62 Mo. App. 38 | Mo. Ct. App. | 1895
One Adamson died in Christian county on October 15, 1893, without issue. On the eighteenth of that month, the probate judge, in vacation, appointed three persons as administrators of his estate, and, subsequently, on November 16, 1893, confirmed the appointment in term time. On the thirtieth of October, 1893, the plaintiff, claiming to be the widow of Adamson, applied for administration on his estate. As the judge and court took no notice of this
The statute touching the administration of the estates of decedents provides (R. S., sec. 7): “Letters of administration shall be granted: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation shall believe will best manage and preserve the estáte.” Succeeding sections provide that, if no such person apply for letters within thirty days after the death of the deceased, or, if the persons entitled to preference renounce their claim to administration, or are nonresidents of the state, letters may be granted to any person whom the court or judge or clerk in vacation may deem most suitable.
It has been repeatedly decided in this state that courts of probate are not warranted in granting letters of administration to a stranger, before those entitled to administer have been afforded, for the time allowed by the statute, an opportunity to take out letters. In Mullanphy v. St. Louis County Court, 6 Mo. 563, such
The respondent’s return to the alternative writ of mandamus raises an issue, which is inadmissible in this proceeding. It denies that the plaintiff is the widow of the deceased. The respondent’s brief also attempts to raise an issue, which is inadmissible, namely, that the proceedings in the probate court on the plaintiff’s application were ex parte, and without any notice to administrators already appointed. These considerations address themselves to the merits of the plaintiff’s appeal, and not to her right of appeal. “It is foreign to the object and purpose, as it is inconsistent with the nature of the proceeding by mandamus to review judicial proceedings.” State ex rel. v. Allen, 92 Mo. 20-24. The question whether the decision of .the probate court was right or wrong can not be inquired into in this proceeding. The only question before the circuit court was whether the plaintiff was entitled to an appeal from such decision. As we are of opinion that she is entitled to such appeal, we must reverse the judgment dismissing the writ.