Lead Opinion
— The judge of the probate court of Clark county issued a citation to one Leonard Ford, as curator of the estate of Ruth and Mary Baker, minors, commanding him to appear before that court at the following February term and show cause why he should not be removed as curator of that estate, “by reason of your mismanagement of same and your failure to account in your annual settlements, as such curator, for the interest due said estate for money in your "hands as such curator.” This was personally served on the cura
This appears to have been overruled and the cause proceeded to trial before the circuit court.
The only record of the proceedings in the circuit court which we have before us is contained in appellant’s abstract, and that abstract does not set out any of the evidence. It is clearly set out in the record entries that the curator appeared by attorney and in his own proper person and the estate was represented by the probate judge of the county and it is recited in the judgment that the circuit court having heard all the evidence in the case and argument of counsel, and being fully advised ordered and adjudged that the judgment of the probate court be in all things sustained and confirmed, and “that the appointment of said Leonard Ford as curator of the estate of Ruth and Mary Baker, minors, be revoked and such appointment is hereby revoked accordingly and said Leonard Ford removed from his trust as such curator.”
These motions were overruled, exception saved and a,ppeal duly perfected by the curator to this court.
The assignments.of error here are to the action of the circuit court in overruling the demurrer; that no affidavit, bill or complaint was filed in the. cause; that the court was without jurisdiction to hear and determine any charge or complaint until the curator was notified, of what charges were made against him; that no complaint verified by affidavit has been filed and no specific charge
The sole question therefore presented for our determination is one of power in the probate court, on this' citation, to remove this curator. If it had that power, all inquiries by us into the question of the correctness of its action, and of the action of the circuit court confirmatory thereof, is precluded by the finding and judgment of that court, by reason of the absence from the abstract of the evidence. We are bound to assume that the circuit court had before it evidence warranting its finding and judgment. We are advised by the record before us of the issue of and recitals in the citation; of the fact that the curator was duly served with the citation; that he appeared in obedience to the citation, both in the probate court and afterwards on appeal in the circuit court; that he pleaded to it; that he went to trial upon the allegations contained in the citation; that witnesses were produced by both parties and were heard in behalf of appellant; that at the conclusion of the hearing the trial court found that the charges made in the citation were sustained; that the circuit court thereupon entered up a judgment sustaining and confirming the finding of the probate court and revoked the appointment of the curator. As the circuit court is a court of general jurisdiction, all presumptions are to be indulged in to sustain its judgment, arrived at in a cause within its jurisdiction. When this cause came to it on appeal from the probate court, it proceeded thereon with all the powers of a circuit court in a case before it. In a sense the circuit . court is not an appellate court in these cases of appeals from the probate court. While the case goes to the circuit court from the probate court on appeal, and while the circuit court in such appeal has no jurisdiction over the subject-matter of the cause appealed save that which the probate court itself had, when the case reaches the circuit court, it proceeds in it de novo, as a cause within its own jurisdiction; and its proceedings and its judg
That the probate courts of our state have sole original jurisdiction over the appointment and removal of guardians and curators is beyond question. They are courts created by the Constitution itself. [See section 34, article 6, Constitution, Missouri.] The Constitution, in express terms, provides that they shall be courts of record, shall have jurisdiction, among other subjects, over all matters pertaining to the appointment of guardians and curators and minors and settling the accounts of curators and guardians. Our statute, section 3845, Revised Statutes 1909, repeats the constitutional provision that they are courts of record, and section 4056 is but a reiteration by the legislative branch of the government of that which the people had said in and by the Constitution, namely, that the probate courts should have jurisdiction over all matters pertaining to probate business, the appointment of guardians and curators of minors and settling their accounts. Article 17, chap. 2, of our statutes of 1909, chap. 34, of the revision of 1899, relates to guardians and curators of minors and gives jurisdic
Turning to the chapter concerning administrators, we find various causes for the removal of the administrator. Thus, section 18, formerly section 10, of the revision of 1899, provides for revocation of the letters of administration when the executor or administrator shall become a non-resident, and it provides that when
In section 29, Revised Statutes, 1909, section 21, Revised Statutes 1899, it is provided that the probate court or the judge, or even the clerk, in vacation, shall take special care to take as surety on the bonds of executors or administrators men who are solvent and sufficient, and it is made the duty of the judge, annually, to examine the bonds of executors and administrators, guardians and curators on file in his office, “and if, upon examination thereof, he shall have good reason to believe that any security has become a nonresident of the state or county, or has died or become insolvent, the judge thereupon shall make an order that said executor or administrator give another bond to the satisfaction of said judge or court, five days’ previous notice of such intended order first having been given to said executor or administrator; and upon failure to give such bond within ten days after such order shall be made, the judge may make an order revoking his or her letters, and their authority from that time shall cease.”
Section 50, of the Revised Statutes of 1909, which is section 42 of the Revised Statutes of 1899, as amended in 1909 (Acts 1909, p. 92), provides that if any executor or administrator becomes of unsound mind, etc., or in anywise incapable or unsuitable to execute the trust reposed in him, or fail to discharge his official duties, or waste or mismanage the estate, or act so as to endanger any co-executor or co-administrator, or fail to answer any citation and attachment to make settlement, “the court, upon complaint in writing made by any person interested, supported by affidavit and 10 days’ notice given to such executor or administrator, as prescribed in section 280 of this chapter, shall hear the complaint, and, if it finds it just, shall revoke the letters
It has been held by this court in Meriwether v. Block, 31 Mo. App. 170, that speaking generally, proceedings under what is now section 50 of our statutes, that “judgments and decrees of probate courts having exclusive jurisdiction of any particular question touching the administration of estates of decedents are mostly in the nature of proceedings in rem, and as such conclusive against all the world. Where the matter is exclusively a private litigation the judgment or decree may have the force only of a judgment at common law in personam, but where it affects the control or management of the entire estate the rule is necessarily otherwise (citing cases). In the case at bar the question was one which affected the care and custody of the entire estate, and, therefore, necessarily in the nature of a preceding in rem,” and that if the executor is removed on complaint of any party interested, such removal, in the absence of fraud, is binding on all the world as a final adjudication of the fact that there was good ground for his removal. This is in effect saying that it is immaterial on whose complaint the removal is made; the fact of removal is the important and conclusive fact. It is further held in Stevens v. Larwill, 110 Mo. App. 140, l. c. 149, 84 S. W. 113, that the proceeding under this section is equitable in its nature and that the whole matter of removal rests primarily in the discretion of the probate court. Many authorities are cited by the Kansas City Court of Appeals in that case in support of these propositions, among others Whaley v. Whaley, 50 Mo. 577. In that case Judge Wagner, delivering the
It is broadly, even somewhat loosely said in some of the cases, that the probate courts are not courts of equitable jurisdiction. That is only true as to their original jurisdiction. In their procedure in and concerning the management of estates by guardians, curators, administrators and executors, and in the exercise of control over these agencies, they act as do courts of chancery. In a very extensive examination of the authorities on this matter, our court has said, in an opinion by Judge Biggs, concurred in by Judge Rombauer and, so far as this point is concerned, by Judge Thompson, In re Estate of Meeker, 45 Mo. App. 186, l. c. 195, that the mode of procedure in matters connected with the management of the estates in the charge of the probate court, “in all of its aspects, is essentially equitable," and that the questions presented are' to be reviewed by us as chancellors.
We are referred to no case and have found none, in which it has been distinctly held that a proceeding for removal of an administrator or curator can be inaugurated, or the removal made, only on complaint of some one interested in the estate.
In the case of King v. King, 73 Mo. App. 78, the Kansas City Court of Appeals, considering the power of the probate courts to remove a guardian, citing what is now section 424, quotes their power of removal as extending outside of the enumerated causes, “or for other good cause," italicizing those quoted words, and holding that under them the probate courts may summarily remove guardians of their own appointment for “any good cause,” likening the power of the probate courts to that of, chancery courts in this respect. It is there said that among causes which have been deemed sufficient for the removal of a guardian are gross and confirmed habits
In re Padgett’s Estate, 114 Mo. App. 307, 89 S. W. 886, Judge Nortoni, speaking for this court, calls attention to the broad scope of power to be found in the words “or for other good cause,” in what is now section 424, and holds that by these words the power of removal is not confined to the failure to supply a good and sufficient bond but extends to and is for other causes. After examining the provisions of the administration law relating to removal of guardians and curators, and meeting the contention that the grandfather was not a party interested within the purview of the statute who could institute the proceeding, Judge Nortoni, speaking for this
It may be argued that if the probate courts have plenary power over administrators and curators, under which those courts can remove them of their own mo-' tion, that there was no necessity for expressing that power by this specific -statute. The answer seems to us evident and conclusive. .Granting that the probate court has the power without this section, there might arise a case in which the probate court did not see cause to put its power into exercise by the isuue of citation, or even to hear the complaint. In such case the statute is or can be invoked. It gives “any person interested” in the estate, the right to make complaint in writing, verified by affidavit, and when that is done the statute commands, proper notice having been given to the administrator or curator, that the probate court “shall hear the complaint, and if it finds' it just, shall revoke the letters granted.” This is as emphatically mandatory as language can be made. The court must proceed. So that the command of the statute to proceed in a certain contingency is no limitation upon the inherent power of the court to proceed in all proper cases and of its own motion. Great wrong and injustice would almost of necessity result if it were otherwise, and if the court could proceed only on the initiative of some “person interested.” The only person interested in the estate might be insane, might be an infant in the literal sense of the word, a year, two or three years old. Persons of this class are possessed of an estate which is in the custody of
The argument for appellant in this case must rest on the contention that it was essential to the jurisdiction of the probate court over the subject-matter that the minors or some one in interest in the estate of the minors must have lodged complaint with the probate judge of the conduct of the curator; in other words, their argument goes to the point that jurisdiction over the subject-matter depends upon who makes the complaint or who raises the question. That seems to us radically unsound. It can make no possible difference on the question of jurisdiction over the subject-matter as to who brings it before-the court, if it is a matter of which the court itself has jurisdiction by virtue of the constitution and laws of this state committing to it the charge and control and management and safeguarding of the estate of minors as well as of deceased persons and persons of unsound mind. That is the subject-matter of their jurisdiction. It is not dependent upon who raises the question. The plain conclusion to be drawn from the Constitution, the statute and the decisions, is, that jurisdiction over the subject-matter of removal of a curator is in the probate court. That is the subject-matter. When it is to be exercised, is discretionary, unless invoked by the sworn complaint of a person interested in the estate. The subject-matter, removal, is' always there. It can only be
We hold that it is so much within the duty of the judges of the probate courts of this state to control and safeguard the estates of minors under their charge, that without complaint of anyone at all, it is within their-power to exercise all those powers vested in them by the Constitution' as well as by the statute, for the preservation and safeguarding of that estate. How the attention of the judge is or was called to the matter of dereliction of duty is entirely immaterial. This curator has been summoned into court by a regular citation, advising him of what he was accused. In answer to that citation he appeared, submitted himself to the judgment and determination of the probate court first, then on his own appeal to the circuit court. He has had his day in court; an opportunity to defend himself. He heard the evidence introduced against him; put in his own. With-
The judgment of the circuit court is affirmed.
Dissenting Opinion
DISSENTING OPINION.
— I respectfully dissent from the majority opinion. The question involved is whether the probate court has power upon mere citation to remove the guardian or curator of a minor for alleged mismanagement of the estate and failure to account in annual settlement for interest due, without any complaint in writing having been made by any person interested. It seems plain to me that the question must be answered in the negative. There are statutory provisions governing the manner of removal for such causes. [Sections 462 and 50, Revised Statutes 1909.] Section 462 provides that such removal may be “in like manner . . . as in the case of an executor or administrator,” which, section 50 provides,, is “upon complaint in writing made by any person interested, supported by affidavit and ten days’ notice,” etc. According to a recognized rule of statutory construction, this express provision as to the manner of such removal includes a negative that it shall be in any other manner. [Ex Parte Joffee, 46 Mo. App. 360.] At least this should be so in the case of a probate court, which is of limited jurisdiction, has only such power as is conferred upon it by statute andisbound to exercise its jurisdiction only in the manner prescribed by statute. [St. Louis v. Hollrah, 175 Mo. 79, 74 S. W. 99;