The State ex rel. Smith v. Williams

• Citation: 275 S.W. 534,310 Mo. 267
• Decision Date: 25 August 1925
• Docket Number: 26113
• Parties: THE STATE ex rel. ALBERT F. SMITH, Administrator Pendente Lite of Estate of MELVILLE SMITH, et al. v. B. B. WILLIAMS, Judge of Probate Court
• Court: Missouri Supreme Court

275 S.W. 534

310 Mo. 267

THE STATE ex rel. ALBERT F. SMITH, Administrator Pendente Lite of Estate of MELVILLE SMITH, et al. v. B. B. WILLIAMS, Judge of Probate Court

No. 26113

Supreme Court of Missouri

August 25, 1925

Writ quashed.

Joseph Park, Franklin & Van Cleve and Shelton & Shelton for relators.

(1) When a will contest is filed it operates to oust the executor ipso facto, and an appeal will not lie from the order of the probate court appointing an administrator pendente lite. Such appointment is not a "final decision." Sec. 13, R. S. 1919; State ex rel Hamilton v. Guinott, 156 Mo. 512; Dively, Admr Pendente Lite, 51 Mo. 193; Lamb, Admr. Pendente Lite, 56 Mo. 420; Soulard Estate, 141 Mo. 642; Carroll v. Reid, 158 Mo. 310; McIlwrath v Hollander, 73 Mo. 105; State ex rel. v Moehlenkamp, 133 Mo. 134; State ex rel. v. Guinott, 156 Mo. 513; Johnson v. Brewn, 277 Mo. 397. (2) The remedy by certiorari is not restricted to cases where appeal and error will not lie. State ex rel. v. Guinott, 156 Mo. 513; State ex rel. v. Johnson, 138 Mo.App. 306; Carroll v. Reid, 158 Mo.App. 319; State ex rel. v. Hall, 282 Mo.App. 425. (3) The term "final decision" in clause 15, Sec. 289, R. S. 1919, does not authorize an appeal from an order interlocutory in its nature appointing a temporary administrator. 3 Words & Phrases, p. 2773; 2 Words & Phrases (2 Ed.) p. 537. (4) The term "judgments and orders," as used in subdivision fourth of Sec. 2436, R. S. 1919, means final judgments and orders, else every order however insignificant would be appealable.

E. O. Jones, John M. Campbell and M. D. Campbell for W. Arthur Smith.

(1) Certiorari is a remedy, narrow in scope and inflexible in its character, and cannot be made to serve the purpose of an appeal or writ of error. State v. Dawson, 225 S.W. 97. It is not a writ of right, but its issuance is within the court's discretion. State v. Hall, 282 Mo. 425. This court will not issue the writ against a probate court unless such inferior court has exceeded its jurisdiction or acted in excess of its jurisdiction. (2) Counsel in argument seem to put the case to this court by saying: "Will an appeal lie from an order of the probate court appointing an administrator pendente lite after a will contest has been filed?" Counsel argued the case at considerable length and concluded with the delicate statement that they have refrained from alluding to the recent cases, Leahy v. Campbell, 274 Mo. 361, and Leahy v. Mercantile Tr. Co., 247 S.W. 396. Counsel also make the flattering suggestion that the question is "ably discussed" but not decided. In the case last mentioned, among other things, is said, "We do, however, contend that we have statutes which justify the probate court of St. Louis in granting the appeal from its order and judgment, suspending the letters of administration granted to the Mercantile Trust Company." The question under consideration is so fully and ably discussed in the Leahy case, supra, that we fell that further discussion is unnecessary.

Graves, C. J. All concur, except Woodson, J., who dissents.

OPINION

GRAVES

This is a certiorari case wherein it is sought to quash the record of the Probate Court of Macon County in the matter of granting an appeal to the circuit court. The petition is of great length, but it contains a great mass of matter which is wholly foreign and irrelevant. The sole question is, whether or not the Probate Court of Macon County had the right, power and authority to grant an appeal in a pending matter, the particulars of which we shall give in detail. The judge of the Macon County Probate Court made return by certifying to this court his full record touching the matter, and having that record before us, we must cast aside all irrelevant matter in the petition upon which our writ was granted, and determine whether or not said court was within its jurisdiction when the order granting the appeal was made. Why so much extraneous matter was placed in the petition we do not know, because counsel are seasoned veterans in the practice of law. This court usually cleans the case of all trash and underbrush, and then decides the real questions.

Going to the facts, the record in the instant case, including the admissions of relators in their brief, shows as follows: That in January, 1924, one Melville Smith died in Macon county leaving a will (or purported will) by the terms of which W. Arthur Smith and Walter Wilkerson were named as executors; that Wilkerson declined to serve, but that the will was duly probated, and W. Arthur Smith qualified, and took up the administration of the estate; that later the Probate Court of Macon County, upon the petition of some heirs at law of deceased, upon a hearing upon such petition, determined that there was a suit pending in the circuit court of said county contesting said will, and thereupon entered its judgment appointing one Albert F. Smith administrator pendente lite, and adjudging that W. Arthur Smith had "no authority to act under Section 13, Revised Statutes 1919;" that Albert F. Smith qualified by giving bond, which bond the court approved. Later the usual affidavit for appeal was filed, and the probate court continued the cause for a time "until the court is further advised as to whether the appellant is entitled to any appeal." Finally on January 2, 1925, the court granted W. Arthur Smith an appeal to the Circuit Court of Macon County, and approved an appeal bond in the sum of $ 1200. Throughout the record it is shown that counsel appeared for the petitioners, mentioned above, who in their petition asked the suspension of W. Arthur Smith, and the appointment of an administrator pendente lite. The record also shows the appearance of counsel for W. Arthur Smith, the executor, at all the hearings had in the matter. Our writ was invoked to quash that portion of the record granting the appeal. This is the single question in the case.

I. In our statement we have eliminated all extraneous matter in the petition for our writ. The single issue is, whether or not the Probate Court of Macon County was without jurisdiction to make an order granting an appeal in the matter before him. We have written so much upon this question that we hesitate to write more. [Leahy v. Campbell, 274 Mo. 343, l. c. 361; Leahy v. Mercantile Trust Co., 296 Mo. l. c. 597 et seq.; In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. l. c. 668 et seq.]

In the latter case (270 S.W. l. c. 669) we said: "Since the opinion of Gantt, J., in Coleman's case, supra, the right to have an appeal (unless it is expressly prohibited by law) from any final judgment or order made by a probate court has never been denied by this court, but, on the other hand, fully sustained under Section 2436, Revised Statutes 1919. [Leahy v. Mercantile Trust Co., 296 Mo. l. c. 600, 601, 247 S.W. 396.] It matters not whether such final judgment or order is in the estate of an insane person, or in some other branch of probate jurisdiction."

In this opinion the seven members of this court concurred. We had hoped that the matter had been finally settled.

In Leahy v. Mercantile Trust Co., 296 Mo. l. c. 598, we ruled that the construction giving the right to an appeal was not contradicting the terms of Section 13, Revised Statutes 1919, but only went to the question as to whether or not such judgment or order of the probate court made under the statute was appealable.

This Section 13, relied upon by relators here, was discussed by Burgess, J., in State ex rel. Alderson v. Moehlenkamp, 133 Mo. l. c. 138 and 139, where he expressly says that it was for the probate court "to determine from the evidence before it" whether a will contest proceeding was pending in the circuit court. And may we add that the determination of that question is one of both law and fact. It is and must be a hearing upon evidence, in which hearing those bringing a contest suit are interested parties upon one side, and the duly constituted executor of the will, the interested party upon the other side. The judgment of the probate court determines the issue in favor of one or the other of the adversely interested parties. The judgment of the probate court in this case recites the fact of a hearing upon evidence.

The latter foregoing remarks are not strictly pertinent to the question of the right to an appeal, but are pertinent to another question raised by learned counsel, which question we shall discuss more fully. If the probate court had the right to grant an appeal, then our writ of certiorari should be quashed, and the record of the Probate Court of Macon County should be upheld. The purpose of such a writ is to bring up the record for our consideration. If the lower court was within its jurisdiction in...