17 Mo. App. 593 | Mo. Ct. App. | 1885
delivered tie opinion of tie court.
Tie guardian of two minor children under sixteen years of age applied to tie probate court to have an allowance set out to them from tie estate of their deceased mother, in the hands of her administrator, under the provisions of sections 107,108 and 110, Revised Statutes. The statute relating to the administration of estates (Rev. Stat., sect. 105 — 109 inclusive) provides for certain allowances to the
It is under the second clause of this section that the present proceeding was instituted. An allowance was made by the probate court, and the administrator appealed to the circuit court. The question for decision was presented to the circuit court upon the following agreed statement of facts :
“ It is hereby stipulated by the parties hereto, that the testimony in the above entitled cause would show, that Henry Porter, the father of plaintiffs, died a resident of the county of St. Louis, on or about the 8th day of July, 1883, leaving a will, which was duly admitted to probate by the probate court of St. Louis county, on the 16th day of July, 1883; that his widow, Amanda Porter, was named in and by said will as executrix thereof, but that she failed and neglected to qualify as such and in a short time afterwards, to-wit, on the 20th day of September,
£ £ 2d. That the claim of the children for the said allowance must be made against the estate of the father, and ..cannot be made against the estate of the mother.”
Upon these facts, the circuit court entered a decree,
No question is made as to the amount of the allowance^ nor as to the propriety of its being paid entirely in money; but the grounds on which the administrator seeks to support his appeal are:
1. That, at the date of the appointment of the guardian, the children were residents of St. Louis, and consequently that the probate court of the county of St. Louis had no jurisdiction to appoint him to the office of guardian. This position we think is not well taken. Section 2562, Revised Statutes, provides: “If a minor have no parent living, or the parents be adjudged incompetent or unfit for the duties of guardianship, the probate court of the county of the-minor’s domicile shall appoint guardians to such minors under the age of fourteen years, and admit those above that age to choose guardians Tor themselves, subject to the approval of the court.”
Undoubtedly the probate court of a county in which the children did not have their domicile would, not have authority to appoint a guardian for them. — Lacy v. Williams, 27 Mo. 280. But domicile and residence are not always synonymous. A person may have a legal domicile in one place and a temporary residence in another. The domicile of these children was unquestionably in St. Louis county at the time of the- death of their mother ; for the rule is that the domicile of the parents is the domicile of their minor children.. — Lacy v. Williams, supra. It does not appear that the residence of the minors in the city of St. Louis was more than temporary ; and we think it would be going too far to hold that minor children whose parents are both dead lose their legal domicile in the county where their parents lived and died, by the fact of their being temporarily taken and cared for by relatives in another county.
2. The second position of the appellant is that, if the-
We are asked to give damages for a frivolous appeal. We shall not do this; because, for aught we can see, the appeal may have been prosecuted by the administrator in good faith, with the view of protecting the estate in his hands and the sureties on his bond.
The judgment will be affirmed.