State ex rel. Howe v. HughesState ex rel. Howe v. Hughes
- Reporters:
- , ,
- Before:
- Bobling (per curiam)
Division Two, December 20, 1938.
From the pleadings the following uncontroverted facts appear: Respondent is judge of the Probate Court of St. Louis County. In process of administration in his court is the estate of Minnie Morey Howard (whom we shall call the deceased), who died testate about February —, 1937. She left a large estate. By her will she named her son and only heir (and beneficiary), Clarence H. Howard, Jr., sole executor, to act without bond. He qualified, without being required to give bond and has since been so acting. Letters of administration with will annexed were issued to him upon probate of the will, February —, 1937. In April, 1937, relator herein filed in the probate court a claim for allowance against the estate of deceased for four million dollars ‘‘or in such amount as may be
On April 20, 1938, the executor filed in the probate court his first report or settlement, and at the same time filed and presented a petition asking the court to order partial distribution of certain assets of the estate. The probate court, on the same day, made and entered of record orders approving the settlement and granting the application for partial distribution. Said order of partial distribution authorized the executor to distribute to Clarence H. Howard, Jr. (who is the sole distributee as well as executor) $565,000 of U. S. Government bonds and Treasury certificates and $500,000, at par, of General Steel Castings Corporation bonds, a total of $1,065,000 of securities. The mandamus sought herein is to compel respondent to set aside said order of partial distribution and order said distributee to return said $1,065,000 of securities to the estate, to be there held until relator’s $4,000,000 claim is finally adjudicated. Said first settlement filed by the executor was not intended as a final settlement and was not so treated. It showed assets aggregating $4,336,712 then in the hands of the executor. Relator alleges that the Federal estate tax and the State inheritance tax and administration expenses, attorney fees, etc., will yet have to be paid out of the estate and that said partial distribution depletes the assets to such an extent that there remains an amount insufficient to pay his claim should it ultimately be established.
The pleadings, including exhibits therein referred to and made part thereof, show that the deceased, in her lifetime, was a stockholder of the Commonwealth Steel Company, a corporation. As such she received, upon distribution of assets of that corporation, approximately, $5,000,000. Relator’s claim is founded upon a decree and judgment (interlocutory) of the United States District Court in and for the Southern District of Illinois, made and entered September 11, 1930, in an action in equity instituted in that court by relator against said Commonwealth Steel Company and others. Neither deceased nor, since her death, her executor, as such, were parties to that suit. The purpose of the suit was to establish relator’s rights
About a year prior to said decree the Commonwealth Steel Company had distributed all of its assets among its stockholders, including deceased (whence she received the approximately $5,000,000 above referred to), except $1,700,000 in cash, which remained in the hands of the committee when said decree was rendered, and upon which relator was decreed a lien.
In and by said decree the Federal Court referred the cause to a Master in Chancery ‘‘to take, state and report an account between the plaintiff and the defendant, Commonwealth Steel Company,’’ to determine the reasonable value, if any, of the patents, the value, if any, of said corporation’s shoprights thereunder and the ‘‘earnings or values if any, resulting to said corporation from the use of said patents; and, lastly, the court ordered, adjudged and decreed that jurisdiction of the cause is reserved for such orders and decrees as the Court of Equity may require until the entry of a final decree herein.’’
The above mentioned suit in the Federal Court is still pending. The accounting has not been completed and, so far as shown, no report has been made by the Master. No final judgment or decree has been entered. The $1,700,000 in cash, upon which relator has a lien, is still in the hands of the stockholders’ committee.
We have thus at some length indicated the nature of relator’s claim in the probate court because of the reasons given by respondent for dismissing it and striking it from the files, and making the order of partial distribution complained of.
Respondent’s motion to quash states a number of grounds of which we specifically mention Nos. 4, 5 and 6, as they are referred to in the return. They are in substance: 4, that the alternative writ and the petition for mandamus thereto attached and made part thereof show that relator’s claim ‘‘is of purely equitable cognizance and not subject to the jurisdiction’’ of the probate court or of respondent, judge thereof; 5, that said writ and petition show that relator’s claim is based on proceedings to which neither deceased in her lifetime nor her executor, as such, since her death, was a party defendant, and that no debtor-creditor relationship ever existed or now exists between relator and deceased; 6, that said writ and petition show that relator’s claim is based on proceedings now pending in the Federal Court, in equity, to which neither deceased, individually, in her lifetime nor her executor, as such, since her death, was a party, and upon the interlocutory judgment and decree of said court wherein said court expressly reserved jurisdiction of the cause for such orders and decrees as that court (in equity) may require until final judgment shall there be entered, and ‘‘that such (interlocutory) judgment and decree is not and never was such a claim or demand against the estate of Minnie Morey Howard, deceased, as is subject to classification and allowance under the laws of Missouri.’’
The motion to quash also alleges that said writ and petition show that relator can be afforded adequate relief by appeal; that the facts stated in said writ and petition are not sufficient to entitle relator to relief by mandamus; that said writ and petition show that relator has appealed from the order and judgment dismissing his claim; and, in effect, that the writ and petition show that in dismissing said claim and refusing to set aside the order of distribution respondent acted in his judicial capacity.
As we have indicated, respondent filed a combined motion to quash and return. It is a single document with the heading ‘‘Motion to quash and return to alternative writ of mandamus.’’ First there appears the motion, which we have summarized. Following that respondent says ‘‘Without waiving his motion to quash the said alternative writ of mandamus heretofore issued in this cause, but expressly insisting thereon, the respondent for his answer and return to said alternative writ says:’’ Then follows the return,
Relator, in his brief, insists that by filing a return respondent waived his motion to quash and that said motion cannot now be considered, even though it and the return were combined. It is argued that such motion to quash performs the same function as a demurrer in an ordinary civil action and, like a demurrer, admits all well pleaded facts. It is not necessary in this case to determine the technical question of pleading thus suggested. See State ex inf. Barker ex rel. Kansas City v. Kansas City Gas Company, 254 Mo. 515, 163 S. W. 854, where, in a similar situation, the matter was discussed. Respondent here was commanded by the alternative writ to do certain things or show cause why he should not do them. In showing cause he said in his return that he had done certain acts (dismissing relator’s claim, which claim had been fully set forth in the writ) for reasons stated in certain paragraphs of his motion, thus by reference making at least those paragraphs of his motion a part of his return. As was said in State ex inf. v. K. C. Gas Company, supra, 254 Mo. l. c. 528, 163 S. W. 855, ‘‘The practice has grown up in this court of raising questions of law side by side with issues of fact in the return in mandamus.’’ The issues, herein, both of law and fact, sufficiently appear from the pleadings without recourse to the motion to quash. While some allegations of the writ are denied by the return, the case is presented to us on the uncontroverted facts. Relator says in his brief: ‘‘Other facts are presented by the pleadings, but they are controverted. None of these controversial facts, however, are necessary for the determination of the questions presented in this mandamus proceeding and they need not be considered.’’ The facts necessary to a decision being uncontroverted there is no need for separate hearings on questions of law and fact. We ordered that the motion to quash be taken and considered with the case and the parties have briefed the legal questions involved accordingly. In this situation, as was said in State ex inf. v. K. C. Gas Company, supra, 254 Mo. l. c. 529, 163 S. W. 856, ‘‘We are of opinion that we need not rule in the instant case on the one narrow technical question whether a motion to quash the writ can live in the face of a return raising only issues of fact.’’
On the uncontroverted facts of this case we are of opinion that our peremptory writ should not issue. We think relator had an adequate remedy by appeal, which he should have invoked, and also that respondent’s acts and rulings complained of were in their nature judicial rather than purely ministerial and not subject to control by mandamus.
In the instant case it is argued that appeal is not an adequate remedy. It is suggested that the executor is not under bond, that the court’s order of distribution did not require that, as distributee, he give a refunding bond and that the remedy by appeal is slow and would entail delay in settlement of the estate, etc., whereas the remedy by mandamus would be more speedy and efficacious. There is no allegation or intimation in the pleadings that said distributee is or is likely to become insolvent so as to be unable to respond should he ultimately be called upon to return the property now ordered to be distributed to him. We need not go into the
We think that in making the order of partial distribution respondent was performing a judicial rather than a purely ministerial function. Ordering distribution of estates administered therein is of course, generally speaking, within the jurisdiction of the probate court. In doing so the court must examine the accounts of the administrator or executor and determine the amount to be distributed and the amount to be paid over to each distributee. In State ex rel. Gott v. Fidelity & Deposit Co. of Baltimore, Md., 317 Mo. 1078, 298 S. W. 83, the probate court (on final settlement), made an order that the administrator pay over the balance in his hands ‘‘to the parties entitled thereto.’’ Speaking of that order this court said, 317 Mo. l. c. 1087, 298 S. W. l. c. 87:
‘‘Under the facts of this case, the direction in the order that the administrator pay over the balance in his hands to the parties entitled thereto is, as the appellant contends, either indefinite and meaningless, or else an attempt to invest the administrator with judicial discretion to determine the proper distributees and the amount of their interests. In either case it would be void.’’ (Citing authorities. Latter italics ours in the instant case.)
In ordering distribution, questions concerning advancements may be litigated and determined, State ex rel. Gott case, supra, and advancements made by the deceased to distributees may be adjusted and deducted from their distributive shares so as to equalize the distribution of the estate among those entitled thereto. [In re Estate of Elliott, 98 Mo. 379, 11 S. W. 739; Brown v. Glover, 158 Mo. App. 396, 138 S. W. 105.] The indebtedness of a legatee or distributee to the estate may be ascertained and offset against his distributive share. [State ex rel. Gott case, supra; In re Estate of George H. Lietman; Winkler, Appellant, v. Lietman, 149 Mo. 112, 50 S. W. 307, 73 Am. St. Rep. 374.] In the Elliott case, supra, 98 Mo. l. c. 384, 11 S. W. l. c. 741, we said:
‘‘As heretofore said by this court, our probate courts were established with extensive powers and jurisdiction for the purpose of doing everything necessary to the full and final administration of estates, including the power to make distribution to the parties entitled thereto.’’
Orders of distribution made by the probate court are so far of the nature of judgments that, if not appealed from, they become final as to the rights of distributees, State ex rel. Peper v. Bell, supra (partial distribution), and are not subject to collateral attack. [Gorg v. Rutherford (Mo. App.), 31 S. W. (2d) 585; Harter v. Petty, 266 Mo. 296, 181 S. W. 39.]
In State ex rel. Thompson v. Nortoni, 269 Mo. 563, 191 S. W. 429, the probate court had refused letters of administration to the widow of the deceased, on the ground that she had waived her right to administer by an antenuptial contract entered into with the deceased. But for such antenuptial contract her right to administer was clear. She brought mandamus proceedings in the St. Louis Court of Appeals to compel the probate judge to revoke his appointment of the public administrator and to appoint her as administratrix. Said court granted the writ, directing said probate judge to vacate his order appointing the public administrator and to appoint her. The case was certified to this court, which quashed the record of the Court of Appeals, holding that the question of whether or not the widow by contract or otherwise had waived her marital right to administer was a judicial question for the determination of the probate court, and ‘‘When it acted its judgment was not for review upon mandamus. Judicial acts, completed as here, are not the subjects of mandamus proceedings.’’ [See also, question of claimed renunciation of right to administer, State ex rel. Abercrombie v. Holtcamp, 267 Mo. 412, 185 S. W. 201.]
Other examples might be given but we think the foregoing sufficiently illustrate that in making orders of distribution the probate court acts in a judicial, rather than a purely ministerial capacity. It seems to us that whether a certain act is ministerial or judicial depends upon the nature and character of the act itself and upon the things necessarily involved therein rather than upon what the applicant may claim for the act. [State ex rel. Heller v. Thornhill, 174 Mo. App. 469, 472, 160 S. W. 558.] It is well settled that, while an inferior tribunal may be compelled by mandamus to act, it cannot, where judgment and discretion are to be exercised, be thus compelled to act in a particular way. In the instant case respondent did not refuse to act. He did act. He exercised his authority and jurisdiction to order a partial distribution. In making the order of distribution he determined that relator’s claim was not a legal
‘‘We are not holding whether the petition filed in the circuit court did or did not state a cause for the issuance of an alternative writ of mandamus. What we do hold is that the circuit court had jurisdiction to determine that question, the determination of which is a judicial act which cannot be controlled by mandamus. Where, as here, a circuit court has jurisdiction of the subject-matter and of the parties, mandamus will not go to compel a particular decision, or to review a judicial decision made in the exercise of lawful jurisdiction. Petitioner’s remedy, if any, lies in other directions.’’
In the instant case we do not wish to prejudge the question whether respondent was right or wrong in dismissing relator’s claim in the probate court,—a question now pending on appeal in another court. In doing that he was clearly acting in a judicial capacity and we think he acted in such capacity and within his jurisdiction in making the order of distribution complained of and refusing to set it aside.
It is argued that respondent acted capriciously and abused his discretion, in that he gave no consideration to the matter of ordering distribution but made the order upon the petition of the executor, without consideration or investigation and without even knowing the contents of said petition at the time of making such order. There are allegations to that effect in the petition for mandamus incorporated in the alternative writ, but they are denied in the return and
In State ex rel. Crow v. Booneville Bridge Co., 206 Mo. 74, 134, 103 S. W. 1052, this court said, quoting from High on Extraordinary Legal Remedies (3 Ed.), section 9:
‘‘The writ of mandamus being justly regarded as one of the highest writs known to our system of jurisprudence, it issues only where there is a clear and specific right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy. The right which it is sought to protect must therefore be clearly established, and the writ is never granted in doubtful cases. . . . It follows also, from the important position which this writ occupies as a remedial process, as well as from its nature as an extraordinary remedy, that the exercise of the jurisdiction rests, to a considerable extent, in the sound discretion of the court, subject always to the well-settled principles which have been established by the courts, or fixed by legislative enactment. . . .’’
It is our conclusion that the alternative writ issued herein should be quashed and the peremptory writ prayed for denied. It is so ordered. Westhues and Bohling, CC., concur.
PER CURIAM:—The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.