McCabe v. Lewis, 76 Mo. 296

McCabe v. Lewis

76 Mo. 296 | Mo. | 1882

Lead Opinion

Henry, J.

On the 24th day of March, 1873, Henry Gambs, then public administrator of the county of St. Louis, gave notice in writing to the probate court of said county, that he had taken charge of the estate of ¥m. J. Maynard, deceased, for the purpose of administering thereon. On the. 1st day of May, 1873, he filed an inventory showing that the only assets of said estate was a suit pending in the circuit court of said county, to-recover of the executor of Catharine O. Long, deceased, the money and assets of said Maynard, who died in the city of New Orleans, state of Louisiana, in December, 1867. On the 5th day of June, 1871, Isaac Bushell qualified as executor of the last will of said Catharine 0. Long, who died in April, 1871, and on the 10th day of March, 1874, he filed a motion in the probate court of St. Louis county to set aside the appointment and revoke the letters of administration granted to said public administrator on Henry Maynard’s estate, on the following grounds: 1st, That Maynard’s estate had been- fully administered. 2nd, Because there were no assets of said estate in said county. 3rd, Because the only purpose of the pretended administration was the prosecuting of vexatious proceedings against the estate of Catharine Long. 4th, Because there are no creditors and no known heirs of said Maynard, except Catharine Long. 5th, Because said administration was useless, vexatious and illegal; the letters improvidently granted; without and contrary to law; and such administration can only serve to sanction vexatious and champertous litigation.

*301On the hearing, it appeared that a suit was pending in the circuit court against Bushell, as executor of Catharine O. Long, on behalf of said public administrator, to-recover assets of the estate of Maynard alleged to have been converted to her own use by said testatrix; that a claim had been filed in the probate court against the estate of Maynard by a creditor of said estate, which-originated after the death of Maynard, and after the administration of his estate was closed in the state of Louisiana; that-pending the motion in the probate court, G-ambs resigned his office and Lewis succeeded him, and the suit in the circuit court and the motion in the probate court were revived, the one in his name and the other against him; that McCabe, on resignation of Bushell, was appointed administrator with the will annexed of Mrs. Long; that Maynard died intestate in the state of Louisiana, of which he was a resident, and Catharine O. Long, who was reputed to be his wife, administered on his estate, and that the administration in that state had been settled and closed ; that the property which is the subject of the suit instituted by the public administrator against the executor of C. O. Long,, was never in the State until brought here by C. 0. Long, who, after she came to Missouri, intermarried with one-. Long, and it is not claimed that there is or has ever been any other property of said Maynard’s estate in the county" of St. Louis.

The motion in the probate court was overruled, and the judgment of that court was successively affirmed by the circuit court and the court of appeals, and the cause is here on appeal from the latter court.

1. courts • power íwnOTeraors: aed-ministration. It is contended that there is no statutory provision authorizing the probate court, upon a mere motion, to remove aü administrator, or revoke his letters, f°r either of the causes above stated. This may be conceded, but it is an inherent power in every judicial tribunal to correct an error which it may have committed when no positive rule of law forbids it. *302If the probate court had no jurisdiction of the Maynard estate, to say that it could not arrest the administration entered upon by the public administrator, with or without an order of court, would be to compel that court to proceed with the administration, and from term to term, make orders of record therein of no validity or force whatever. If that court should order the public administrator to take charge of an estate, and afterward become satisfied that the estate was not in such condition that the probate court had jurisdiction of it, could it be maintained that the court is powerless to set aside such order, and must continue such administration, thus improperly and illegally assumed ?

2. the public administbatoe. "While the public administrator is, in some respects, independent of the probate court, he is not, with respect to proceedings in that court in the administration of estates. The court has jurisdiction to determine all questions arising in the progress of the administration, as well its own jurisdiction over the estate, as any other question; and while the public administrator may, in the first instance, act on his own judgment in taking charge of an estate, his determination is by no means final and conclusive of the question of his authority to do so.

3. -. The only remaining question of any consequence, is whether on the above facts, the probate court was authorized to order the public administrator, or he, without such order, was authorized, to administer on Maynard’s estate ?

The statute in force when the public administrator took charge of the estate, (§ 8, Wag. Stat., 122,) provides that: “ It shall be the duty of the public administrator to take into his charge and custody the estates of all deceased persons in his county in the following instances : 1st, 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; 2nd, When persons die intes*303tate without any known heirs; 3rd, When persons unknown die, or are found dead, in the county ; 4th, When money, property, papers or other estate are left in a situation exposed'to loss or damage, and no other person administers on the same. 5th, When any estate of any person who died intestate therein, or elsewhere, is left in the county, liable to be injured, wasted or lost,.when said intestate does not leave a known husband, widow or heir in this State; 6th, Where, from any good cause said court shall order him to take possession of any estate to prevent its being injured, wasted, purloined or lost.”

No subdivision of that section can by any reasonable construction apply to this case. The fourth, fifth and sixth are the only provisions, which by any possible construction, can apply, and the whole scope of the section precludes any interpretation which would authorize administration in this case. The introductory clause of the section restricts the authority of the public administrator to administration of estates of deceased persons in his county, and gives authority only in the cases mentioned in the succeeding subdivisions, and is a key to the construction of each of them.

The fifth did not authorize the interference of the public administrator, because, at his death, Maynard left no property in St. Louis county. On the public administrator’s theory, the property in controversy was brought into the county of St. Louis by Mrs. Long, and if the statute were susceptible of the construction which would embrace such property, the same rule of construction would sanction an interpretation which would exempt the property from the operation of the statute, because his widow was in the county; and it may with the same propriety be said that he left a widow, as that he left property in the county, for both the widow and the property came into this State after Maynard’s death.

The fourth and sixth subdivisions also evidently relate to property in the county at the death of the intestate, left *304in a situation in which it may be injured or wasted by exposure, or by trespassers, or purloined or lost, and no other person administers.

4.-• The property in question came to the hands of Mrs. Long in Louisiana, and her failure in that state to inventory it, if it was the property of the estate, was a breach of duty, and rendered her and her securities liable on her bond, to creditors and heirs. It was her duty to inventory all of the estate of the deceased. Failing to do so, and converting the property to her own use, any creditor or distributee may have his suit against her or her estate, but it is no ease for an administration de bonis non. To tolerate such proceeding would convert our probate courts into detective tribunals. Any property, temporarily in this State, in the possession of one who having fully administered an estate in another state, had fraudulently ■ appropriated it to his own use, could be seized by the public administrator under the pretense of administering on the estate. Our statute has no such scope, and the administration in another state which has been closed, cannot m this manner, in this State, be re-opened, on the allegation of fraud against the former administrator. There is no necessity for such administration, because the former administrator may be sued here, on such facts as were disclosed in this proceeding, without the intervention of an administrator de bonis non.

For the above reasons we are forced to a conclusion different from that reached by the court of appeals, and, therefore, reverse the judgment and remand the cause, with directions that such orders be made on the motion in the probate court as will revoke the authority claimed by the public administrator and stay all further proceedings in the administration of the estate of said Maynard.

Hough and Rat, JJ., concur; Sherwood, C. J., and Norton, J., dissent.

Dissenting Opinion

Sherwood, C. J.,

Dissenting.—Section 8, article 9, *305chapter 2, Wagner’s Statutes, page 122, mentions five instances in which it is made the duty of the public administrator to take charge of the estates of deceased persons. These instances are.entirely independent of, separate and distinct from, the 6th subdivision of the same section when it becomes his duty to take possession of any estate, when • the probate court gives him an express order to that effect. Section 13 of the same article fully confirms this view, since it requires the public administrator immediately upon taking charge of any estate (“ except those of which he shall have taken charge under the order of the proper court,”) “ to file a notice of the fact in the office of the clerk of the court having probate jurisdiction.” This section abundantly shows that in the five instances mentioned in section 8, it is the independent duty of the public administrator without any order of the probate court to take charge of a decedent’s estate; and that in those instances no order of court is at all necessary. This view of the statute accords also with the case of Adams v. Larrimore, 51 Mo. 130, where it is held, when discussing sections 8 and 13, supra, that “the statute authorizes the public administrator to act, and confers the jurisdiction independent of the notice. The notice should be filed unquestionably; but it does not give any jurisdiction, authority or power, and its omission will not invalidate the acts of the administrator.”

It would seem from a consideration of the case just cited, as well of the sections mentioned, that “jurisdiction ” is as fully conferred upon the public administrator, by the five subdivisions of section 8, supra, to take charge of an estate, as it is conferred by the 6th subdivision of the same section, on the probate court, to make an order requiring that this be done. And I think the facts in this case warranted the action of the public administrator, at least so far as to make that action prima facie correct, in taking charge of the estate of Maynard. And this should be sufficient to prevent the motion in the present case from *306being successful, irrespective of any other consideration, even if it be granted that the probate court has the power to revise the action and to interfere with the discretion which the law in its wisdom has conferred upon and confided to a public administrator, in order that the property of decedents upon which no other person administers, may not be “ injured, wasted, purloined or lost.” Cases may with ease be instanced where that official has well-founded reasons to believe that property and effects, debts, etc., of a decedent are in such jeopardy as the statute evidently contemplates. True, there may be no tangible property in sight, none that he can lay his hands on; but if he be reasonably satisfied that there is such property, the statute calls upon him to act, and when at the promptings of what he considers his duty, he does act, he does take charge of the estate of a decedent, he being a public officer, the presumption will prevail that his official action is correct. As a matter of course, whether there be any estate of the decedent will often depend upon the outcome of a suit which the public administrator brings, and which section 16 of the article heretofore referred to, requires him to bring, to recover “ the property, debts, papers or other estate of the person deceased.” Certainly the statute, neither in letter nor spirit, contemplates that a public administrator having taken the steps indicated, should be stopped in mid-career by the mandate of the probate court, before it can be ascertained, as the result of the suit he institutes, whether or not there is any property belonging to the estate of the decedent. Any other construction of the statute would many times make the purloining of the estate an easy matter, and shorten the arm of remedial justice.

Again, we find no provision of the statute authorizing a motion such as the plaintiff has filed, even if we concede that section 9, page 122, of the same chapter, is applicable to public administrators. Section 36, page 75,1 Wagner’s Statutes, provides for revoking the letters of private administrators, but none of the grounds specified m that *307section for such revocation, appear in the present motion, nor is that “ motion supported by affidavit.” And it is settled law that though probate courts possess a certain original jurisdiction as regards matters of administration, yet that jurisdiction can only be exercised in the manner prescribed by the statute. Powers v. Blakey, 16 Mo. 437. In every light then in which I regard this case, the judgment which was for the defendant in the probate court, and likewise in the circuit court, and the court of appeals, should be affirmed.

Eor these reasons I must dissent from the majority opinion.

Norton, J., concurs with me.