110 Mo. App. 140 | Mo. Ct. App. | 1904
— This is a procedure which originated in the probate court having fob its object the annulment of the letters of administration, with the will annexed, granted to defendant Joseph H. Larwill on the estate of J ohn C. Larwill, deceased, and to remove him. It was carried by appeal to the circuit court where, on a trial de novo, the facts which the evidence tended to prove were, briefly stated, about as follows, viz: That J ohn O. Larwill, a resident of the State of Ohio, died during the month of August, 1901, at his home in Ohio, leaving a large estate in Ohio, Missouri and other States. The deceased disposed of his entire estate by will and codicil executed and proved according to the laws of Missouri, naming as his executors Paul Oliver and Richmond Smith, both residents and citizens of the State of Ohio, both of whom duly qualified as such and assumed charge of the estate in Ohio. The deceased left no children or descendents of children, and no father or mother surviving him; he was survived by his widow, a resident of Ohio, and by one brother, Joseph H. Larwill, the administrator in Missouri and respondent in this proceeding; the petitioners herein, O. H. and George A. Stevens, were sons of a deceased sister of John O. Larwill. O. H. Stevens received a legacy of $1000 in the will, which he sold and
It is contended that this proceeding is within the
Again, it appears by the express provisions of the will that one of the petitioners, George A. Stevens, was excluded from any participation in the estate and that the other, Oscar H. Stevens, was given a legacy of $1,000 which he had sold and transferred to another, and so it results that neither of the petitioners now have any interest in the said estate. It is thus made obvious that the court in which the partition suit was brought was shorn of its jurisdiction by the statute, and the want of interest in the petitioners in the subject-matter of the suit. It must therefore be apparent that the rule in respect to jurisdiction of courts already referred to is wholly inapplicable in the present case. If the suit for the partition of the lands of the testator was forbidden by the statute, as we have seen was the case, then certainly the court in which it was brought did not by reason of the bringing of it thereby acquire jurisdiction over the ves to the exclusion of that of the probate court.
But if we are in error in this conclusion, there is still another ground upon which the judgment must be upheld. The inventory shows that the testator left personal property in Jackson county, in this State, consist
It may be well doubted whether or not instructions have any appropriate place in a case of this kind, but if it is an action at law so far as to entitle the petitioners to a consideration of the issues by the court upon the theories propounded in the instructions requested by them, then we think, for the reasons previously stated, their number five denying jurisdiction to the probate court to grant letters of administration was rightly refused. We may add that, even if the partition suit was ■ properly brought, and the court in which it was brought had exclusive jurisdiction of the real estate to the exclusion of that subsequently exercised by the probate court in ordering it into the charge of the administra
The evidence shows that John C. Larwill died a resident of Ohio, leaving a wife but no children or descendents of children. His estate would, in the absence of a will, have descended to his wife and to his brothers and sisters. The wife was at the time of his death, and continued to be a non-resident of this State; she was therefore not entitled'to administer; the right of ad
“Before any one can be appointed administrator who is not in the preferred class, notice must be given to those having a prior right, to appear and claim their privilege, or show cause why the applicant should not be appointed. To dispense with the citation, those having preference should renounce their claim, or signify their consent to the grant of the petitioner’s request by indorsement upon the petition or some writing of record. But no notice is necessary to the other parties in the same class with the applicant,- the appointment may be made ex parte to any of those who are equally entitledThe statute nowhere provides for any trial or hearing to determine the qualifications of an applicant for letters of administration to properly manage the estate. The matter is left wholly within the discretion of the probate court, with the power to remove bim if found to be unqualified.
It is further contended that the letters granted to respondent should be revoked because he was and is,
The rule is well established in every jurisdiction that the motive or purpose of a change of domicile or
Whether a change of residence was affected in any case depends upon the intention with which the removal from the formér domicile was made. [Hall v.
The above authorities establish the proposition that respondent was a bona fide resident of Kansas City, Mo., at the time letters were granted to him. He has not changed his domicile, but has remained a resident of this city ever since that time. It is contended, however, that an administrator is a State officer and as such is included within the meaning of section 12, article 8, of the constitution of this State which declares that, “no person shall be elected or appointed to any office in this State, civil or military, who is not a citizen of the United States and who shall have resided in this State one year next preceding his election or appointment.” An administrator belongs to the same class of officers as curators, guardians, receivers, referees, and the like, whose duties are private and concern private interests; and are in no sense of the term public. He is invested with no portion of the sovereign functions of the State to be exercised by him for the benefit of the public, and is therefore not an officer of this State within the meaning of the constitutional provision just quoted. We have been referred to no case in which it has been held that an administrator or any one of that class of subordinate officers to which he
Mechem on Public Officers, section 1, states that, “a public office is the right, authority and duty duly created and conferred by law, by which for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the functions of government, to be exercised by him for the benefit of the public. As here used, the word ‘office’ is to be distinguished from its application to such positions as are at most quasi public only, as the charge of an executor, administrator, or guardian, and from the offices of a private corporation.” Accordingly, we do not think the respondent’s letters should be revoked on the ground of non-residence of this State.
It is no objection to the grant of letters in this State, that the estate is in process of administration in Ohio, where the testator resided at the time of bis death. The administration here seems to be in the nature of an ancillary administration, as the statute —sections 255 and 266 — provides that the balance in the hands of the administrator after paying' all debts due citizens and others in this State may be transmitted to the foreign administrator in the State or country where the deceased had his domicile. [Spraddling v. Pipkin, 15 Mo. 118.] Instruction number six we think was not a correct expression of the law applicable to the facts which the evidence conduced to prove and it was therefore properly refused.
The court at the request of the petitioners gave an instruction declaring that if the respondent, “is hostile towards the petitioners being heirs at law of the deceased, that then he should be removed as administrator.” The court, it seems, did not find from the evidence that the administrator was hostile to the petitioners, and so refused to order his removal on that ground. The evidence does show that the respondent did sue and recover of one of the petitioners certain
As far as we are able to discover, the record in the case is barren of any error committed by the trial court prejudicial to the substantial rights of the petitioners, and it therefore results that the judgment will be affirmed.