8 S.W.2d 905 | Mo. | 1928
This is an appeal by Maud Harden, Fred Moll, a minor, Alma Moll and Robert Moll from an order of the Circuit Court of the City of St. Louis striking from the files their motions to vacate and revoke the appointment of Philip Pollack as receiver to take charge of the real estate of the deceased, Frederick Moll, pending a will contest. Frederick Moll died testate September 3, 1922, naming Philip Pollack executor of his will. The estate consisted of personal property valued at $18,000, and real estate valued at about $132,000. The annual gross income from the real estate is about $10,000, and the debts were less than $5000. He gave to his nephews, nieces and others various sums, amounting to $20,500, and divided the remainder of the estate between Fred Moll, a grandson, and Seigfried Pollack, a son of Philip Pollack. The will was admitted to probate in the Probate Court of the City of St. Louis September 6, 1922. Pollack qualified as executor and obtained an order from the probate court directing him to take charge of the real estate and to rent or otherwise employ the same for the purpose of providing funds for the payment of legacies. He took charge under said order October 18, 1922, and proceeded to rent the real estate for said purpose.
On July 26, 1923, Fred Moll, by his curatrix, Maud Harden, instituted a suit in the Circuit Court of the City of St. Louis against Seigfried Pollack, Philip Pollack, Ethel Seibert et al. to contest the will. On July 27, 1923, Pollack was notified that on July 30, 1923, an application would be made to the probate court for the appointment of an administrator pending the will contest. Thereupon, Ethel Seibert, daughter of Philip Pollack and a legatee under the will to the amount of $1000, immediately instituted this independent proceeding in the Circuit Court of the City of St. Louis against the other legatees and Maud Harden, curatrix. The petition prayed for the appointment of her father, Philip Pollack, as receiver to take charge of the real estate pending the will contest. The case was assigned to Division 14 of the Circuit Court of the City of St. Louis, presided over by His Honor, Judge A.F. Ittner, who is admitted to be a personal friend of Philip Pollack. Immediately upon the filing of said petition and without service upon or notice to defendants, the court entered an order of record appointing Philip Pollack receiver, and approved his bond in the sum of $10,000. A copy of said order was served upon defendants about July 30, 1923. On August 1, 1923, defendants Maud Harden and Fred Moll entered their appearance in said cause and filed their answer, which challenged the jurisdiction of the circuit court to appoint a receiver. On the same day they *1109
filed a motion to revoke the order appointing a receiver and to award defendants a hearing, which motion challenged the sufficiency of the petition, the jurisdiction of the court to make the appointment, and the qualifications of Philip Pollack because of interest. On August 2, 1923, the defendants Alma Moll, Robert Moll, Emma Paust and Bernice Lehman filed a like motion. On September 10, 1923, Otto Hampe, Public Administrator, was appointed administrator pendente lite under his official bond. On December 10, 1923, the probate court set aside this order and appointed Hampe administrator pendente lite, fixing his bond at $25,000, which bond was given and approved. On September 18, 1923, Hampe, as administrator pendente lite, and Maud Harden, curatrix, filed an application in this court for a writ of prohibition commanding the judges of Division 14 and each of them to desist and refrain from further proceeding on, with or under the court's order appointing said receiver. Our preliminary rule was ordered to issue. In that case we held the circuit court had jurisdiction to appoint the receiver. Peremptory writ was denied on June 5, 1924. [State ex rel. Hampe v. Ittner,
It will not be necessary to set forth the evidence adduced and the facts agreed upon on the hearing of the motions of defendants to revoke the appointment of a receiver.
The case of Fred Moll et al. v. Seigfried Pollack et al., to contest the will was, in due course, assigned to Division 3 of the Circuit Court of the City of St. Louis. On June 21, 1924, a jury returned a verdict, finding the paper writing in evidence was not the last will of Frederick Moll, deceased, and judgment was entered thereon. Defendants appealed, and we affirmed the judgment in an opinion by DAVIS, C.,
I. Respondent contends that no appeal lies from the order of the court sustaining her motions to strike from theAppeal: files the motions of appellants to revoke the orderMotion to appointing a receiver, citing Section 1469, RevisedStrike. Statutes 1919.
A similar question was ruled in Blemel v. Shattuck (Ind.), 33 N.E. l.c. 279, where it is said:
"Then the motion of appellees to strike out appellants' motion to set aside the commissioners' report was superfluous motion, as was said by this court in White v. D.S. Morgan Co.,
The motions to strike and the motions to revoke were, by the court, considered together. Appellants appealed from the order of the *1111 court striking from the files the motions to revoke. This is equivalent to an appeal from an order of the court overruling the motions to revoke, for the court by sustaining the motions to strike overruled the motions to revoke.
In this connection respondent contends appellants limited their assignment of errors to the actions of the court on the motions to strike. Even so, the assignment covers the overruling of appellants' motions to revoke, for by sustaining respondent's motions to strike, the court overruled appellants' motions to revoke. In addition, appellants assign as error the refusal of the court to revoke the order appointing a receiver. The contentions are overruled.
II. As stated, we held in the Hampe case the circuit court had jurisdiction to appoint a receiver. Respondent contends our decision in that case determined the question and thatSecond it is not now open for examination. Appellants contendAppeal: the decision was wrong and the question should beStare re-examined. Is the question open for consideration onDecisis. this appeal? While the Hampe case was an original proceeding in this court, we will treat the decision in that case as a decision of this court on a former appeal. In ruling the question we cited, as sustaining the decision in said case, Section 1449, Revised Statutes 1919; Abramsky v. Abramsky,
Section 1449 is as follows:
"The court, or any judge thereof in vacation, shall have power to appoint a receiver, whenever such appointment shall be deemed necessary, whose duty it shall be to keep and preserve any money or other thing deposited in court, or that may be subject of a tender, and to keep and preserve all property and protect any business or business interest entrusted to him pending any legal or equitable proceeding concerning the same, subject to the order of the court."
This statute has no application to the estates of deceased persons in the custody of the probate court for the purpose of administration. By Section 34, Article VI, of the Constitution probate courts are given exclusive jurisdiction over all matters pertaining to probate business. If the statute authorized the appointment of a receiver under the facts in the instant case, it would be violative of this section of the Constitution.
The Abramsky case was an action for an accounting and prayed for a restraining order and the appointment of a receiver pending the litigation. The jurisdiction of the court over the proceeding was not questioned. The sufficiency of the petition and the fitness of the *1112 person appointed to act as receiver were the only questions for review.
In the Davis case it was held that priority of service rather than the time of the institution of suits determined the jurisdiction in divorce suits instituted by a husband and wife against each other in different courts.
The Wurdemann case was an action under Section 168 et seq., Revised Statutes 1919, to enforce a contract made with a decedent for the purchase of land. It was begun in the probate court and transferred to the circuit court. We held if specific performance was enforced, the land in question would be no part of the estate of the deceased, and that the rents and profits of the real estate from the time the contract should have been performed belonged to the purchaser; and until the rights of the purchaser had been determined by the circuit court it could not be deprived of its jurisdiction to adjudicate the controversy and to render a judgment which would afford full and adequate relief to the purchaser. Thus, it appears these cases and the statute do not sustain our decision in that case. We did not rule correctly.
In the case of Murphy v. Barron,
"The decision on the former appeal is not res adjudicata in the full sense. It is not a judgment from which the court cannot legally depart on the second appeal in the same case. Under the decisions in this State it is not an absolute and final determination of all matters decided of such inexorable force that the court must adhere to it on this appeal at all events and whether it be right or wrong. The general rule is that matters decided on one appeal will be considered settled on a second appeal in the same case, unless exceptional circumstances call for a re-examination of them."
The exceptional circumstances are stated in Mangold v. Bacon,
"Whether from grace or right, when cogent and convincing reasons appear, such (1) as lack of harmony with other decisions and where no injustice or hardship would flow from a change, or (2) where by inadvertence principles of law have been incorrectly declared the first time, or (3) mistake of fact has been made, or (4) injustice to the rights of parties would be done by adhering to the first opinion, then the exceptions to the rule have play and it is our duty to re-examine and correct our own errors on the second appeal in the same case."
The appellants are seeking a reversal of the judgment appointing a receiver. The respondent and the other legatees are no longer interested in the estate, for it has been judicially determined that the paper writing admitted in evidence was not the will of Frederick *1113 Moll, deceased. Therefor, no injustice to the rights of the parties would follow a re-examination of the question. The only person interested in the result of this review is the receiver. His interest is a question of fees and is only an incidental interest. In addition, the question first reached this court in the Hampe case, and we should make haste to correct the error. In that case the learned Commissioner stated that the appellants in the instant case "had the legal right to appeal from an order appointing said receiver, and having failed to do so were not entitled to maintain this action." This is a misstatement, for the defendants did appeal from the order appointing a receiver, and we are, in the instant case, reviewing said order. The former decision comes within the exceptions, and we should re-examine the question.
III. We next consider the contention of appellants that the circuit court had no jurisdiction to appoint aReceiver: receiver for the reason the probate court hadPower to exclusive jurisdiction over the real estate during theAppoint. administration of the estate of Frederick Moll, deceased.
The jurisdiction of probate courts is fixed by Section 34 of Article VI of the Constitution, as follows:
"The General Assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge, who shall be elected. Said court shall have jurisdiction over all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians and the sale or leasing of lands by administrators, curators and guardians; and also jurisdiction over all matters relating to apprentices: Provided, That until the General Assembly shall provide by law for a uniform system of probate courts, the jurisdiction of probate courts heretofore established shall remain as now provided by law."
In Scott v. Royston,
"From the allegations and prayer of the bill, it is obvious that the pleader intended to and does seek equitable relief, hence the question arises whether or not a court of equity has jurisdiction to entertain the bill on the facts stated. It is determined and abundantly supported by both principle and authority that a court of equity will not assume jurisdiction of a claim against an estate of a deceased person *1114
until it has been made to appear that the probate court cannot afford the requisite relief. [2 Woerner's Law of Administration, 815-816; 1 lb., p. 356; Adams v. Adams,
In the Scott case, after reviewing all the authorities, we stated:
"Whatever may have been the chancery practice prior to the adoption of our present system of probate laws, since then we are clearly of the opinion that the circuit courts of the State have no jurisdiction whatever over any matter pertaining to probate business, except in rare instances, as before indicated. The jurisdiction over all such matters is given to the probate courts by the Constitution and laws of this State. Said courts are courts of record and they have exclusive original jurisdiction within their respective counties in all cases arising under the general laws of the State relating to the administration of estates and to all matters pertaining to probate business.
"We are, therefore, of the opinion that the Circuit Court of Daviess County had no jurisdiction or authority over the subject-matter of the suit of Robie Scott et al., ex parte, filed therein on February 4, 1885, praying for an order to sell the real estate of Andrew J. Scott, deceased, for the purpose of paying the debts of the estate. That authority rested exclusively with the probate court of that county."
With this understanding of the jurisdiction of probate courts, we next direct attention to the following sections of the Revised Statutes 1919:
"Sec. 13. If the validity of a will be contested, or the executor be a minor, or absent from the state, letters of administration shall be granted during the time of such contest, minority or absence to some other person, who shall take charge of the property and administer the same according to law, under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator when qualified to act. *1116
"Sec. 129. No administrator or executor, except an executoracting under power conferred by will, shall rent or control the real estate of the deceased, unless the probate court having jurisdiction shall be satisfied that it is necessary to rent said estate for the payment of debts, and make an order of record requiring such administrator or executor to take possession of and rent the same for a period of not exceeding one year; and upon such order, such executor or administrator may prosecute and maintain any action for the recovery of such real estate in the same manner and with like effect as the testator or intestate might have done in his lifetime: Provided, however, that the court at the time of making any such order shall require the administrator or executor to enter into and file, to be approved by the court, a good and sufficient bond in double the amount of any sum that may come into the hands of the administrator or executor under such order of the court."
We quote the following statutes to show the trend of legislation with reference to the authority of the probate courts over the real estate of the deceased:
"Sec. 130. Whenever letters of administration or testamentary shall have been granted on an estate, and it shall appear to the court or judge in vacation, that the decedent died possessed of real estate in the state, and his heirs or legatees have failed to take charge of same, or the identity or whereabouts of such heirs or legatees are unknown, then the court or judge in vacation may on its or his own motion, or that of any party interested, direct the administrator or executor in charge of said estate, to take charge [of] and manage the real estate, until such time as such heirs or legatees shall appear and petition the court to turn the management of said real estate over to them, or until the same shall escheat to the state as is provided by the `escheat act.'
"Sec. 131. When any house, outbuilding, fence or other improvements on the real estate requires repairs, the court may, on the application of any person interested, order the executor or administrator to cause the necessary repairs to be made, whenever such repairs can be done without prejudice to the creditors.
"Sec. 132. The sale and conveyance of real estate under a will shall be made by the acting executor or administrator with the will annexed, if no other person be appointed by the will for that purpose, or if such person fail or refuse to perform the trust."
The petition is as follows:
"The plaintiff states that she is a legatee to the extent of one thousand dollars in the last will of Frederick Moll, deceased, and that the defendants are also legatees in various sums under the said will; that on the 14th day of February, 1921, Frederick Moll, now deceased, declared to be his last will and testament a certain instrument *1117 thereafter admitted to probate in the Probate Court of the City of St. Louis, on the 6th day of September, 1922; that on the said 6th day of September, 1922, said instrument in writing was duly proven to be the last will and testament of Frederick Moll, deceased, and thereupon duly admitted to probate in the said Probate Court of the City of St. Louis; that by the said will the said testator, after giving to the said defendants, naming them as legatees, various sums of money, devised all the rest, residue and remainder of his estate between Fred Moll, a grandson of him, the said testator, and Seigfried Pollack, a son of Philip Pollack; that the estate devised by the said last will consisted for the most part of real estate and did not comprise personalty sufficient to pay or satisfy the said legacies provided for and devised to the said legatees defendants herein.
"The said plaintiff further states that after the probate of the said will, Philip Pollack, the executor named therein, obtained from the Probate Court of the City of St. Louis an order directing him to take possession and assume management and control of the real estate devised and disposed of by the said will and to rent or otherwise employ the same for the purpose of meeting, defraying and paying legacies provided for and devised by the said will and that under such order, to-wit, on or about the 18th day of October, 1922, the said Philip Pollack took possession of such real estate, rented the same for the purposes aforesaid and now is in possession of the said real estate and managing the same for the purpose herein as indicated.
"The said plaintiff further states that on the 27th day of July, 1923, Maud Harden, as curatrix of the estate of Fred Moll hereinbefore named, notified the said Phil Pollack who is named as executor of the said last will of the said Fred Moll, deceased, that on Monday, the 30th day of July, 1923, she would apply to the Probate Court of the City of St. Louis for the appointment of an administrator pending a suit to declare the said last will of the said Fred Moll, deceased, to be void, which said suit has been instituted by the said Maud Harden and is now pending in the said Circuit Court of City of St. Louis, in which said suit, in conformity with the statute for such case made and provided, an administrator pendente lite will be appointed by the said Probate Court of City of St. Louis.
"The plaintiff states further that the real estate devised by the said last will as aforesaid is as follows: [Here follows description.]
"The plaintiff states further that the said real estate will not be needed to be disposed of for the payment of debts, but that it should be suffered to remain under the order heretofore made for the purpose of the payment of legacies; that in the event that the will of the said testator be set aside and adjudged void there will be ample cash *1118 and personal property with and out of which to meet all obligations of the estate of the said deceased, and leave a balance as plaintiff is advised of more than the sum of fifteen thousand dollars.
"Wherefore, the premises considered, the plaintiff prays that by the proper order of the court a receiver may be appointed to take charge of and continue in charge of said real estate pending this suit to avoid the will of the said testator and that the said Phil Pollack, executor under the said will and trustee, and who is at present in charge of the said real estate, may be designated as such receiver, and retain in the possession thereof for the purposes indicated in the order heretofore made in regard thereto."
The authority of the executor over the real estate is set forth in the will, as follows:
"I hereby authorize and direct my said executor to collect the rents and profits of my real estate and to expend the monies to make needed repairs; and with full power to rent, lease or sell any or all of my real estate and to convey the same without obtaining authority from the Probate Court, the authority being hereby granted to do all such necessary acts. My executor is directed to pay the legacies hereinbefore made in such installments as in his opinion will not entail loss to the estate."
In the case of St. Louis National Bank v. Field,
"Under our law, upon the death of an intestate his whole estate, real as well as personal, is liable to come into the hands of his administrator for the payment of his debts. The administrator is not authorized to take possession of the real estate until ordered to do so by the probate court, but when so ordered, and when he takes possession under such order, the land is in custodia legis, and the administrator is liable on his bond for the lawful application of the rents arising out of it. It is his duty to collect the rents, and if so ordered by the probate court pay off the mortgage, if any, on the land, or if the court so order, sell it subject to the mortgage. [Eoff v. Thompkins,
The executor, Philip Pollack, was acting under power conferred by the will when he obtained the order from the probate court directing him to rent the real estate to pay legacies. The court was authorized to make the order, and in doing so assumed and exercised *1119 jurisdiction over the real estate as a part of the estate of Frederick Moll, deceased. The will contest did not oust the probate court of jurisdiction over the estate. [Johnson v. Brewn, 277 Mo. l.c. 397, 210 S.W. 55.]
On October 18, 1922, Pollack took possession of the real estate under said order to rent same for one year. He managed, controlled and rented the real estate until July 27, 1923, at which time he was notified that on July 26, 1923, suit had been instituted in the circuit court to contest the will and that application would be made to the probate court on July 30, 1923, for the appointment of an administrator pendente lite. The institution of the suit to contest the will revoked the right of Pollack to control the real estate. [Johnson v. Brewn, 277 Mo. l.c. 396; Byrne v. Byrne, 289 Mo. l.c. 126,
In the case of In re Estate of Soulard,
"He is to do, while his office lasts, whatever an administrator should do to protect the interests of the estate for those who are entitled *1120 to its benefits. He may sue for and collect its assets, guard the estate in the matter of demands against it; and, if it appears that there will not be sufficient personalty to pay debts, he may apply to the probate court and obtain authority to take possession of the real estate and collect the rents therefrom."
We further said:
"But unless it appears to be necessary to draw the real estate into the administration for the payment of debts, the administrator pendente lite has no concern with it."
We do not agree to this last statement. The learned judge who wrote the opinion overlooked Section 129, Revised Statutes 1919, which provides that an executor acting under the power conferred by will may rent or control the real estate of the deceased.
The failure of the probate court to immediately appoint an administrator pendente lite and to require him to give bond did not give the circuit court jurisdiction to appoint a receiver. No doubt the confusion attending the proceedings in the circuit court delayed the action of the probate court. In due time an administrator pendente lite was appointed and required to give bond for $25,000.
The appointment of Philip Pollack receiver in the instant case was wholly without authority of law, and the order of the court entered of record appointing him as such is absolutely void. For this reason said order is reversed. All concur.