State v. Kelso, 21118.

• Decision Date: 07 February 1949
• Docket Number: No. 21118.,21118.
• Citation: 217 S.W.2d 596
• Parties: STATE ex rel. COUCH v. KELSO.
• Court: Missouri Court of Appeals

217 S.W.2d 596

STATE ex rel. COUCH v. KELSO.

No. 21118.

Kansas City Court of Appeals. Missouri.

February 7, 1949.

Appeal from Circuit Court, Vernon County; O. O. Brown, Judge.

Not to be published in State Reports.

Mandamus proceeding by the State of Missouri on relation of Clyde V. Couch against H. A. Kelso to compel defendant as judge of the probate court to cancel and set aside the appointment of M. A. Craighead as administrator of the estate of Dona Lee Hale, deceased, and to appoint relator as administrator. From a judgment granting a writ, respondent appeals.

Judgment affirmed.

A. E. Elliott, of Nevada, for appellant.

Ewing, Ewing & Ewing, of Nevada, for respondent.

BOYER, Commissioner.

This is an appeal by the probate judge of Vernon County from a judgment of the circuit court granting a writ of mandamus on application of the relator, Clyde V. Couch. The judgment of the circuit court ordered the probate court to cancel and set aside the appointment of M. A. Craighead as administrator of the estate of Dona Lee Hale, deceased, and to appoint relator as administrator. The probate judge has duly appealed from that judgment and seeks reversal on the grounds (1) that the court erred in its finding and judgment that the petition for a writ of mandamus stated a claim upon which relief could be granted against the probate judge; (2) that the court erred in its finding and judgment that the probate judge abused his judicial discretion by refusing to appoint Clyde V. Couch administrator of the estate of Dona Lee Hale, deceased; (3) that the court erred in ordering, by writ of mandamus, the probate judge to appoint Clyde V. Couch administrator of said estate; and (4) that the appointment of the administrator was within the judicial discretion of the probate court, and the circuit court had no authority to direct by mandamus the exercise of the judicial discretion of the probate judge in making such appointment.

Under Points and Authorities there is out a single point presented in these words: "Mandamus is not available to regulate the probate judge in the exercise of his judicial discretion."

The petition states that relator is a citizen of Vernon County, Missouri; that H. A. Kelso is and was at all times mentioned the duly elected, qualified and acting judge of the probate court in and for said county. It is further alleged that Dona Lee Hale, a widow, died intestate a resident of Vernon County on the 9th day of December 1947, leaving as her heirs this relator, a first cousin; nineteen other first cousins, and five second cousins, the nearest living relatives; that all of such heirs are nonresidents of the State of Missouri, except relator, Bertha Harkrader, Glessner G. Wiles and Edna Hall, all of Vernon County; Thelma I. Lynn an W. E. Maris, both of Jackson County, and Alma Pollard of St. Louis; that the probate judge, on the 16th day of December 1947, appointed M. A. Craighead administrator of the estate of the deceased; that at such time none of the resident heirs of said deceased had made application for appointment of an administrator or renounced their right to administer on said estate; that thereafter on December 27, 1947, relator joined by Glessner G. Wiles and Bertha Harkrader duly filed a motion in the probate court to vacate and rescind the appointment of said M. A. Craighead as administrator of said estate on the grounds that such appointment was void and without the jurisdiction of said court under the statutes of the state; that on the same day relator duly filed affidavit of heirs and application for his appointment as administrator of the estate of said Dona Lee Hale, deceased, and that he is one of those persons entitled to distribution in said estate, and at said time the said Glessner G. Wiles and Bertha Harkrader, resident heirs of said deceased, filed their renunciation of right to administer and requested the appointment of relator as said administrator. It was further alleged that at said time the probate judge stated he would not appoint relator as administrator of said estate. Thereupon, relator asked for a hearing on the motion to vacate the appointment made and upon his application for appointment as administrator; that a hearing was set for January 16, 1948; that on the day set for the hearing the probate judge announced he was revoking the appointment of M. A. Craighead made December 16, 1947; that he would not appoint relator, and was reappointing M. A. Craighead, but that he would hear testimony on the application of relator for his appointment. The petition further alleges that at said hearing testimony was introduced on behalf of relator showing his competency and suitability to act as administrator; that only one person, Edna Hall, objected to his appointment, and that was for personal reasons.

The petition further alleges that at the conclusion of said hearing the probate judge rejected relator's application for appointment as administrator and reappointed M. A. Craighead, the public administrator, to act as administrator of said estate. The petition further alleges that the order and judgment of said probate court made on January 16, 1948, rejecting and refusing to appoint relator as administrator, was arbitrary and an abuse of discretion under the laws of the State of Missouri.

Upon the issuance of the writ requested by relator the probate judge made return in which he moved the court to quash the writ. The principal reasons assigned are that the writ seeks to enforce a judicial discretion by mandamus; that the probate court had exclusive jurisdiction of the estate of Dona Lee Hale, and the appointment of the administrator thereof; that relator made application for appointment as administrator and the court, after a hearing found that he was not a competent and suitable person to act as such administrator; that the finding and judgment of said court was the exercise of a judicial discretion and cannot be interfered with by a writ of mandamus.

In the trial of the mandamus case in the circuit court the evidence consisted of a transcript of the testimony and the proceedings in the probate court, together with the testimony of other witnesses. The following facts appear from the evidence.

The files and records of the probate court offered in evidence show that an application for letters of administration upon the estate of Dona Lee Hale was made by M. A. Craighead, public administrator, on December 15, 1947. The affidavit attached to the application recites that the deceased left no heirs within the degree of relationship entitling them to priority of appointment. On the following day without notice, citation or hearing, Judge Kelso appointed the public administrator as administrator of Mrs. Hale's estate. On December 27, 1947, relator filed his affidavit as to heirship and a request for appointment as administrator. Two other resident heirs in Vernon County filed their written renunciation and asked appointment of Mr. Couch. On the same day, and without a hearing upon the application, the probate judge announced that he would not appoint relator. At the time of the hearing in the probate court it had been ascertained that there were five known heirs living in Missouri; namely, Edna Hall, Bertha Harkrader, Glessner Wiles, Thelma I. Lynn, and Clyde V. Couch. Thelma I. Lynn had not renounced and had not been cited to appear. No request for appointment was filed by any other heir. Edna Hall was the only heir opposing the appointment of Mr. Couch as administrator. There was evidence that there was no heir of closer relationship than first cousin, and that Mr. Couch belonged to that class of heirs who were entitled to priority of administration.

Mr. Couch testified that he was a farmer; that he owned 160 acres of land free of encumbrance; that he had been township assessor for sixteen years and had been on the AAA board for a number of years, and was vice-chairman for awhile; that he was collector for Farm Security for part of a year. A banker testified that Mr. Couch was of good character and a reliable man. An insurance agent testified that he was prepared and authorized to write any surety bond required of Mr. Couch if he were appointed administrator. There was no testimony attacking the competency or suitability of Mr. Couch as administrator.

Mrs. Hall opposed the appointment of Mr. Couch, according to her testimony, because of personal enmity between them. Her attitude was developed in this fashion upon examination by Judge Kelso himself:

"Q. Tell us, Mrs. Hall, what you have against the appointment of Mr. Couch as administrator of this estate? A. It is just as I said. He was supposed to come over there to her house and he didn't come and I wondered if this other came up if he would act in the same way. As near as I can tell, he won't do anything for any of us.

"Q. You have no other reasons? A. They would be all against me. I know he wouldn't be for me in anything I say or would want.

"Q. Is there anything you want to tell the Court? When you say he wouldn't be for you, you mean he would resist it pretty strongly if you asked anything from the estate? You mean you think he would resist a claim? A. I think he would resist any claim my son or I had.

"Q. You don't think he would be for you? A. He wouldn't be for me in any way."

Counsel for Mr. Couch offered to prove that Mrs. Hall's son Willis and his wife had some claim or would assert some kind of claim against the estate. They were called as witnesses, but upon objection the probate judge did not permit them to testify. Counsel for Mr. Couch made this offer in his behalf: "Mr. Couch now offers that the record show the withdrawal of his application and consents to the appointment of Mr. Craighead if Mr. Willis Hall and his wife will state that they do not have and will not have any claim against the estate or property of Dona Lee Hale."

At the hearing, Mr. Couch and another witness identified a paper as...