In re Dugan
- Reporters:
- ,
- Before:
- Ruark
RUARK, Judge.
This is an appeal from a judgment dismissing an appeal from probate court.
On March 30, 1956, Joel Davis, Public-Administrator of Jasper County, made application for letters of administration on the estate of Jerrold William Dugan, deceased. Such application recited that the intestate was at the time of his death a resident of the State of Kansas and that the probable value of his estate was personal, $100, real estate, none. The names and addresses of his heirs were a father and mother, both resident in Kansas. On the same day said public administrator was ordered to take charge of the estate and letters of administration were issued. Both the order and letters refer to the deceased as “late of the County of Jasper, State of Missouri.” The order recites that the deceased died in Jasper County, Missouri. Notice of letters issued by the clerk recites the fact that the
On September 27, 1956, the Missouri Pacific, appellant here, filed its motion to cancel and revoke the letters theretofore issued to the public administrator. This motion recited in substance the following: That the deceased was a resident of Kansas; that, as shown by the inventory, the
We are of the opinion that appellant‘s motion is a direct and not a collateral attack, this in view of the provisions of
The first question is, is the refusal to revoke letters an appealable order? We think so. In re Scott‘s Estate, 237 Mo.App. 1260, 173 S.W.2d 115, and cases cited; Annotation 37 A.L.R.2d 751, 758.
Our next and most serious question is, does the Missouri Pacific have such an interest in the subject matter of the litigation as will permit it to prosecute the motion and to appeal from its overruling? This question divides itself into (a) does appellant have such interest as will give it standing to interpose and set up claim of invalidity of the issuance of letters and appointment of administrator?; (b) does it fall within the group or class of persons who have such an interest which permits an appeal ? We shall attempt to deal with these questions in order, although the decision as to (a) must of necessity have some effect on question (b).
As to whether a contingent debtor, defendant in a lawsuit brought by the administrator, can attack the validity of the appointment of such administrator there is considerable confusion, conflict, and dissent. Annotation 123 A.L.R.2d 1225; 33 C.J.S. Executors and Administrators § 85 b, p. 1022; 23 C.J., Executors and Administrators, section 278, page 1104. In a number of the decisions it is held that the debtor has no interest which gives him standing in court. In re Walsh‘s Estate, 131 N.J.Eq. 376, 25 A.2d 424; Yazoo & M. V. R. Co. v. Jeffries, 99 Miss. 534, 55 So. 354; In re Stone‘s Estate, 173 Iowa 371, 155 N.W. 812; In re Wertz’ Estate, Pa., 6 Dist. & Co. R. 2d 429, 5 Fiduciary 516, 69 York Leg.Rec. 69; In re Trost‘s Estate, 292 Ill.App. 60, 10 N.E.2d 857; In re Estate of Hardy, 35 Minn. 193, 28 N.W. 219; In re Mayo‘s Estate, 60 S.C. 401, 38 S.E. 634, 54 L.R.A. 660; Missouri Pac. R. Co. v. Bradley, 51 Neb. 596, 71 N.W. 283; Brinkley v. Allen, 200 Ark. 1147, 143 S.W.2d 187; In re Barmeier‘s Estate, 248 App.Div. 636, 288 N. Y.S. 318; City of Bessemer v. Clowdus, 258 Ala. 378, 63 So.2d 355; Southern Ry. Co. v. Moore, 158 S.C. 446, 155 S.E. 740, 73 A.L.R. 582; In re Estate of Upton, 199 Wash. 447, 92 P.2d 210, 123 A.L.R. 1220.1 An expression common to such cases is that the debtor has no interest in the estate except an interest to hinder or destroy his adversary.
But other authority which we consider to be better reasoned holds that if the appointment is void the debtor has such an interest as will permit him to assert such invalidity in a direct proceeding. Cooper v. Gulf, C. & S. F. Ry. Co., 41 Tex.Civ.App. 596, 93 S.W. 201; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L. R. 284; Lee v. Allen, 100 Md. 7, 59 A. 184; Louisville & N. R. Co. v. Herb, 125 Tenn. 408, 143 S.W. 1138; McCoubrey v. Pure Oil Co., 179 Okl. 344, 66 P.2d 57; Mallory‘s Estate, v. Burlington & M. R. Co, 53 Kan. 557, 36 P. 1059.2 The composite reasoning of such holdings is that the debtor has an interest in knowing that the person with whom he settles or who may obtain judgment against him is lawfully entitled to receive such money or to obtain and enforce such judgment; otherwise the debtor might be put in a position of being required to pay an unauthorized person once and later be required to pay again upon demand or suit of validly appointed administrator.
Assuming that payment is made to an administrator appointed by a court having jurisdiction of the subject matter and power to make the appointment, and that there be a mere voidable irregularity in the appointment or qualification of such administrator, then it would appear that the debtor would be safe in dealing with such administrator. Such appointment might be voidable at the objection of some interested person, but the subsequent vacation of such appointment would not affect the validity of acts done under it in the meantime.
But suppose the court has no jurisdiction of the subject matter, the res, which in this instance is the estate itself. To use the language of McIver, Judge, in his dissenting opinion in In re Mayo‘s Estate, supra, 38 S.E. loc. cit. 639:
” * * * there could be no proceeding in rem unless there was a res; and the res in a case like this would, as I understand it, be the estate of the intestate; and, if there is no estate of the intestate within the jurisdiction of the court, * * * then there would be no res, and consequently no proceeding in rem.”3
If such jurisdiction did not exist at the inception, life and validity could not be breathed into that which had no existence. If the court has no jurisdiction or power to appoint a public administrator, then the issuance of letters to such administrator would be void. Donelson‘s Estate v. Gorman, 239 Mo.App. 300, 192 S.W.2d 29; see State ex rel. Smith v. Hull, Mo.App., 147 S.W.2d 214, 216. And if such appointment is void, the debtor has a pecuniary interest in seeing that he is not to be
In Donaldson v. Lewis, 7 Mo. App. 403, a public administrator was appointed and an acknowledged debtor moved for revocation of the authority of the administrator on the ground that the creditor was not shown to be dead. It was held that while the public administrator is authorized in certain cases to take charge of the estate of deceased persons in his county, he has no power to take charge of the estate of persons not dead and that, this being so, the debtor had an interest in seeing that his creditor was paid and that such interest was sufficient to give him standing in the court. This case has been cited many times and has been criticized in some respects, but so far as we are able to find it has never been overruled in respect to the question here presented. The case is old, but age and passage of time do not necessarily diminish the force or lessen the freshness of its pronouncement. The courts have an inherent power (and duty) to remove an administrator whose appointment is void. McCabe v. Lewis, 76 Mo. 296; In re Allen‘s Estate, 307 Mo. 674, 271 S.W. 755; see Ross v. Pitcairn, Mo., 179 S.W.2d 35; and In re Ford, 157 Mo.App. 141, 137 S.W. 32, 36. And it is our conclusion that a contingent debtor of the estate has a pecuniary interest which gives him sufficient standing in court to present such invalidity of appointment by motion for revocation.
We have said that (if the appointment was void) the appellant has the (basic) pecuniary interest in the subject to give him standing in court so that he may attack such appointment. There remains to be considered whether he has that interest (“appealable interest“) which is required in order to appeal from an adverse order. The question arises because of the definition of “interest” made in
This statute has come in substantially the same words through the revisions since 1845.
“`Interested persons’ means heirs, devisees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered. This meaning may
vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved.”
Sections
Extending the broad reasoning of Graves, C. J., in In re McMenamy‘s Guardianship, 307 Mo. 98, 270 S.W. 662, loc. cit. 669:
“Since the opinion of Gantt, J., in Coleman‘s Case, supra [Coleman v. Farrar, 112 Mo. 54, 20 S.W. 441], the right to have an appeal (unless it is expressly prohibited by law) from any final judgment or order made by probate court has never been denied by this court, but, on the other hand, fully sustained under section 2436, R.S.1919. Leahy v. Mercantile Trust Co., 296 Mo. [561] loc. cit. 600, 601, 247 S.W. 396. It matters not whether such final judgment or order is in the estate of an insane person, or in some other branch of probate jurisdiction.”4
it could well be argued (although we do not find it necessary to so hold) that since, as heretofore stated, appellant might have basic interest sufficient to give him standing as a litigant, and since neither
In construing these statutes we must of course attempt to ascertain the intention of the legislature (Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122) and to determine (and promote) the object and purpose of that intention from the words used in the statute (Browder v. Milla, Mo. App., 296 S.W.2d 502). In so doing we must, if possible, give effect to every word, phrase, clause, and sentence of the section. Pree v. Board of Trustees, 363 Mo. 1131, 257 S.W.2d 685. And we must also put together and harmonize, if possible, all sections which are related to the same subject. Bredeck v. Board of Education of City of St. Louis, Mo.App., 213 S.W.2d 889. The entire legislative act must be considered. McCord v. Missouri Crooked River Backwater Levee Dist., Mo., 295 S. W.2d 42. In this connection we may consider the historical development of the legislation. State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399, 405. For the new legislation must be construed and applied consistently with the construction placed upon the related parts of the general law. See Fiske v. Buder, 8 Cir., 125 F.2d 841, 845. And “in the construction and application of a statute, we must harmonize the same, if possible, with the established law existing at the time of enactment unless there is a conclusive implication, or an expressed intent to repeal the old and enact a new.” Mayes v. Mayes, Mo.App., 104 S.W.2d 1019, 1023.
One of the cardinal principles, however, which pervades and hovers over all canons of construction is that statutes providing for appeal are to receive a liberal construction. State ex rel. Jones v. Davis, 240 Mo.App. 411, 216 S.W.2d 155; West‘s Missouri Digest, Appeal and Error, 1 and 2. And where a doubt exists as to the right of appeal it should be resolved in favor of that right. Mullin v. Trolinger, 237 Mo.App. 939, 179 S.W.2d 484; In re Switzer, 201 Mo. 66, 98 S.W. 461, 464. It has been said many times that the right of appeal was not inherent under the (old) common law; yet the judicial arm of society has been diligent to see that, wherever possible, those who have a good faith interest in the proceedings will not be denied a review.
In
As we have heretofore noted, this statute, as was the case in previous
Our conclusion is that (assuming the appointment to have been void) the appellant was an interested person under a liberal interpretation of sections
The appellant has urged that the case be reversed with directions to revoke the letters of administration. The case is here because of an order of the circuit court dismissing an appeal which had been taken from probate court. That appeal was dismissed on the theory that plaintiff did not have an interest in the subject matter. Obviously this judgment of the circuit court was not a determination of the merits of the controversy but was a denial of a right to present the merits for determination. True, we have said that whether the appellant has an interest depends upon whether the probate court
As to the ultimate question, we think both sides should have an opportunity to develop the issues to the fullest. As illustration of what we mean (although we do not wish to express any suggestion or present opinion on the ultimate question of jurisdiction), there is a question of whether or not the probate court found the facts of its own jurisdiction and the recitals in the order and letters were the result of a determination of the fact in pais, or simply the product of inadvertence.7 There may be other matters which might be pertinent to the ultimate question of jurisdiction of res and power to make the appointment which have not been developed.8 Trotting alongside the jurisdictional question, but in single harness, is the contention of appellant which raises the broad question of public policy in regard to whether the courts of this state will permit themselves to be burdened by proceedings by a nonresident solely for the purpose of accomplishing the object of prosecuting a suit in yet another state. These questions we do not wish to decide upon the skimpy record before us.
We therefore reverse the judgment dismissing the appeal and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.
STONE, P. J., and McDOWELL, J., concur.