State v. Holtcamp

• Decision Date: 22 December 1917
• Docket Number: No. 20379.,20379.
• Parties: STATE ex rel. RIESMEYER v. HOLTCAMP, Probate Judge.
• Court: Missouri Supreme Court

200 S.W. 294

273 Mo. 124

STATE ex rel. RIESMEYER v. HOLTCAMP, Probate Judge.

No. 20379.

Supreme Court of Missouri. In Banc.

December 22, 1917.

Rehearing Denied January 19, 1918.

Mandamus by the State, on relation of Anna Riesmeyer, against Charles W. Holtcamp, as Judge of the Probate Court of the City of St. Louis. Alternative writ made peremptory.

D. J. O'Keefe and Rassieur, Kammerer & Rassieur, all of St. Louis, for relator. George B. Webster and Frumberg & Russell, all of St. Louis, for respondent.

BOND, J.

The facts admitted as set forth in our alternative writ of mandamus are these:

On October 23, 1916, Louis H. Haase, a St. Louisan, died intestate, leaving neither wife nor child. His heirs at law were Edward T. Haase, a brother, Anna Riesmeyer, a sister, and several nieces and nephews, minor children of a deceased brother and sister. He died possessed of considerable real estate, besides personalty of over $2,000.

In order to secure the appointment of her brother Edward T. Haase, as sole administrator of the estate of her brother Louis H. Haase, Anna Riesmeyer filed a waiver of her right to original letters of administration. The waiver of her right is as follows:

"Hon. Chas. W. Holtcamp, Judge of the Probate Court of the City of St. Louis:

"We, the undersigned persons entitled to administer on the estate of Louis H. Haase, late of the city of St. Louis, Mo., who died on the 23d day of October, 1916, hereby renounce our right to administer on the estate of said deceased, and request that letters of administration be issued to Edward T. Haase.

                              "[Signed] Mrs. G. Riesmeyer."
                

Upon the filing of this renunciation by Anna Riesmeyer, letters were issued to Edward T. Haase, who qualified as such administrator. But before the administration of the estate had been completed, on May 13, 1917, at 10 o'clock p. m., Edward T. Haase died. On May 14, 1917, about 9 o'clock in the morning, and as soon as the office of the clerk of the probate court was opened, Frank M. Slater, public administrator of the city of St. Louis, filed notice that he had taken charge of said estate of Louis H. Haase. This notice was filed without the consent or request of any of the heirs or creditors of the estate, and the public administrator neither took, nor made any attempt to take, into his custody or control any assets belonging to the estate.

Thereafter, on May 17, 1917, the relator herein, Anna Riesmeyer, filed her application for letters of administration de bonis non, together with a motion to remove the public administrator and revoke his authority to administer the estate. This motion was overruled, and the application by relator for letters was denied. Thereupon relator instituted this proceeding for a writ of mandamus directing Charles W. Holtcamp, judge of the probate court of the city of St. Louis, to issue letters of administration de bonis non to her.

II. The power of a supervising court to compel a judge of probate to appoint an administrator in accordance with the specific provisions of the statutes of this state, designating the persons and order in which they are entitled to appointment as such, is too well settled for controversy. State ex rel. v. Holtcamp, 267 Mo. 420, 185 S. W. 201; State ex rel. v. Fowler, 108 Mo. 470, 18 S. W. 968; Flick v. Schenk, 212 Mo. 275, 110 S. W. 1074; State ex rel. v. Holtcamp, 266 Mo. 347, 181 S. W. 1007.

The undisputed facts in this case show that the relator is the only surviving sister of Louis H. Haase, deceased; that her brother Edward T. Haase was appointed sole administrator upon the death of Louis H. Haase, upon the renunciation and request of relator. In the nature of things this renunciation could not divest her of any right of which she was not apprised and which was not then in existence. It was merely a waiver on her part with full knowledge of any right to be joined in the original administration of her deceased brother's estate. To that extent only did she waive any rights given her by the statute. A waiver can never be effective except by intention and with knowledge of the existence of the right or thing intended to be relinquished. Bishop on Contracts, § 792; Hayes v. Manning, 263 Mo. 45, 172 S. W. 897; Henderson v. Koenig, 192 Mo. 690, 714, 91 S. W. 88; Williams v. Railroad, 153 Mo. 519, 54 S. W. 689; Michigan Sav. & Loan Assn. v. Trust Co., 73 Mo. App. 161; Stiepel v. Ass'n, 55 Mo. App. 224.

At the time of the renunciation relied upon by respondent as a waiver on the part of...