Tittman v. Edwards

• Decision Date: 25 October 1887
• Citation: 27 Mo.App. 492
• Parties: E. C. TITTMAN, Appellant, v. A. G. EDWARDS, Respondent.
• Court: Missouri Court of Appeals

27 Mo.App. 492

E. C. TITTMAN, Appellant, v. A. G. EDWARDS, Respondent.

Court of Appeals of Missouri, St. Louis.

October 25, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

FRED. WISLIZENUS, for the appellant: Sections eight and nine Revised Statutes, being general, must yield to the particular provisions of section 306. The State v Clark, 54 Mo. 17; The State v. Debar 58 Mo. 395; Lamb v. Helm, 56 Mo. 433; The State v. Wolf, 10 Mo.App. 99; Spreckles v. Public Adm'r, 1 Dem. 476. The history of these sections shows that the public administrator has exclusive right to administer in the cases set forth in section 306. Rev. Stat., sect. 3160; Session Acts 1868, p. 3; Sedgwick on Construction, p. 194. The public policy underlying public administration requires the authority of the public administrator to be exclusive in the class of cases indicated by section 306. Schouler's Ex'rs and Adm'rs, sect. 116, p. 148; Estate of Hyde, 64 Cal. 228; Estate of Morgan, 53 Cal. 244; Estate of Kelly, 57 Cal. 81; Matter of Blank, 2 Redf. 443; Public Administrator v. Watts, 1 Paige 382; Ex parte Hannover, 3 Redf. 91; In re Root, 1 Redf. 257; Matter of Estate of Goddard, 30 Hun 401; Matter of Estate of Goddard, 94 N.Y. 544; McCabe v. Lewis, 76 Mo. 296.

DYER, LEE & ELLIS, for the respondent.

OPINION

THOMPSON J.

This is a proceeding begun in the probate court of the city of St. Louis, by a motion presented by the public administrator of the city of St. Louis, in which he seeks to have letters of administration, which had been granted to A. G. Edwards upon the estate of Patrick Grogan, deceased, revoked, in order that he, as public administrator, may, under the authority conferred by section 306, Revised Statutes, take charge of the estate. The following evidence was adduced in support of the motion: Patrick Grogan died intestate and unmarried in the city of St. Louis, Missouri, within thirty days prior to the twenty-third day of February, 1887. At the time of his death and for years prior thereto, he was a resident of said city of St. La. He had no relatives by blood or marriage residing in Missouri. The heirs of said Patrick Grogan consisted of two brothers and the children of two deceased sisters, each and all of said heirs being resident in the city of Chicago, state of Illinois. The estate of Patrick Grogan consisted principally of unsecured notes executed by residents of the city of St. Louis (of the face value of $8,650), and of the bonds of the county of Laclede, Missouri, amounting, with coupons, to $1,356. The probate court of the city of St. Louis, on February 23, 1887, on the written request of John H. Grogan, a brother, and one of the heirs of the deceased, appointed A. G. Edwards administrator of the estate of said Patrick Grogan. A. G. Edwards gave bond, which was duly approved by the probate court, filed an inventory, and has continued to act as such administrator ever since. Eugene C. Tittmann, the public administrator of the city of St. Louis, had no knowledge of any of the foregoing facts, until after said Edwards had qualified as administrator. No opposing evidence was offered. The probate court overruled the motion, as did also the circuit court upon an appeal and a hearing de novo. In giving his judgment overruling the motion, Judge Lubke, of the circuit court, delivered a written opinion, which we have had the advantage of seeing, and in the reasoning of which we concur.

It is admitted that authority for the appointment of Mr. Edwards as administrator is found in section 8, Revised Statutes, and it would seem to have been a proper exercise by the court of its power, under the circumstances above disclosed, to appoint a resident of the jurisdiction, able to give bond, upon the nomination of the brother of a non-resident heir. Upon what principle, then, can the letters so granted be revoked, in order that another person, who would have been entitled to take charge of the estate but for this appointment, may do so? Obviously, where two persons are equally entitled by law to administer upon an estate, and one of them is appointed the mere fact that the other may desire the appointment will afford no...