121 Mo. App. 660 | Mo. Ct. App. | 1906
Plaintiff filed a motion in the probate court of Schuyler county, the purpose of which was to obtain the revocation of letters of administration issued to defendant, the public administrator, on the estate of Caleb Collins, deceased, and the grant of letters of administration to plaintiff. The probate court sustained the motion and defendant appealed to the circuit court where the motion was submitted by the parties on an agreed statement of facts. Plaintiff again prevailed and the case is here on defendant’s appeal. The material facts thus are stated in the agreed statement:
“That on the 11th day of August, 1905, Caleb Collins died intestate and without widow or issue, being a.t the time of his death a resident of Davis county, Iowa; that William A. Hollingsworth, plaintiff in this case, is one of the heirs of said Caleb Collins, deceased, and entitled to a distributive share of said estate, and that he was then and is now the only male heir of said deceased residing in the State of Missouri; that he is now and was the only heir and distributee of said Collins living in this State at the time the probate court ordered defendant to take charge of said estate, competent to administer thereon; that he lives and did live at the time of the death of said Caleb Collins, and has ever since continuously resided in Mercer county, Missouri; that on the 4th day of December, 1905, the probate court of Schuyler county, Missouri, during the regular term thereof, ordered John H. Jeffries, public administrator
Two main questions are presented. First, were the letters of administration granted to the public administrator improvidentlv issued? Second, if not, has plaintiff as the resident heir of the decedent the right to supersede the public officer in the administration of the estate?
By the provisions of section 292, Revised Statutes 1899, it is made the duty of the public administrator “to take into his charge and custody the estates of all deceased persons ... in the following cases: First, when a- stranger dies intestate in the county without relations, or dies leaving a' will and the executor named is absent or fails to qualify; second, when persons die intestate without any known heirs; third, when persons unknown die or are found dead in the county; fourth,
In the present case where a non-resident of this State died intestate in the State of his residence leaving personal property in this State that was liable to be injured, wasted or lost, and leaving no known heir residing in this State, it was the clear duty of the public administrator of the county wherein the property was situated to take charge of it in order that it might be preserved from injury, Avaste or loss. This, the officer mentioned could have done laAvfully without the grant of letters of administration. [Adams v. Larrimore, 51 Mo. 130; McCabe v. Lewis, 76 Mo. 296.] And on taking charge of the property, either with or without such letters, he became vested with the powers and charged with the duties of a private administrator appointed under the general administration laAV. [R. S. 1899, sec. 293.] He became subject to the jurisdiction of the probate court and in a proper case could be removed by that tribunal. [McCabe v. Lewis, supra.] Despite the fact that at the time he took charge of the estate an heir of the decedent resided in this State, who was qualified by laAV to act as administrator, the grant of letters to the public administrator was not made imprevidently. Neither that officer nor the probate court of Schuyler county had knowledge of that fact. Property belonging to the estate was situated in their jurisdiction and needed attention. A situation such as this is one for which the office of public administrator was created and obviously it would be out of harmony Avith the spirit as well as the letter of the law should we hold that the act of the probate court in granting letters to the public administrator
But it does not follow that because these acts were within lawful bounds the public administrator may be removed only on account of some misconduct. Sections 7, 8 and 9, Revised Statutes 1899, provide “that letters of administration shall be granted: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court, or judge, or clerk in vacation shall believe will best manage and preserve the estate. If no such person apply for letters within thirty days after the death of the deceased, the court, or judge, or clerk may issue a citation to him, or them, on motion of any person interested, to appear and qualify for administration, giving at least five days time for that purpose; and if the person or persons so cited fail to administer within the time appointed, letters may be granted to any person whom the court, or judge, or clerk in vacation may deem most suitable.
“Letters testamentary and of administration may at any time be granted to any person deemed suitable if the person, or persons, entitled to preference file their renunciation thereof, in writing with the clerk of the court, or if proof be made that no such persons reside in this State.”
In these enactments is observed the fixed policy of entrusting the administration of the estate of a deceased person to one who by reason of his heirship has a personal interest in the estate rather than to one who is a stranger thereto. If husband or wife residing in this State survives the decedent, he or she has the prior right to administer. There being no husband or wife, it is within the province of the probate court to say which
Defendant argues that under the provisions of section 294 of the article in Eevised Statutes 1899, relating to public administrators, he could only be removed for cause during the progress of the administration, but section 298 of the same article gives to the probate court the authority “at any time for good cause shown to order the public administrator to account for and deliver all money, property, or papers belonging to any estate in his hands to his successor in office, or to the heirs of said estate, or to any executor or administrator regwlarly appointed as provided hy lawTo give proper effect to the clause which we have italicized requires the conclusion that the Legislature intended to provide for the very situation now before us, i. e., that where the estate requires the care and attention of an adminis
The purpose of the statute relating to the administration of estates by public administrators, as was well said in Tittman v. Edwards, 27 Mo. App. 492, “is to provide a bonded officer who should take charge of estates of deceased persons in cases «'here they are liable to be wasted by reason of the fact of no executor qualifying or no administrator being appointed under the general law. It is auxiliary to the general law relating to administration and was intended to supply its deficiency in the particular named. It Avas intended as an adjunct to it, but was not intended to repeal or supplant any of its provisions.”
It folloAVS from Avliat has been said that plaintiff is entitled by law to administer the estate and that no error Avas committed in revoking the letters of the public administrator and in the appointment of plaintiff to succeed him.
The judgment is affirmed.
