State v. Miller

• Decision Date: 15 April 1920
• Docket Number: No. 20885.,20885.
• Citation: 221 S.W. 88
• Parties: STATE ex rel. JONES v. MILLER, Probate Judge.
• Court: Missouri Supreme Court

221 S.W. 88

STATE ex rel. JONES v. MILLER, Probate Judge.

No. 20885.

Supreme Court of Missouri, Division No. 1.

April 15, 1920.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Mandamus at the relation of Roscoe 3. Jones, executor of the will of Caroline Higginbotham, deceased, against J. P. Miller, Judge of Probate of Jefferson County, to compel respondent to grant an appeal. Peremptory writ granted, and respondent appeals, Appeal dismissed.

Albert Miller, of Hillsboro, and P. S. Terry, of Festus, for appellant.

H. B. Irwin, of De Soto, and Clyde Williams, of Hillsboro, for respondent.

BROWN, C.

This case is mandamus at the relation of Roscoe B. Jones, executor of the will of Caroline Higginbotham, deceased, against J. P. Miller, judge of probate of Jefferson county. It was instituted in the Jefferson circuit court to compel the judge of the probate court to grant an appeal to the circuit court from an order suspending the relator from his office of testamentary executor under said will, to which he had been duly appointed by letters testamentary issued by said probate court, had given bond for the performance of his duties in the sum of $150,000, and entered upon the discharge of such duties.

The testator died August 5, 1916. On August 18, 1916, Jones received letters testamentary as executor. On the 19th of the same month a petition was filed against him in the circuit court of said county contesting the will and asking said court to appoint an administrator or receiver to take charge of the estate and manage it under the control of said circuit court. On August 23 a petition was filed by contestants in the probate court alleging that they had filed their petition in the circuit court to contest the validity of the will, that this relator was the duly appointed, qualified, and acting executor of said will, and asking that his letters testamentary be suspended, and that the court grant letters of administration during the time of said contest to some other person.

On August 28 this relator filed his answer to said petition, denying its allegations and stating that no such contest was pending; that the petition filed in the circuit court was not filed in good faith to contest the will, but was filed for the sole purpose of removing this relator as executor and securing the appointment of some other person as administrator pendente lite of said estate; that the probate court had no jurisdiction in the premises because the petition in the circuit court asked for an administrator pendente lite or receiver to take care of said estate and administer it under the direction and control of the circuit court, and does not name all the necessary parties, either plaintiffs or defendants, and denying generally all other allegations. On the same day the said petitioner filed a general denial to this answer.

The probate court on the same day tried the issue so presented and made an order reciting the admission of the will to probate, its grant of letters testamentary to the relator, the institution and pendency of the contest, and suspending the letters so granted during such pendency, and also appointing Frank Diedrich administrator pendente lite with the will annexed. On the 30th of the same month, and at the same term, this relator made application for an appeal from said order to the circuit court, filing an affidavit therefor in due form, and asking that the amount of his appeal bond be fixed, all of which the probate court then refused,...