274 Mo. 343 | Mo. | 1918
The ease now here originated in the prohate conrt of the city of St. Lonis. J ames Campbell died June 12, 1914, leaving a will, by the terms of which the Mercantile Trust Company was made the executor. This will was on June 16, 1914, dnly probated in the probate court of the city of St. Louis, and the Mercantile Trust Company duly qualified as executor, and letters testamentary were issued to it by that court, and said Mercantile Trust Company entered upon the discharge of its duties as such executor. Whilst the Mercantile Trust Company had possession of and was administering upon the estate of' the said James Campbell, Margaret C. Harrison aiid others instituted a suit in the circuit court contesting this will. The filing of this suit was in the following October.
After the filing of this contest proceeding the present case originated in the probate court by the filing of the following petition:
In the Probate Court, City of St. Louis, State of Missouri.
September term, 1914.
In the Matter of the Estate of James Campbell, deceased. No. 43709.
To the Honorable Charles W. Holtcamp, Judge of said Court:
And now come Margaret C. Harrison, Mamie S. Spargo, James G. Campbell, Archie W. Campbell and Genevieve Baker, petitioners, and respectfully represent that on the 3rd day of October, 1914, they caused to be filed in the office of the clerk of the circuit court of the city of St. Louis, Missouri, a petition, as required by law, to contest the will of James Campbell, deceased, which said will was probated herein on the 18th day of June, 1914, and the title of which said cause is as follows, to-wit:
“In the Circuit Court of'the City of St. Louis, Missouri,
December Term, 1914.
“Margaret C. Harrison, Mamie C. Spargo, James C. Campbell, Archie W. Campbell and Genevieve Baker, Plaintiffs.
vs.
“Florence A. Campbell, Lois Ann Burkham, Wife of Elzey G. Burk-ham, Mercantile Trust Company, purporting to be Executor and*353 Trustee of the purported will of James Campbell, deceased, and St. Louis University of the City of St. Louis, Missouri, Defendants.”
Your petitioners therefore pray that an administrator ‘pendente Ute he appointed herein, as by statute provided, to take charge of the property of said estate and to administer the same according to law. And your petitioners will ever pray, etc.
Margaret C. Harrison,
Mamie C. Spargo,
James C. Campbell,
Archie W. Campbell, and Genevieve Baker,
By L. Frank Ottofy,
Their Attorney.
This petition was contested in the prohate conrt. Mr. Leahy was not a party to that contest, and in the very nature of things conld not have been a party. The probate conrt in an opinion filed made the following statement.
“The authority of the Mercantile Tru-st Company as executor under the will of James Campbell is hereby suspended and it is ordered to settle to such suspension with the administrator pendente lité and John S. Leahy is hereby appointed administrator pendente lite of the estate of said James Campbell, deceased,, npon giving bond with sufficient surety approved by the court in the sum of ten million dollars, the court reserving the right to increase his said bond if at any time during the administration of the estate the reasonable value of the assets of said estate should require additional surety.”
The same in modified form was included in a final order made the day Mr. Leahy tendered his bond and had the same approved. This modified order fixing a temporary and a'final bond will be noted in the opinion-This order was entered of record a day or so after the filing of the opinion mentioned, supra.
It is important here to note the appeal which was actually taken. Four parties appealed from the order of the probate court, but it is important to get the appeal which they actually took. They all appealed from that portion of the order of the probate court suspending
The affidavits of the other two appellants, Mercantile Trust Company and St. Louis University, are mbre general, but it is clear that their appeal was to the same effect as that of Mrs. Campbell and Mrs. Burkham. In fact, the order of the probate court granting the appeals so shows. This order as to Mercantile Trust Company reads: “I do further certify that on the 28th day of October, 1914, in vacation, after the adjournment of said court for the September term, 1914, thereof, and within ten days thereafter, the Mercantile Trust Company, executor of the last will of James Campbell, deceased, filed in my office an affidavit and bond for an appeal from the order of said court, of date October 2%, 1914, suspending the letters testamentary granted to the Mercantile Trust Company, as executor of the last will of said James Campbell, deceased, to the circuit court, city of St. Louis, which said affidavit and bond were duly approved by the judge of said probate court and said appeal allowed.” The italics are ours. The order granting the appeals to Mrs. Campbell, Mrs. Burk-ham and the St. Louis University are in the same language, and they need not be quoted. Leahy was never a party to the contest, unless the order appointing him had the effect of making him a party. ,
The judgment of the circuit court, which is appealed from in the case before us, contains this language: “therefore, the application of the contestants to suspend the letters testamentary of the executor under said will for the appointment of an administator pen-dente lite is denied.”
The application referred to in this judgment we have set out in full above. It is the application of
I. We are of the opinion that Leahy was not a party to the proceeding disclosed by this record, and for that reason his appeal should be dismissed. We have purposely and at length set out the record in this case, to the end that it might be seen who were the real parties interested in this proceeding. No appeal was taken from the order appointing Leahy' administrator pendente lite. The probate court’s order we have set out in the statement so shows. This record says that the Mercantile Trust Company and the other appellants “filed in my office an affidavit and bond for an appeal from the order of said court, of date October 22, 1914, suspending the letters testamentary granted to the Mercantile Trust Company, as executor of the last will of sa-id James Campbell, deceased, to the circuit court, city of St. Louis, which said affidavit and bond were duly approved by the judge of said probate court and said appeal allowed.”
So ran all the appeals taken. No appeal was taken from that portion of the said order designating Leahy as administrator pendente lite. The circuit court never tried that matter, as its judgment shows, because that court .by its judgment only said: “Therefore, the application of the contestants to suspend the letters testamentary of the executor under said will and for the appointment of an administator pendente lite is denied.” The whole question in the circuit court was that portion of the probate court order which suspended the letters
In Branson v. Branson, 102 Mo. l. c. 620, Black, J., has well said: “The'statute provides in express terms that the appeal in probate matters shall not be a super-sedeas in any other matter relating to the administration of the estate, except that from ivbich the appeal is specially taken; and the proceedings had in thé circuit court must be certified back to the probate court. [R. S. 1879, secs. 297, 300.] It is, therefore, clear that the appellate court acquires jurisdiction only of the particular order of judgment appealed from. It is that order and that only which it can consider. Nor does the appellate court carry into effect its own order, but its decision is certified to the probate court, which proceeds in conformity therewith. ’ ’
To reiterate it should be said the contest in the probate court was not whether Leahy should or should not be administrator pentente lite. That contest involved but one question, and that question was, whether or not an administrator pentente lite should be appointed. Not the question whether Leahy should or should not be appointed. In other words the thing to be determined in the probate court was whether, or not, under the facts, there was a place to be filled by an administrator
II. The most serious question in this ease, is that we are called upon to determine an absolutely moot ease. We may, for the sake of the argument upon this point, grant the right to Leahy to appear in the circuit court and to appeal to this court, and yet his appeal to this court should now be dismissed, because his case has become a mere moot case.
It is urged in appellant’s briefs that the case of State ex rel. v. Imel, 243 Mo. 178, has no application to this case because the facts are different, and that it is no authority against the contention of appellant in this case. It is true that Imel’s case and this case are not “gray mules” cases. But Imel’s case is authority, and the very strongest authority, for the proposition that this court will not hear and determine a mere moot case. [State ex rel. v. Imel, 243 Mo. l. c. 189.] On this page Lamm, J., collates the cases, both in and out of Missouri, sustaining the proposition. To the interested this reference will suffice. . It is likewise authority for the rule that an appellate court should dismiss the
Now it may be true that Leahy’s case has not become a moot case by treading the exact pathway described in the Imel case, but if by any pathway it has reached the status of amere moot case the rule in Imel’s case applies.
Let us get the facts and occurrences in' the Leahy case. His appointment thus appears from the probate record: “that John S. Leahy be and he is hereby appointed administrator pendente lite of the estate of said James Campbell, deceased, remaining unadminis-tered, pending such contest, and that he now give bond, as such administrator, in the sum of ten thousand dollars, and upon his receiving the assets of said estate his bond as such administrator is to be increased to the sum of ten million dollars. And thereupon comes said John S. Leahy, administrator pentente lite as aforesaid, and tenders his bond as such administrator in the sum of ten thousand dollars, which bond being examined by court is approved and ordered to be filed and recorded. ’ ’
So far as the record before us shows Leahy never got further than giving the $10(,000 bond mentioned in this order. He never qualified under the order, so as to receive and hold the assets of the estate. It is not contended that he ever got possession of the estate. Our records show -that- the will case was finally determined here, adverse to Margaret Harrison et al., prior to the submission of the instant case. Vide State ex rel. v. Imel, 243 Mo. l. c. 187 and 189, for our authority to examine our own records.
Now when this court dismissed the appeal of Margaret Harrison et al. in the will contest case, as it did prior to the submission of this case, the alleged appointment of John S. Leahy, appellant here, was at once vacated. "We again quote from the learned opinion in Imel’s case, 243 Mo. l. c. 186: “By analogy, his office is said to be in the nature of a receivership; and, when the contest is at an end and the validity of the will established, his term of office expires and his right to act ends. The executor or regular administrator c. t. a. becomes again qualified to act in the administration of the estate. So, when that time comes the provisional administrator is functus officio. He must step down and out instanter, settle and turn over ‘the money ánd property of the estate to the executor or regular administrator, who,, by that token, comes into his own again. [R. S. 1909, sec. 21, supra; Robards v. Lamb, 76 Mo. l. c. 194; Robards v. Lamb, 89 Mo. l. c. 311; State ex rel. v. Moehlenkamp, 133 Mo. l. c. 138 ; Lamb v. Helm, 56 Mo. l. c. 432; Hawkins v. Cunningham, 67 Mo. 415.]”
In the instant case Mr. Leahy never had possession of the Campbell estate. He never performed a single duty imposed by law upon administrators or executors,
Now is this a moot case? What could we do by our judgment? We could not change the fact that, by operation of law, Mr. Leahy was rendered powerless to act, when the appeal of Margaret Harrison et al. in the will case was dismissed. We could not change the fact that Mr. Leahy has performed no services for the estate, for this fact is emblazoned on every page of this record. We could not change the law. that it is only for services actually performed that an administrator or receiver‘is entitled to compensation. The most that we could do would be to say that there was a period during which Mr. Leahy might have rendered services to the estate,
III. Whilst I think it can be demonstrated with the accuracy and precision of an Indian’s arrow, that an appeal will lie from the probate court to the circuit court from an order suspending the letters testamentary of an executor under a will, yet if either of the two propositions above is well founded, such a discussion would be a useless one, and we therefore pass it. But for the reasons expressed in paragraphs one and two, supra, the appeal herein should be dismissed.
It is so ordered.