorize the sale of incumbered real estate in administration, even though there be no general creditors, it is only necessary that the probate court find that such sale will promote the interest of the estate — that is, of the parties entitled to it as heirs or devisees — and that it will not be prejudicial to creditors, the sale not being for the benefit of incumbrancers; and where there is no personal estate to redeem the incumbrances, or to be promoted, and the incumbered realty belongs to the heirs, unless necessary to sell it to pay an alleged debt to the administrator, and there is no showing that the land cannot be partitioned in kind among the heirs, but the administrator applies for a sale to prevent such partition and to consume in fees and commissions all the equities existing in favor of the heirs, the probate court is not justified in making an order of sale.

7. PROHIBITION (§ 11) — ADMINISTRATION PROCEEDINGS — SALE OF LAND.

Where a probate court possesses the power to determine for itself the propriety of making an order for the sale of incumbered realty in administration, it should not be prohibited

from exercising its statutory jurisdiction, since its error can be corrected on appeal.

8. CONSTITUTIONAL LAW (§ 277) — DUE PROCESS OF LAW — "PROPERTY" — EQUITY OF REDEMPTION.

An equity in incumbered real estate is "property" within Const. art. 2, § 30, providing that no person shall be deprived of property without due process of law.

9. CONSTITUTIONAL LAW (§ 309) — EXECUTORS AND ADMINISTRATORS (§ 337) — "DUE PROCESS OF LAW" — ADMINISTRATORS' SALE OF INCUMBERED REALTY — NOTICE TO HEIRS.

"Due process of law," as used in Const. art. 2, § 30, is construed to be reasonable notice and opportunity to be heard in defense of one's rights; and though Rev. St. 1909, §§ 147, 148, providing for a sale by order of court of incumbered real estate in administration, do not require any notice to the heirs, the law will imply that notice was intended, and require that notice be given; and hence the court's order for the sale of such estate, without notice to heirs having an equity therein — regarded as property — is a deprivation of property without due process of law.

10. APPEARANCE (§ 9) — SALE OF LAND BY ORDER OF PROBATE COURT — SPECIAL APPEARANCE BY HEIRS.

Where heirs to incumbered real estate in administration appeared specially in the probate court for the sole purpose of objecting to its jurisdiction to order a sale on the administrator's application, and took no part in the proceedings resulting in the court's order of a sale, the court acquired no jurisdiction over them.

Ferriss and Kennish, JJ., dissenting.

In Banc. Prohibition by the State on the relation of Harry W. Deems and another against Charles W. Holtcamp, Judge of the Probate Court in and for the City of St. Louis, and Augustus Ross, administrator of the estate of Anna Deems Ross, deceased. Preliminary writ of prohibition made absolute.

Relators' petition for a writ of prohibition against the respondents on the ground that the probate court is proceeding without jurisdiction in the matter related below. The following facts appear from the petition and return thereto: Anna Deems Ross died intestate, without issue, in the city of St. Louis in April, 1909. At the time of her death she owned five parcels of real estate in that city, each one of which was incumbered by a deed of trust to secure certain promissory notes executed by her jointly with her husband. In April, 1909, letters of administration on her estate were granted to Augustus Ross, her husband. She left as collateral heirs the relators, Harry W. Deems and Laura V. Deems. Subsequently Augustus Ross presented a claim for about $3,000 against the estate which, after due hearing, was disallowed in October, 1911, and an appeal taken to the circuit court, where it is now pending. No other claims are shown to have existed against the estate. On June 30, 1911, the respondent judge, on a petition filed by the administrator, entered an order of record directing the administrator to take possession and manage said real estate, which order was made under the provisions of the act of 1911, known as section 139a, Laws of 1911, p. 80, the same being an amendment to article 6 of chapter 2, R. S. 1909, and which reads as follows: "Whenever letters of administration or testamentary shall have been granted on an estate, and it shall appear to the court or judge in vacation that the decedent died possessed of real estate in the state, and his heirs or legatees have failed to take charge of same, or the identity or whereabouts of such heirs or legatees are unknown, then the court or judge in vacation may on its or his own motion, or that of any party interested, direct the administrator or executor in charge of said estate, to take charge and manage the real estate, until such time as such heirs or legatees shall appear and petition the court to turn the management of said real estate over to them, or until the same shall escheat to the state, as is provided by the `escheat act.'"

The administrator is in charge of the real estate under said order. On the 10th day of July, 1911, said administrator, while his claim for allowance was pending in the probate court, filed in said court a petition in which he alleged that all of said real estate was incumbered with deeds of trust as aforesaid, and also with liens for taxes, and that the holders of the deeds of trust were threatening to sell under same; that, if the equities should be sold under favorable conditions, they would bring an amount considerably larger than could be realized at a sale under the deeds of trust; that his claim for $3,004.28 was pending in said probate court; and that the personal assets were practically valueless — the petition concluding with the following prayer: "Inasmuch as there are no assets to redeem such real estate, the petitioner prays that the court shall make an order that all the right, title and interest of the decedent and her estate to such property, or so much thereof as the court shall determine, be sold at private or public sale, as the court in its judgment may determine." This petition was not accompanied by an account of the administration, nor by a list of debts due to and owing by deceased and remaining unpaid, nor was notice given to the heirs, relators herein, as required by section 152, R. S. 1909.

Thereafter, on July 11, 1911, these relators appeared specially in the probate court and filed the following motion verified by affidavit: "Now at this day come Harry W. Deems and Mrs. Laura V. Deems, and, appearing for the purpose of this motion only, give the court to be informed and understand that they are heirs at law of Anna Deems Ross, deceased, and as such heirs are entitled to distributive shares of the estate of said Anna Deems Ross. That on Monday, January 10, 1911, one Augustus Ross, administrator of the estate of Anna Deems Ross, deceased, applied to this honorable court for an order to sell certain real estate in his petition described, and that such petition was not accompanied by a true account of said Augustus Ross' administration nor accompanied by a list of debts due to and by the deceased and remaining unpaid, or an inventory of the remaining personal property, together with its appraised value, or of any other assets in his hands. That no notice has been given to the persons interested in said estate, and particularly this petitioner, of the filing of such petition, nor have they been given until the first day of the next term of this court to show cause why such an order should not be made, nor has any such notice been published for four weeks in any newspaper in the city of St. Louis, nor has such notice been published by 10 handbills placed in 10 public places in said city. Wherefore petitioners say that this court is without jurisdiction to hear and determine the petition of said Augustus Ross, filed as aforesaid, and pray that the same may be dismissed." This motion was continued by the court to the next September term, at which term the...