The State ex rel. Hamilton v. Guinotte

• Decision Date: 04 June 1900
• Citation: 57 S.W. 281,156 Mo. 513
• Parties: THE STATE ex rel. HAMILTON v. GUINOTTE, Probate Judge
• Court: Missouri Supreme Court

57 S.W. 281

156 Mo. 513

THE STATE ex rel. HAMILTON v. GUINOTTE, Probate Judge

Supreme Court of Missouri

June 4, 1900

Motion to quash order of probate court granted.

Sam'l W. Hilt and Chas. C. Madison for relator.

The duties of an administrator pending suit, commence from the date of the order of appointment and if the decree in the action is appealed from, do not cease until the appeal has been disposed of. The appeal operates as an extension of the suit. Taylor v. Taylor, 6 Probate Division, 29; Dunham v. Dunham, 16 Gray 577; Werner's Am. Law of Administrations (2 Ed.), sec. 181; Estate of James Robinson, 12 Phila. (Pa.) 14. The appeal transfers the cause to the Supreme Court and it is still as much pending as before judgment in the circuit court. After an appeal is taken in a case the cause must be regarded as one pending in the court to which the appeal is taken. Foster v Rucker, 26 Mo. 494. The question of supersedeas should not and can not be legitimately injected or infused into this case for the reason there is nothing that can be superseded unless it is the costs and they have been paid by the relator. Cash v. Lust, 142 Mo. 632.

Flournoy & Flournoy for respondent.

SHERWOOD J. Gantt, C. J., and Burgess, JJ., concur, except as to so much of paragraph 4 as holds that by the granting of the writ "the discretionary stage" has passed. Brace, J concurs except as to the 4th paragraph, but agrees that certiorari lies in this case. Robinson and Valliant, JJ., express their views in separate opinion. Marshall, J., concurs in toto. VALLIANT, J., dissenting. Robinson, J., concurs in views of Judge VALLIANT.

OPINION

In Banc

Certiorari.

SHERWOOD J.

The will of Thomas G. Hall was admitted to probate in the probate court of Jackson county, and letters testamentary without requirement of bond issued to his daughter and executrix, Maggie McCune. These things being done, relator brought suit in the circuit court of Jackson county to contest the will. A change of venue transferred this cause to the Cass Circuit Court. Pending this suit, the probate court appointed an administrator pendente lite of Hall's estate, and ordered the executrix to turn over the estate to him, which was done. The will contest in Cass county resulted in establishing the paper writing as the last will of Hall, and thereupon relator paid the costs, and appealed to this court but gave no bond; that appeal is still pending. Upon being advised of the result of the will contest in the Cass Circuit Court, the executrix applied to be reinstated in her former position; her application was granted and relator ordered to turn over the estate to her. To prevent execution of this order certiorari is prayed and a motion to quash that order interposed.

Various sections of the statute are relied on by the adverse litigants to this record, both to uphold as well as to overthrow the action of the probate court, which sections will now be quoted.

Section 13, Revised Statutes 1889, provides: "If the validity of a will be contested, or the executor be a minor, or absent from the State, letters of administration shall be granted during the time of such contest, minority or absence to some other person, who shall take charge of the property and administer the same according to law, under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator when qualified to act."

Sections 8888 and 8889, Ibid, are the following:

"If any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and, by petition to the circuit court of the county, contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court.

"The verdict of the jury or the finding and judgment of the court shall be final, saving to the court the right of granting a new trial, as in other cases, and to either party an appeal, in matters of law, to the Supreme Court or to the St. Louis and Kansas City Courts of Appeal."

The facts already related and the statutory provisions quoted give rise to these questions:

First, what is meant by the expression, "during the time of such contest?"

Second, what effect did the suit brought in the circuit court to contest the will have upon the jurisdiction of the probate court?

Third, what effect upon the jurisdiction of the probate court did the appeal have which was taken from the circuit court to this court?

1. The initial question above propounded, is as comprehensive, so far as concerns the borders and boundaries of this case, as the two commandments on which hang "all the law and the prophets." It has been determined of words similar to those here litigated that "during the term," as used in the Constitution of California, means "during the time or period for which the officer is elected." [People ex rel. v. Burbank, 12 Cal. 378.] In that case the Constitution of that State provided that "district judges shall not be eligible to any other office during the terms for which they shall have been elected; and further, that their compensation shall not be increased or diminished during that term."

In discussing these provisions the court say: "If A is elected district judge, and enters upon the office, or accepts it for a day, he is disqualified for other office during the whole period of six years; and so, after his election, it would not be competent for the legislature to change the compensation." And they say their only difficulty in construing these provisions, "is the difficulty of making clearer what the Constitution has made palpable."

And it has been determined also, that the legal import of the words "during coverture," as explained by Lord Coke (vol. 1, p. 149), mean "while the marriage lasts." [State v. Fry, 4 Mo. 120.]

In section 13, supra, are grouped together three classes of cases authorizing and commanding the appointment of an administrator pendente lite, to wit:

1st, "during the time of such contest."

2d, "during the time of such minority."

3d, "during the time of such absence."

Concerning an appointment durante absentia, it has been ruled that such administration is at an end the moment the absentee returns. [Schouler's Extrs. & Admrs. (2 Ed.), sec. 133.]

So that, if it be error to revoke the appointment of an administrator pendente lite while the executor remains a minor, or while he remains absent from the State, it must be equally error to revoke such an appointment while the contest over the will is still in progress. No reason can be urged why revocation of letters granted during minority or absence should not occur during those periods, that should not apply with equal force to letters granted "during the time of such contest." In the old law, the words were "during such contest." [R. S. Laws of 1825, p. 94, sec. 6.] At the revision of 1835, the words "the time of" were added (R. S. 1835, p. 42, sec. 9), as if to give emphasis to the other words of the section by those which were subsequently added.

The administrator thus appointed "during the time of such contest," is commonly called an administrator pendente lite, which means an administrator "during litigation." [Whart. Law Lexicon (7 Ed.), p. 615.]

Now, "lis" means "a suit, action, controversy or dispute." [Ib., p. 487.] And "dispute is a conflict or contest." [Standard Dict., p. 530.] "Controversy is a disputed question; a suit at law." [Ibid., p. 409.] And "lis pendens" is "a pending suit." [Whart. Law Lexicon (7 Ed.), p. 487.]

So that, as long as the lis continues pendens, so long does the administrator appointed during litigation, remain a provisional administrator. And the pendens of the lis is not disturbed nor in any manner affected by the fact of an appeal taken from the circuit court to this court. [Real Estate Sav. Inst. v. Collonious, 63 Mo. 290; Gilman v. Hamilton, 16 Ill. 225; Krug v. Davis, 101 Ind. 75.] The litigation or contest still goes on; and the power of the temporary administrator still remains unaffected by the varying fortunes or vicissitudes of the pending controversy.

2. These remarks bring into view the second interrogatory propounded: What effect did the suit brought in the circuit court to contest the will, have upon the jurisdiction of the probate court?

Upon that point we have had several decisions; the first Dickey v. Malechi, 6 Mo. 177, wherein it was ruled that when a contest about a will was instituted in the circuit court, the jurisdiction of such court was not original, but derivative, and the result of the suit thus brought was to transfer the subject-matter from the probate court to the circuit court for adjudication in the latter, as if on appeal. To the same point see Benoist v. Murrin, 48 Mo. 48; Tapley v. McPike, 50 Mo. 589; Hughes v. Burriss, 85 Mo. 660. This being the case, the probate court indubitably lost jurisdiction over the cause and therefore had, at the time it assumed to act, no power to revoke the letters granted to the provisional administrator. But it had no jurisdiction to do this for the equally cogent reason that, the jurisdiction of the circuit court so far as touched the validity of the will, being not original, but derivative, its attitude toward the probate court was that of an appellate court, and consequently the result of the will contest in the circuit court could not reach the probate court, except through the certificate of the former, to the latter court. No such certificate appears in the record. The fact that a transcript of what...