148 Mo. App. 715 | Mo. Ct. App. | 1910
Mandamus proceeding from the circuit court of Scotland county against William F. Eeddish, judge of the probate court of said county, and J. A. Schenk, public administrator of 'the county, in charge of the estate of Sylvanus Flick, deceased. The prayer of the petition and of the alternative writ, is that a peremptory writ issue to Judge Eeddish, commanding him to revoke an order of the probate court entered September 21, 1903, directing the public administrator to take charge of the estate of said Flick, to remove Schenk as administrator of the estate and to appoint relator, Henry P. Flick, administrator de bonis non. Sylvanus Flick died in 1902, leaving a personal estate of around $12,000, of which eight children and, as we understand, some grandchildren, were heirs. Sarah D. Flick was appointed administratrix, took charge of the estate and entered on its administration, but died a year later without having made final settlement. Eelator Henry P. Flick was thereupon appointed administrator of his mother’s estate and also guardian and curator of minor children of a deceased sister. He subsequently applied to be appointed administrator de bonis non of his father’s estate, but met Avith the opposition of three of his sisters, who were heirs. Evidence was taken on the application by the probate court and findings made that relator had borrowed money from the estate of his deceased father without an order of the court authorizing
The question for decision is whether or not the probate court acted judicially in passing on the application of relator to be appointed administrator; for, if it did, it cannot be compelled by mandamus to set aside its order and enter one of the opposite effect. Such a function does not belong to the writ of mandamus, which only controls courts in the performance of ministerial acts. [State ex rel. v. Allen, 92 Mo. App. 20.] This question is rendered embarrassing by the condition of the law in this State, particularly by the fact that no appeal lies from the refusal of the probate court to grant letters of administration to an applicant; whereas in many states, the right of appeal is accorded to the applicant. [In re Banquier, 88 Cal. 478; In re Est. Patcheco, 23 Cal. 470; Lawrence v. Englesby, 24 Vt. 42; Bowersox’s Appeal, 100 Pa. St. 434; Stevenson v. Fiske, 18 Pick. 24; Fitzgerald v. Smith, 112 Tenn. 176, 78 S. W. 1050.] Because of the omission of the Legislature to provide for an appeal from such an order, the courts of this State have been compelled to hold no appeal will lie. [State ex rel. v. Fowler, 108 Mo. 465, 18 S. W. 968; In re Estate of Flick, 212 Mo. 275, 100 S. W. 1074, s. c. 136 Mo. App. 164, 117 S. W. 93.] In those cases, and others where the question arose, it was declared the remedy of a person entitled by virtue of the statutes to letters of administration was the writ of