State v. Pratt

• Decision Date: 02 November 1914
• Docket Number: No. 11038.,11038.
• Parties: STATE ex rel. HARRINGTON v. PRATT, Probate Judge, et al.
• Court: Missouri Court of Appeals

170 S.W. 418

183 Mo. A. 209

STATE ex rel. HARRINGTON v. PRATT, Probate Judge, et al.

No. 11038.

Kansas City Court of Appeals. Missouri.

November 2, 1914.

1. PROHIBITION (§ 11) — NATURE OF REMEDY — EFFECT.

Prohibition will not lie to review the action of a probate judge in allowing certain claims against a decedent's estate on insufficient, improper, or no evidence, where he has jurisdiction of the parties and subject-matter and power to act.

2. PROHIBITION (§ 3) — SCOPE OF REMEDY.

Where a court has jurisdiction over the parties and subject-matter and is proceeding in the cause according to the course prescribed by law, errors, if any, in the construction of the pleadings, or in giving weight and probative effect to evidence which has no value, are reviewable only by appeal or writ of error and prohibition will not lie.

3. EXECUTORS AND ADMINISTRATORS (§ 236) — CLAIMS — HEARING — JURISDICTION.

Rev. St. 1909, § 194, authorizes a claimant against the estate of a decedent to exhibit his demands by serving on the administrator a notice in writing, and such claims shall be considered legally exhibited from the time of serving such notice, or a waiver thereof by the administrator. Section 203 requires the notice served on the administrator to state that the claim will be presented at the probate court for allowance at the next regular or adjourned term, and section 204 requires that it be served at the beginning of such regular or adjourned term of court. Section 205 provides that the administrator may appear in court or by writing waive the service of such notice. Held, that while an administrator may waive the service of notice in writing, such a waiver does not amount to a consent to an earlier hearing than that provided by law, and hence such waiver did not confer on the court jurisdiction to hear and allow the claim before the beginning of the next regular or adjourned term of court before it was filed.

Prohibition by the State, on relation of Frances Harrington, a minor, by Frank L. Harrington, her guardian and curator, against Arthur L. Pratt, Judge of the Probate Court of Linn County, Mo., and J. A. Mairs, as administrator of the estate of Helen Clora Harrington, deceased, and others. Writ granted.

Campbell & Ellison, of Kirksville, and E. O. Jones, of Edina, for plaintiff. A. W. Mullins, of Linneus, and E. B. Fields, of Browning, for defendants.

JOHNSON, J.

This is an original proceeding in prohibition. A preliminary writ was issued, and we appointed the Hon. B. R. Dysart of Macon county commissioner to take and report the evidence which, as reported, discloses the following facts: The relator, Frances Harrington, who appears by Frank L. Harrington, her father and legal guardian and curator, was the only child born of the marriage of her father and her mother, Helen Clora Harrington. Shortly after her birth in 1899, her father and mother were divorced, and her mother moved to St. Louis, where she resided until her death, which occurred in November, 1912. From infancy until after the death of her mother relator lived at Browning, Linn county, with her mother's parents, Dr. J. A. Mairs and his wife, Sallie A. Mairs. Some time after her mother's death relator went to live with her father, who resides in Kirksville and who was appointed her guardian and curator. Relator's mother left an estate, consisting of money and other personal property, of the total value of about $2,000, and Dr. Mairs was appointed administrator of the estate by the probate court of Linn county. On January 29, 1913, Sallie A. Mairs exhibited to her husband, as such administrator, a demand against the estate in the sum of $1,706.65. Of this sum $1,425 appeared as money loaned by the claimant to her daughter at various times from July 4, 1910, to September 8, 1911, and $301.65 as money advanced for funeral expenses. Dr. Mairs waived service of notice of the presentment of the demand, and on the following day Mrs. Mairs and her witnesses went to the probate court, which was then in session at Linneus, to present the claim and procure its allowance. Dr. Mairs did not accompany them, but remained at Browning. On finding that the claimant was the wife of the administrator the court appointed Fred. W. Powers an attorney "to defend against such claim." Mr. Powers was notified by telephone, and appeared in court a few moments after his appointment. He offered no objections to an immediate hearing of the claim, and assisted in the interrogation of the witnesses introduced by Mrs. Mairs. No evidence to sustain the claim for funeral expenses was offered. In support of the claim that she had repeatedly sent money to her daughter with the understanding that it would be repaid, the claimant introduced two bankers of Browning, who testified that Mrs. Mairs had frequently bought drafts at their respective banks and sent them to her daughter. The canceled drafts, bearing the daughter's indorsement, were produced and received in evidence, but it does not appear that any legal evidence was offered to show that these remittances from mother to daughter were loans and not gifts or payments. Following the hearing, and on the same day, the court entered the following judgment:

"Now at this day comes Sallie A. Mairs and presents demand founded on account for cash furnished deceased from February 4, 1910, to August 24, 1912, to the amount of $1,425 and funeral expenses to the amount of $301.25, and, said demand being verified by the affidavit of claimant, and notice of the presentation of same for allowance having been waived by the administrator, and the matter of the claim coming on for hearing and determination, and it appearing to the court that the claimant is the wife of the administrator, the court doth appoint Fred. W. Powers to defend against such claim; and, all of the parties answering ready for trial, the claimant makes proof of her demand, and thereupon the court doth allow the sum of $1,726.25 in favor of claimant, Sallie A. Mairs, and against the estate of Helen Clora Harrington, deceased, with interest from this date at the rate of 6 per cent. per annum and costs; and, the sum of $301.05 being for funeral expenses of deceased, that amount, to wit, $301.05, is assigned to the first class of demands, and the remainder of the amount allowed, to wit, $1,425, is assigned to the fifth class of demands."

No notice of the demand or...