6 Mo. 563 | Mo. | 1840
Opinion of the Court by
The county court of St. Louis county on the 10th day of June, in the veer 1840, granted to Muilanphy letters of administration on the estate of Andrew J. Davis, and on the next day, to wit: on the 11th day of June, the court revoked those letters. Muilanphy prayed an appeal which thecoun
On this return being made by the county court, Mullan-phy moved the circuit court for a mandamus to the county court commanding that court to grant him an appeal. The circuit court overruled the motion and entered up Judgment against Mullanphy. The act of ‘22 December 1836, provides that a mandamus shall go to the county court from the circuit court in the first instance and on the return of this writ, it shall be lawful for the person suing or prosecuting such writ to plead to &c. and on obtaining a judgment a peremptory mandamus shall go &c. A mandamus is a writ of the Stale which should run in the name of the State, see I9th section of the 5th article of the constitution. The county court then being brought in by mere rule of court;
By the 8th section of the 1st, article of the act respecting executors and administrators, it is provided, that letters of administration shall be granted first to the husband or wife, or to those who are entitled to the distribution of the estate, or to one or more of them, as the court or clerk in vacation shall believe will best manage or improve the estate, section 6th.' If no such person apply for such letters within sixty days after the death of the deceased; letters may be granted to any person whom the court or clerk in vacation may consider most suitable, 7th, section. The county court or clerk in vacation, on the application of any person interested, may issue a citation to the persons entitled to administration, calling on them to administer, and if they fail to take letters within thirty days after the service of the citation,' of if the persons entitled to preference, file their renunciation thereof in the county court, letters of administration shall be granted to the person next entitled thereto, see pages 41-2 of digest of 1835.
It was a most unwarrantable act in the county court to grant letters of administration to a stranger, as Mullanphy appears on this record, before the lapse of sixty days from the death of the intestate, or before the other requisitions of the statute above stated had been complied with. But he contends that non constat but the requisitions of the statute have been complied with, or that he is entitled to distribution, and that the county court having once granted him letters of administration must he supposed to have done their duty and to have taken care that the requin .ion of the statute had been complied with, that is to say, it is to be presumed that the county court ascertained before the grant either that those entitled to distribution had filed their renunciation in writing, or that Mullanphy was one of those so entitled. To this it may be ausvvered that as the grant was made within sixty days, the reasons why it was made to him ought to be shown, iii order to entitle him to any fa-
For the reasons above given the judgment of the circuit court ought to be affirmed, and the other members of this court also being ©f that opinion it is accordingly affirmed;