267 Mo. 412 | Mo. | 1916
This is an appeal from a judgment of the circuit court of the city of St. Louis granting a peremptory writ of mandamus, commanding the probate judge of that city to permit relator to qualify as executor under the will of Martin Stanford Robison, deceased, and to revoke the appointment theretofore made of Edward A. Steininger as administrator with will annexed.
The material facts are as follows:
On March 24, 1911, Martin Stanford Robison, a citizen of the city of Cleveland, Ohio, died, leaving a will, in which Mrs. Sarah C. II. Robison, Mrs. Helene H. R. Britton and relator were named executors. Mrs. Robison and Mrs. Britton were at the time of the death of testator residents of the State of Ohio, while relator was then, and yet is, a resident of the State of Missouri. Immediately upon the death of the testator relator proceeded to the city of Cleveland to attend the funeral, and while there, to-wit, on March 28, 1911, the will was admitted to probate in the county of testator’s residence, and relator, Mrs. Robison and Mrs. Britton duly qualified as executors. On April 6> 1911, relator filed his resignation as executor of the will, and on April 7th the probate court accepted same. Three days after the death of testator, to-wit, on March 27th, letters of administration were granted to Edward A. Steininger by the probate court of, the city of St. Louis, upon the written request of the legatees named in the will, these letters going only to the ancillary administration.
It appears that the greater portion of testator’s estate consisted of property located in Missouri, he being the dominant owner of the stock of a Missouri corporation' owning the baseball club known as ‘ ‘ The
The evidence discloses that at about the same time that relator tendered his resignation to the probate court of Ohio, he also resigned as a director in the Missouri corporation in which the testator’s assets were chiefly invested. It also appears that three days after the death of testator, and before relator resigned in Ohio, he had arranged for his bond as ancillary ex-
At the hearing before the probate court relator testified that some differences had arisen between him and one of the principal legatees, and that he did not desire to be in a position where it would embarrass this party, and that he therefore resigned as executor under the will and as a director of the Missouri corporation, and had entirely severed his connection with the estate. On: April 10th, following his resignation on April 6th, he wrote a letter to Mrs. Robison clearly indicating his intention to have nothing further to do with the management or administration of any part of the estate.
A determination of this question makes necessary an examination of the statutory provisions relating to wills.
Section 19, Revised Statutes 1909, provides: “After probate of any will, letters testamentary shall be granted to the persons therein appointed executors . . . If all such persons refuse to act, or be disqualified, letters of administration shall be granted to the person to whom administration would have been* granted if there had been no will. ’ ’
Section 17 provides: “Letters testamentary and of administration may at any time be granted to any person deemed suitable if the person or persons entitled to preference filed their renunciation thereof, in writing, with the clerk of the court, or if proof be made that no such persons reside in this State.”
Section 50 provides: “If any executor or administrator become of unsound mind, or be convicted of any felony or other infamous crime, or has absented himself from the State for a space of four months, or become an habitual drunkard, 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 failed to answer any citation and attachment to make settlement, the court” (upon written complaint and after notice and hearing) ‘ ‘ shall revoke. the letters granted. ’ ’
It is insisted on the part of appellant that the. causes announced in section 50' for which letters may be revoked must be incorporated and read in connection with section 14 which designates the persons who cannot be appointed and who cannot qualify as executor or administrator, and that when the probate court is called upon to grant letters testamentary it is not only its privilege but duty to judicially ascertain and determine whether any of the removal causes exist.
With this we do not agree, as it is clear that section 50 relates only to persons who have already qual
We, therefore, conclude that, unless other facts appear which preclude relator from asserting his original rights to letters testamentary, such rights were absolute, and mandamus is a proper remedy to compel the probate court to grant to him such letters. [Cases supra.]
This, however, does not dispose of the subject, in so far as this case involves it, as the pleadings and evidence disclose that the refusal of the probate court to grant letters to relator was predicated upon its findings of fact, that relator had, prior to making his demand for letters, duly and completely renownced and tvaived his rights thereto.
The law is well-settled that, although an executor, if not disqualified by statute, has the absolute right to letters testamentary upon the probate of the will, he is not required to exercise this right or accept this position of trust and responsibility. He is free, if he s©
In case of such renunciation it becomes the duty of the probate court to appoint another, and it is clear that in performing its duty, that is, appointing the person entitled thereto, that court must determine, from the facts, whether there has been a renunciation. It may be conceded that in such a case the court’cannot act arbitrarily, or abuse its power, or make a finding which is wholly unsupported; but, absent these, it cannot be gainsaid that the court, when determining this question, exercises a discretion and performs a judicial function. In the instant case we find no. such arbitrary abuse of power as to warrant outside interference or the use of the extraordinary writ. The relator had duly qualified in the domiciliary jurisdiction as executor of the will, and as such, was in charge of the principal and primary administration. The law is that such an executor succeeds to the title of all of testator’s estate, wherever situated, and continues to hold such title until an ancillary administrator is appointed, when the title to the estate in the ancillary jurisdiction vests in the latter. [13 Am. & Eng. Ency. Law, 931.]
When relator voluntarily resigned he did not state in his resignation that he was attempting to resign only in Ohio, but made it general. He followed this up by immediately resigning as a director in the corporation in which the Missouri assets were principally invested, and avowedly severed all relations with the management and preservation of the Missouri estate. He wrote a letter to Mrs. Eobison clearly indicating an intention to have nothing further to do with the estate, or any part thereof. For a period of about ■ three months, although a resident of the city where the prop
In view of these facts, it cannot be reasonably said that the probate court, in determining the question as to whether relator had renounced his right, acted.arbitrarily and without sufficient facts; and for this reason, if no other, the writ should be denied, unless relator is correct in his insistence that, notwithstanding he had renounced, he, nevertheless, had the right to change his mind and accept the trust at any time after the will was filed and before another person was appointed with the will annexed.
In State ex rel. v. Romjue, 136 Mo. App. 650, the Kansas City Court of Appeals held that where a person entitled to administer renounced his right thereto, it was forever lost and could not be recalled, and this notwithstanding that there was coupled with the renunciation an express condition that certain other persons should be appointed to administer. In that case^ the court held that this right was purely a personal privilege, and that if the members of the privileged class renounce their right, or lose it by failing to exercise it, then the duty devolves upon the probate court of selecting another. The court in that connection said (l. c. 658-9):
“We regard the renunciations filed by relators as unconditional, and pass to the question of whether rela*423 tors could retract them at any time before the appointment of an administrator. In our opinion, the better doctrine is that when the privilege once is renounced- or waived, it is lost forever and cannot be recalled. Two very potent reasons may be given in support of this doctrine. First, as a general rule, the estates of deceased persons demand speedy attention and injury would result from delays that might be caused if resident heirs could renounce and recall their privilege at will, and, second, the right of revocation, if it existed, might be used as was attempted in the present case, not in g'ood faith for the purpose of enjoying the privilege, but as a club to hold over the probate court to compel it to appoint, not the persons whom the court in the exercise of its judgment found were best qualified to administer, but those whom the resident heirs favored. The doctrine just announced is abundantly, though not unanimously, sustained by the authorities. We refer to the briefs of counsel where the authorities for and against it are collated. We conclude that respondent acted within the scope of his right and duty in refusing to acknowledge the right of relators to recall their renunciations and, as the appointment made by him appears to have been the result of the exercise of sound judgment and not of an arbitrary abuse of power, we find no occasion to interfere. ’ ’
And we might add, that when the choice of the testator refuses to act, the duty of preserving the estate and the selection of another person to act becomes important and immediately necessary, and this incurs expense and trouble, a part of which would be made useless and wasteful if the vacillating person who first refused to serve, and then changed his mind, were permitted to play thus fast and loose. [Stocksdale v. Conaway, 14 Md. 99; Estate of Kirtlan, 16 Cal. 161.]
Again, in cases like the present, where a full administration had been in progress (although not under
We are, therefore, of the opinion that the probate court was not only called upon to determine the legal effect of the resignation filed in Ohio, but also the question of fact as to what relator’s intentions were, and how far he had renounced in pais; and, in this connection, it had a perfect right to weigh and consider all of relator’s acts and conduct. This required the exercise of judicial discretion, and it is too well settled to even warrant the citation of authorities that such discretion cannot be controlled by mandamus.
In this case testator knew that a resident of this State was legally qualified to become the legal representative of both the principal and ancillary administration. He named relator executor of his whole will, not a part thereof, as he might have done had such been his desire and intention. [Hunter v. Bryson, 25 Am. Dec. 313; Despard v. Churchill, 53 N. Y. 192; Mordecai v. Boylan, 59 N. C. 365; Gibbons v. Riley, 7 Gill, 81.] In construing wills we have always said that the expressed intention of the testator must guide and govern us, and tMs applies to every part of the will. It was the expressed desire and intention of testator that relator act as one of the legal representatives of both the principal and ancillary administration, and we are unwilling to hold that this intention can not only be de
It has been held in some jurisdictions that the right of renouncement is available only in the tribunal of the testator’s domicile, and that after a person has qualified as executor in that tribunal his resignation in an ancillary jurisdiction is absolutely void. [Ross v. Barclay, 18 Pa. St. 179. See, also, Slaughter v. Garland, 40 Miss. 172; Wilson v. Cox, 49 Miss. l. c. 542; Lindsley v. Patterson, 177 S. W. l. c. 833.] This, as well as the proposition that when there is a resignation in the domiciliary jurisdiction it applies to ancillary rights, seems entirely sound. The principal administration of an estate must take place in the jurisdiction of the deceased’s domicile, and to this all ancillary administration is subordinate and subservient. [18 Cyc. 67; In re Estate of Gable, 79 Iowa, 178; Spraddling & Keeton v. Pipkin, 15 Mo. l. c. 134.] The tribunal there has the exclnsive power to admit the will to probate, and the right to issue letters testamentary or to receive resignations and renouncements is an inch dent to that jurisdiction; and when there made should operate automatically as a renouncement in all ancillary jurisdictions. We so hold.
For the reasons heretofore assigned the judgment is reversed with directions to quash the peremptory writ of mandamus.
