| Mo. | Jul 30, 1928
Lead Opinion
The uncontroverted facts herein are these: John M. Wilson, who had been, and was at the time of his death, adjudged to be a person of unsound mind, died possessed of property and a resident of Lincoln County, Missouri, on April 12, 1924. James L. Wilson, a nephew of John M. Wilson, had been, and was at the death of said John M. Wilson, the duly appointed, acting and qualified guardian of the person and estate of said John M. Wilson, by appointment of the Probate Court of Lincoln County. On April 24, 1924, the Probate Court of Lincoln County appointed said James L. Wilson administrator of the estate of John M. Wilson, deceased, and said appointee duly qualified as such administrator. John M. Wilson died intestate and unmarried. His several surviving brothers and sisters, together with a nephew and a niece, who are the descendants of a deceased sister or brother of John M. Wilson, are his heirs at law and the legal distributees of his estate. James L. Wilson is the son of a surviving brother of John M. Wilson, and therefore is not an heir of the deceased or a distributee of decedent's estate. All of the aforesaid heirs of John M. Wilson signed a written waiver, relinquishing and renouncing their statutory right and preference to administer the estate of said John M. Wilson, deceased, and duly filed such renunciation in the Probate Court of Lincoln County, save and except Respino Wilson, a surviving brother of deceased, and Rebecca Dougherty, a surviving sister of deceased, both *977 of whom are and were residents of the State of Missouri, and neither of whom was cited to appear in the Probate Court of Lincoln County before, or at the time of, the appointment of the administrator of said estate, or was either of them notified of the statutory preferential right to administer said estate, as provided by Sections 7 and 8, Revised Statutes 1919. On May 26, 1924, more than thirty days after the death of the deceased Respino Wilson, brother of the deceased, filed a motion in the Probate Court of Lincoln County asking that the appointment of James L. Wilson as administrator of the estate of deceased be revoked and set aside, and that said Respino Wilson be appointed administrator of said estate in the place and stead of James L. Wilson. Upon a hearing of said motion in the Probate Court of Lincoln County, that court revoked the letters of administration theretofore granted unto James L. Wilson, but refused to appoint Respino Wilson administrator of said estate. Thereupon, James L. Wilson appealed from the action of said probate court to the Circuit Court of Lincoln County, where, upon a trial de novo, judgment was entered removing said James L. Wilson as administrator of said estate, revoking the letters of administration theretofore granted to him, and certifying such removal and revocation of letters of administration to the probate court of said county. After an unsuccessful motion for new trial, said James L. Wilson was granted and allowed an appeal to this court from the judgment so entered.
Neither party has questioned our jurisdiction of this appeal or raised that question by their briefs, but we have repeatedly held that jurisdiction of an appeal cannot be conferred upon this court by the mere consent, acquiescence, or silence of the parties. [In re Tannory, 297 S.W. 967; State ex rel. v. Sims.
It is apparent from the record before us that the present proceeding does not involve the construction of either the Federal or the State Constitution; nor is the proceeding one involving the title to real estate, or one in which the judgment appealed from operates directly upon the title to real estate: nor does the present proceeding involve the title to any office under this State. The record herein does show that the approximate appraised value of the estate of John M. Wilson, which consisted entirely of personalty, is $17,000, but the *978
value of said estate, in our opinion, is not the amount in dispute, or at issue, in the present proceeding. White it may properly be said that the administrator or executor of an estate is the legal owner, for the time being and during the course of administration, of the personal property of which decedent died possessed, and that his title and authority extends so completely to all such personal property as to exclude, for the time being, creditors, legatees, distributees, and all others beneficially interested in the estate (23 C.J. 1172; Orchard v. Store Co.,
We are unable to find any ruling of an appellate court of this State upon this precise question, and the precise question of our appellate jurisdiction in such a proceeding appears to be one of first impression in this court and in this State; which is a sufficient reason for our now determining and settling such question for the benefit and future guidance of the bench and bar of the State. The rule has been well settled and clearly established by the decisions of this court that, in cases or proceedings "where relief is sought other than in the recovery of a money judgment, the value of the right necessarily involved,
estimated in money, will constitute the measure of our jurisdiction." [State ex rel. v. Reynolds (Court en Banc),
But we are not wholly without judicial precedent upon this precise subject, for the Supreme Court of the United States ruled a like question of its own pecuniary jurisdiction upon an appeal from a judgment or order entered in a proceeding wherein two persons were contesting their respective right and title to the office of guardian of a minor's estate. [Ritchie v. Mauro, 2 Pet. (27 U.S.) 243, 244.] In that case, Mr. Chief Justice MARSHALL, delivering the opinion of that court, said: "In the present case, a majority of the court are of opinion that this court has no jurisdiction in the case; the value in controversy not being sufficient to entitle the party by law to claim an appeal. Thevalue is not the value of the minor's estate, but the value ofthe office of guardian. The present is a controversy merely between persons claiming adversely as guardians, having no distinct interest of their own. The office of guardian is of no value, except so far as it affords a compensation for labor and services thereafter to be earned." (Italics ours.)
We find two decisions of the Court of Appeals and Supreme Court, respectively, of Louisiana to the contrary, and which seemingly hold that appellate jurisdiction in that State depends upon the value of the assets of the estate rather than upon the value of the office (Succession of Thomas, 2 McGl., 127" court="La. Ct. App." date_filed="1884-07-01" href="https://app.midpage.ai/document/succession-of-thomas-7206129?utm_source=webapp" opinion_id="7206129">2 McGloin, 127; State v. Insurance Co.,
At most the present proceeding, in our judgment, involves only the statutory fees or compensation to which the removed and appealing administrator would be entitled upon his administration of said estate. The statute (Sec. 220, R.S. 1919) prescribes as the *980 full compensation of administrators for their services "a commission of five per cent on personal property and on money arising from the sale of real estate." Assuming that the estate in question consists entirely of personalty, and is valued at $17,000, the statutory commission of five per cent computed thereon amounts to only $850, which sum is the maximum amount involved and in dispute in the present proceeding as disclosed by the record herein. None of the essential prerequisites to confer jurisdiction upon this court, prescribed by Article 6, Section 12, of our State Constitution, is present herein. It is our duty, therefore, to transfer the cause or proceeding to the St. Louis Court of Appeals, and it is so ordered. Lindsay, C., concurs;Ellison, C., not sitting.
Addendum
The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur.