Wickham v. Page
| Decision Date | 31 March 1872 |
| Citation | 49 Mo. 526 |
| Parties | JOHN WICKHAM, ADMINISTRATOR de bonis non OF ESTATE OF ROBERT WASH, Respondent, v. JOHN Y. PAGE AND GEORGE R. ROBINSON, Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Glover & Shepley, with Davis, Bowman & Smith, and Noble & Hunter, for appellants.
J. Wickham and A. Hamilton, for respondent.
The only question raised by the record and insisted upon in the argument is whether the Probate Court, in entering up judgment against the surety, acted within the line of its jurisdiction. It appears that Page was appointed administrator de bonis non on the estate of Robert Wash, deceased, and that the defendant Robinson and others were his sureties. The letters of administration granted to Page were revoked, and Wickham, the plaintiff, was appointed as his successor. At the time of the revocation of the letters it was ascertained that Page had in his hands, belonging to the estate, the sum of $40,570.24, of which $19,011.88 was in cash and the balance in personal effects. Wickham presented his petition to the court, asking it to cause the proper notice to be served upon the parties, and to order and adjudge that the moneys and effects in the hands of Page might be given up and surrendered to him, and to have such order and judgment enforced against Page and his sureties. Notice was duly issued and served upon Page and Robinson at least fifteen days before the cause was set for hearing; and they appeared in court and contested the matter. The other sureties were not served, and the case was dismissed as to them. Upon a hearing of the evidence in the case, judgment was rendered against Page and Robinson jointly for the amount of money found to be in the hands of the former due the estate, and an order was made against Page individually, directing him to deliver to Wickham the personal effects remaining in his possession. At a subsequent term of the court, Robinson appeared and filed his motion to set aside the judgment rendered against him, on the ground that the court had no jurisdiction to entertain the proceedings. This motion was overruled, and on an appeal to the Circuit Court the action of the Probate Court was sustained.
This proceeding was instituted and the action of the Probate Court was had under the statute in reference to administration (Wagn. Stat. 81, § 67). There is nothing in the objection made that the law does not apply to the Probate Court of St. Louis county. It applies to all courts exercising probate jurisdiction, unless there is a special restriction contained in their organization; and we have been unable to find any such restriction in the act establishing the St. Louis County Probate Court. The section under which the power is sought to be derived is section 67, and it provides that “if any executor or administrator resign, or his letters be revoked, the court shall have power, upon the application of his successor or the remaining executor or administrator, to ascertain the amount of money, the quantity and kind of real and personal property, and all the rights, credits, deeds, evidences of debt and papers of every kind, of the testator or intestate, in the hands of such executor or administrator at the time of his resignation or removal from office or revocation of letters, and to order and adjudge the rendition of the same to the successor of such executor or administrator, and to enforce such order and judgment against such executor or administrator and his sureties in the...
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Fugate v. Weston
...though the statutes do not, in terms, require notice, the law will imply that notice was intended. Laughlin Fairbanks, 8 Mo. 370; Wickham Page, 49 Mo. 526; Brown Weatherby, 71 Mo. 152. And what the law will imply is as much part and parcel of a legislative enactment, as though set forth in ......
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