Tittman v. Edwards, 27 Mo. App. 492

Tittman v. Edwards

27 Mo. App. 492 | Mo. Ct. App. | 1887

Thompson, J.,

delivered the opinion of the court.

This is a proceeding begun in the probate court of' the city of St. Louis, by a motion presented by the public administrator of the city of St. Louis, in which he seeks to have letters of administration, which had been granted to A. G. Edwards upon the estate of Patrick Grogan, deceased, revoked, in order that he, as public administrator, may, under the authority conferred by section 306, Revised Statutes, take charge of the estate. The following evidence was adduced in support of the-motion: Patrick Grogan died intestate and unmarried in the city of St. Louis, Missouri, within thirty days prior to the twenty-third day of February, 1887. At the-time of his death and for years prior thereto, he was a resident of said city of St. Louis. He had no relatives by blood or marriage residing in Missouri. The heirs of said Patrick Grogan consisted of two brothers and the-children of two deceased sisters, each and all of said heirs being resident in the city of Chicago, state of' Illinois. The estate of Patrick Grogan consisted principally of unsecured notes executed by residents of the-city of St. Louis (of the face value of $8,650), and of the-bonds of the county of Laclede, Missouri, amounting, *494with coupons, to $1,356. The probate court of the city of St. Louis, on February 23,-1887, on the written request of John H. Grogan, a brother, and one of the heirs of the deceased, appointed A. G. Edwards administrator of the estate of said Patrick Grogan. A. G. Edwards gave bond, which was duly approved by the probate court, filed an inventory, and has continued to act as such administrator ever since. Eugene C. Tittmann, the public administrator of the city of St. Louis, had no knowledge of any of the foregoing facts, until after said Edwards had qualified as administrator. No opposing evidence was offered. The probate court overruled the motion, as did also the circuit court upon an appeal and a hearing de novo. In giving his judgment overruling the motion, Judge Lubke, of the circuit court, delivered a written opinion, which we have had the advantage of seeing, and in the reasoning of which we concur.

It is admitted that authority for the appointment of Mr. Edwards as administrator is found in section 8, Revised. Statutes, and it would seem to have been a proper exercise by the court of its power, under the circumstances above disclosed, to appoint a resident of the jurisdiction, able to give bond, upon the nomination of the brother of a non-resident heir. Upon what principle, then, can the letters so granted be revoked, in order that another person, who would have been entitled to take charge of the estate but for this appointment, may do so ? Obviously, where two persons are equally entitled by law to administer upon an estate, and one of them is appointed, the mere fact [that the other may desire the appointment will afford no ground for revoking the letters of the appointee. Williams’ Executors, 428; 582; Taylor v. Shore, T. Jones, 161; Dubois v. Trant, 12 Mod. 438; Wilson v. Frazier, 2 Humph. 30; Stoker v. Kendall, Bush (Law) 242. But it is forcibly argued on behalf of the public administrator that, under the provisions of section 306, Revised Statutes, which requires him “to take into his charge and custody *495the estates oí all deceased persons. in his connty * * * when a stranger dies intestate in the connty, without relations,” it is his duty and right to take charge of this estate, notwithstanding the prior appointment of an administrator under the authority conferred upon the probate court by section 8; and the argument is, that section 8 is a part of a special or supplementary provision, and that the special must control the general provision, in conformity with the maxim, generalia speciaMbus non derogant. The maxim has no application to such a case. The purpose of the statute relating to administrations is to provide a bonded officer who should take charge of the estates of deceased persons in cases where they are liable to be wasted by reason of the fact of no executor qualifying, or no administrator being appointed under the general law. It is auxiliary to the general law relating to administration, and was intended to supply its deficiency in the particular named. It was intended as an adjunct to it, but was not intended to repeal or supplant any of its provisions. If this purpose of the statute is kept in view, it will appear that there is no necessary conflict between section 8 and section 306. If no appointment is made under section 8 in a case like the one under consideration, the public administrator is at liberty to take charge of the estate, and thereafter it would not be a proper exercise of power for the probate court to appoint an administrator under the terms of section 8; nor would it be a proper exercise of power for the court, after having made such an appointment before the public administrator had taken charge, to revoke the letters merely because the public administrator might subsequently desire to take charge. The case has some analogy to the case where two courts have concurrent jurisdiction; the court which first acquires jurisdiction retains it to the end of the proceeding.

The judgment of the circuit court will be affirmed. It is so ordered.

All the judges concur.