State v. Hull

• Decision Date: 27 January 1941
• Docket Number: No. 19812.,19812.
• Citation: 147 S.W.2d 214
• Parties: STATE ex rel. SMITH v. HULL, Judge, et al.
• Court: Missouri Court of Appeals

147 S.W.2d 214

STATE ex rel. SMITH v. HULL, Judge, et al.

No. 19812.

Kansas City Court of Appeals. Missouri.

January 27, 1941.

"Not to be published in State Reports."

Original mandamus proceeding by the State of Missouri, at the relation of Dorrit Smith, against Milton J. Hull, Judge of the Probate Court of Nodaway County, Missouri, and Ellis Beavers, Judge of the Circuit Court of Nodaway County, Missouri, to compel the respondents to appoint the relatrix sole administratrix de bonis non with will annexed of the estate of Lewis J. Neal, deceased.

Peremptory writ refused.

John Muster, of St. Joseph, and Livengood & Weightman, of Maryville, for relatrix.

J. Dorr Ewing, Charles R. Bell, and Wright & Ford, all of Maryville, for respondents.

BLAND, Judge.

This is an original proceeding in mandamus wherein relatrix seeks to compel the respondents, the Honorable Ellis Beavers, Judge of the Circuit Court of Nodaway County, and the Honorable Milton J. Hull, Judge of the Probate Court of that County, to appoint her sole administratrix, de bonis non, with the will annexed of the estate of Lewis J. Neal, deceased.

The facts as established by the agreed statement of facts and admitted by the pleadings, show that Lewis J. Neal died testate on February 4, 1915, while a resident of Nodaway County, leaving surviving him, his wife, Nancy Neal, and ten children. By his will he devised his real estate to his widow for and during her life, it then to be sold and divided among the children. The will was admitted to probate in the Probate Court of Nodaway County, and Nancy Neal duly qualified as executrix and fully administered the estate and was duly discharged as such executrix. She died on December 3rd, 1938. At the time of her death the only asset remaining in the estate of Lewis J. Neal, deceased, was a farm located in Nodaway County, and at that time all of the children were of age and were living in this state with the exception of three. It is not denied that the appointment of an administrator d.b.n.c. t.a. is the proper procedure in order that the farm may be sold under the provisions of the will, and that the proceeds of the sale will become personalty to be distributed by the administrator. See, also, Rawlings v. Rawlings, 332 Mo. 503, 58 S.W.2d 735.

On the 27th day of December 1938, and within thirty days from the date of the death of Nancy Neal, the Probate Court of Nodaway County appointed W. E. Minton and Chilton Robinson, Administrators d.b.n.c.t.a. of the estate of Lewis J. Neal, deceased. The appointment was made upon their application. No renunciation of their right to administer upon the estate of the said Lewis J. Neal was filed in writing by any of the said children and no notice was given to any of them of the application.

On the 5th day of February 1940, relatrix, together with five of the six other children of Lewis J. Neal, who were residents of this state, together with two other children, who were non-residents of this state, filed an application in the Probate Court of Nodaway County, the substance of which was to require the court to revoke the letters of administration d.b.n.c. t.a. theretofore issued to Hinton and Robinson.

On the 15th day of February 1940, relatrix filed her application for letters of administration d.b.n.c.t.a. of the estate of Lewis J. Neal, deceased and simultaneously therewith filed a written renunciation of all of the heirs residing in Missouri, except one, Ethel Neal, who was served with a citation.

On February 16, 1940, Hinton and Robinson filed an affidavit in the Probate Court, in the proceeding for their removal, stating the judge thereof to be a material witness in their behalf and that he was in possession of knowledge and facts competent and material in the action for their removal and prayed that the venue of the cause be changed to the Circuit Court of Nodaway County. Pursuant to this affidavit the Probate Court of Nodaway County granted the change and caused a transcript of the proceedings concerning the application for the removal of Hinton and Robinson, and the application of relatrix for letters of administration of the estate of Lewis J. Neal, deceased, to be filed in the office of the Clerk of the Circuit Court of Nodaway County.

The matter was duly taken up by the Circuit Court of Nodaway County, presided over by the respondent, Beavers, as Judge. Seven of the children (not including Ethel Neal) took the witness stand and requested the removal of Hinton and Robinson and the appointment of relatrix as administrator d.b.n.c.t.a. On the 19th day of April 1940, an order was made overruling the application for the removal of Hinton and Robinson and the application of relatrix for letters of administration.

Subsequent to the death of Lewis J. Neal and on the 19th day of April 1934, relatrix was duly adjudged a bankrupt by the United States District Court and her interest in said farm was on the 15th day of May, 1934, sold by the trustee in bankruptcy, under the order of said court, and said interest was purchased by George. W. Neal, one of the children of the said Lewis J. Neal, deceased. Subsequently, and on the 19th day of July, 1934, said George W. Neal, executed a deed of trust in favor of the Nodaway Valley Bank as beneficiary covering all of his interest in the estate of Lewis J. Neal, including that of relatrix, which he had acquired, to secure a note in the sum of $2400.00, given to the bank. Thereafter, and on the 17th day of September 1938, the said George W. Neal executed an assignment in favor of the said bank of his interest in the estate of Lewis J. Neal. Said interest so assigned to the bank is now its property and Chilton Robinson, one of the persons appointed administrator d.b.n.c.t.a. of the estate of Lewis J. Neal, was at the time of his appointment and is now the president of said bank.

Subsequent to the death of the said Lewis J. Neal and on the 5th day of November, 1930, Ethel Hinton, one of the children of Lewis J. Neal, deceased, executed a deed of trust on her interest in the estate of Lewis J. Neal, deceased, to secure a note in the sum of $1500.00, in favor of W. E. Hinton, one of the persons appointed by the Probate Court administrator d.b.n.c.t.a. of the estate of Lewis J. Neal, deceased. Her husband joined in said deed of trust. This note has long since matured and remains unpaid. W. E. Hinton is still the owner and holder of the note.

There is nothing in the record to show fully the grounds for the appointment of Hinton and Robinson, as administrators d.b.n.c.t.a. of the estate of Lewis J. Neal. The order wherein they were appointed merely reciting that they were "proper and suitable persons" to administer. The record also fails to show affirmatively the reason for the refusal of the Circuit Court to appoint the relatrix as administratrix. There was no finding for or against her except by inference on the question as to whether she was a competent and suitable person to administer the remaining estate.

The return pleads that the affidavit of Hinton and Robinson disqualified the Probate Court only as to the matter of hearing the application for their removal and that the Probate Court has never passed upon relatrix's qualification to serve as administratrix.

Section 7, R.S.1929, Mo.St.Ann. § 7, p. 9, provides: "Letters of administration shall be granted: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation shall believe will best manage and preserve the estate: Provided, however, if the court, or judge in vacation, should believe no one of such persons entitled to administer is a competent and suitable person, some other person than those above mentioned may be appointed."

Section 8, R.S.1929, Mo.St.Ann. § 8, p. 11, provides that if no person who is entitled to preference under section 7 applies within 30 days after the death of deceased, or appears and qualifies for administration within the appointed time (not less than five days) in a citation thereafter issued, letters may be granted to any person deemed most suitable.

Section 9, R.S.1929, Mo.St.Ann. § 9, p. 12, provides: "Letters testamentary and of administration may at any time be granted to any person deemed suitable, if the person or persons entitled to preference file their renunciation thereof, in writing, with the clerk of the court; or if proof be made that no such persons reside in this state."

Section 10, R.S.1929, Mo.St.Ann. § 10, p. 12, provides that letters testamentary and of administration shall not be granted to a non-resident of this state.

Section 47, R.S.1929, Mo.St.Ann. § 47, p. 29, provides: "If all the executors or administrators of an estate die or resign, or their letters be revoked, or, after final settlement of an estate is had and the executor or administrator has been discharged, unadministered assets of the estate be discovered after such final discharge and there are unpaid allowed demands against said estate, in cases not otherwise provided for, letters of administration of the goods remaining unadministered shall be granted to those to whom administration would have been granted if the original letters had not been obtained; and the administrator shall perform the like duties and incur the like liabilities as the former executors or administrators."

Section 6, R. S.1929, Mo.St.Ann. § 6, p. 8, provides that no judge or clerk of any probate court, and no male or female person under 21 years of age, or of unsound mind, shall be executor or administrator.

The provisions of the statute fixing the order of preference in which letters of administration shall be granted, are mandatory and the Probate Court has no jurisdiction to appoint an administrator in violation of their terms and, if he does so, the appointment is void. State ex rel. v. Henderson, 230 Mo.App. 1, 88 S.W.2d 893; In re Wilson's Estate, Mo.App., 16...