Estate of Campbell v. Campbell

202 S.W. 1114, 274 Mo. 343, 1918 Mo. LEXIS 24

• Court: Supreme Court of Missouri
• Decided: April 27, 1918
• Status: Published

Opinion

GRAVES, C. J.

The ease now here originated in the prohate conrt of the city of St. Lonis. J ames Campbell died June 12, 1914, leaving a will, by the terms of which the Mercantile Trust Company was made the executor. This will was on June 16, 1914, dnly probated in the probate court of the city of St. Louis, and the Mercantile Trust Company duly qualified as executor, and letters testamentary were issued to it by that court, and said Mercantile Trust Company entered upon the discharge of its duties as such executor. Whilst the Mercantile Trust Company had possession of and was administering upon the estate of' the said James Campbell, Margaret C. Harrison aiid others instituted a suit in the circuit court contesting this will. The filing of this suit was in the following October.

After the filing of this contest proceeding the present case originated in the probate court by the filing of the following petition:

In the Probate Court, City of St. Louis, State of Missouri.

September term, 1914.

In the Matter of the Estate of James Campbell, deceased. No. 43709.

To the Honorable Charles W. Holtcamp, Judge of said Court:

And now come Margaret C. Harrison, Mamie S. Spargo, James G. Campbell, Archie W. Campbell and Genevieve Baker, petitioners, and respectfully represent that on the 3rd day of October, 1914, they caused to be filed in the office of the clerk of the circuit court of the city of St. Louis, Missouri, a petition, as required by law, to contest the will of James Campbell, deceased, which said will was probated herein on the 18th day of June, 1914, and the title of which said cause is as follows, to-wit:

“In the Circuit Court of'the City of St. Louis, Missouri,

December Term, 1914.

“Margaret C. Harrison, Mamie C. Spargo, James C. Campbell, Archie W. Campbell and Genevieve Baker, Plaintiffs.

vs.

“Florence A. Campbell, Lois Ann Burkham, Wife of Elzey G. Burk-ham, Mercantile Trust Company, purporting to be Executor and Trustee of the purported will of James Campbell, deceased, and St. Louis University of the City of St. Louis, Missouri, Defendants.”

Your petitioners therefore pray that an administrator ‘pendente Ute he appointed herein, as by statute provided, to take charge of the property of said estate and to administer the same according to law. And your petitioners will ever pray, etc.

Margaret C. Harrison,

Mamie C. Spargo,

James C. Campbell,

Archie W. Campbell, and Genevieve Baker,

By L. Frank Ottofy,

Their Attorney.

This petition was contested in the prohate conrt. Mr. Leahy was not a party to that contest, and in the very nature of things conld not have been a party. The probate conrt in an opinion filed made the following statement.

“The authority of the Mercantile Tru-st Company as executor under the will of James Campbell is hereby suspended and it is ordered to settle to such suspension with the administrator pendente lité and John S. Leahy is hereby appointed administrator pendente lite of the estate of said James Campbell, deceased,, npon giving bond with sufficient surety approved by the court in the sum of ten million dollars, the court reserving the right to increase his said bond if at any time during the administration of the estate the reasonable value of the assets of said estate should require additional surety.”

The same in modified form was included in a final order made the day Mr. Leahy tendered his bond and had the same approved. This modified order fixing a temporary and a'final bond will be noted in the opinion-This order was entered of record a day or so after the filing of the opinion mentioned, supra.

It is important here to note the appeal which was actually taken. Four parties appealed from the order of the probate court, but it is important to get the appeal which they actually took. They all appealed from that portion of the order of the probate court suspending the Mercantile Trust Company as' executor. Mrs. Campbell and Mrs. Burkliam {nee Campbell) joined in one affidavit. In tbeir affidavit they appealed, in the language of the affidavit, “from the order of October 22, 1914, suspending and revoking letters testamentary of Merchantile Trust Company, executor of the last will of said James Campbell, deceased.”

The affidavits of the other two appellants, Mercantile Trust Company and St. Louis University, are mbre general, but it is clear that their appeal was to the same effect as that of Mrs. Campbell and Mrs. Burkham. In fact, the order of the probate court granting the appeals so shows. This order as to Mercantile Trust Company reads: “I do further certify that on the 28th day of October, 1914, in vacation, after the adjournment of said court for the September term, 1914, thereof, and within ten days thereafter, the Mercantile Trust Company, executor of the last will of James Campbell, deceased, filed in my office an affidavit and bond for an appeal from the order of said court, of date October 2%, 1914, suspending the letters testamentary granted to the Mercantile Trust Company, as executor of the last will of said James Campbell, deceased, to the circuit court, city of St. Louis, which said affidavit and bond were duly approved by the judge of said probate court and said appeal allowed.” The italics are ours. The order granting the appeals to Mrs. Campbell, Mrs. Burk-ham and the St. Louis University are in the same language, and they need not be quoted. Leahy was never a party to the contest, unless the order appointing him had the effect of making him a party. ,

The judgment of the circuit court, which is appealed from in the case before us, contains this language: “therefore, the application of the contestants to suspend the letters testamentary of the executor under said will for the appointment of an administator pen-dente lite is denied.”

The application referred to in this judgment we have set out in full above. It is the application of Margaret C. Harrison et al. This application the pro-hate eonrt sustained, and this application on trial de novo in the circuit court, said circuit court, by the judgment above, denied. Neither Margaret C. Harrison, nor either of her four co-appellants, took any appeal from the judgment of the circuit court denying their application. They remained mute, satisfied with the judgment from which this appeal was taken. Leahy alone undertakes to appeal. This sufficiently outlines the case. . , , :

Action!t0

I. We are of the opinion that Leahy was not a party to the proceeding disclosed by this record, and for that reason his appeal should be dismissed. We have purposely and at length set out the record in this case, to the end that it might be seen who were the real parties interested in this proceeding. No appeal was taken from the order appointing Leahy' administrator pendente lite. The probate court’s order we have set out in the statement so shows. This record says that the Mercantile Trust Company and the other appellants “filed in my office an affidavit and bond for an appeal from the order of said court, of date October 22, 1914, suspending the letters testamentary granted to the Mercantile Trust Company, as executor of the last will of sa-id James Campbell, deceased, to the circuit court, city of St. Louis, which said affidavit and bond were duly approved by the judge of said probate court and said appeal allowed.”

So ran all the appeals taken. No appeal was taken from that portion of the said order designating Leahy as administrator pendente lite. The circuit court never tried that matter, as its judgment shows, because that court .by its judgment only said: “Therefore, the application of the contestants to suspend the letters testamentary of the executor under said will and for the appointment of an administator pendente lite is denied.” The whole question in the circuit court was that portion of the probate court order which suspended the letters testamentary of tlie Mercantilie Trust Company. Tlie whole thing decided there, was that the application of Margaret C. Harrison et al. should be denied. The contest in the probate court and in the circuit court was one between Margaret Harrison et ah, applicants for an administrator pentente lite, on the one side, and Mercantile Trust Company, testamentary executor, and the devisees under the will, on the other side. Leahy was not a party to this fight in the probate court and could not have been in the very nature of things. Even after he was appointed no appeal was taken from that portion of. the order. The circuit court only acquired jurisdiction over the matter litigated and fought out in'the probate court, from which the appeal was taken. The appeal bonds given did not act as supersedeas to any other matter.

In Branson v. Branson, 102 Mo. l. c. 620, Black, J., has well said: “The'statute provides in express terms that the appeal in probate matters shall not be a super-sedeas in any other matter relating to the administration of the estate, except that from ivbich the appeal is specially taken; and the proceedings had in thé circuit court must be certified back to the probate court. [R. S. 1879, secs. 297, 300.] It is, therefore, clear that the appellate court acquires jurisdiction only of the particular order of judgment appealed from. It is that order and that only which it can consider. Nor does the appellate court carry into effect its own order, but its decision is certified to the probate court, which proceeds in conformity therewith. ’ ’

To reiterate it should be said the contest in the probate court was not whether Leahy should or should not be administrator pentente lite. That contest involved but one question, and that question was, whether or not an administrator pentente lite should be appointed. Not the question whether Leahy should or should not be appointed. In other words the thing to be determined in the probate court was whether, or not, under the facts, there was a place to be filled by an administrator pentente lite, and not as to who should fill the place. Upon this issue, made by the written petition of Margaret Harrison et ah, the lines were sharply drawn. The Mercantile Trust Company, Executor^ and the devisees of the will were on one side, and Margaret Harrison et al. on the other. Prospective appointees to the place, if such place was found'to exist, were not interested parties to the proceedings, and could not he parties to the contest. If they could not he in the probate court, they could not he in. the circuit court upon appeal, because the circuit court could only try anew the matter tried in the probate court. Leahy was never a party to that controversy, and his motion in the circuit court to dismiss the appeals was that of an interloper. Cases like In re Switzer, 201 Mo. 6fi, and others relied upon to demonstrate Leahy’s right to appeal to this court, have no application to the facts of this case.

case*

II. The most serious question in this ease, is that we are called upon to determine an absolutely moot ease. We may, for the sake of the argument upon this point, grant the right to Leahy to appear in the circuit court and to appeal to this court, and yet his appeal to this court should now be dismissed, because his case has become a mere moot case.

It is urged in appellant’s briefs that the case of State ex rel. v. Imel, 243 Mo. 178, has no application to this case because the facts are different, and that it is no authority against the contention of appellant in this case. It is true that Imel’s case and this case are not “gray mules” cases. But Imel’s case is authority, and the very strongest authority, for the proposition that this court will not hear and determine a mere moot case. [State ex rel. v. Imel, 243 Mo. l. c. 189.] On this page Lamm, J., collates the cases, both in and out of Missouri, sustaining the proposition. To the interested this reference will suffice. . It is likewise authority for the rule that an appellate court should dismiss the appeal in a case which, has become a mere moot case by reason of events which have occurred subsequent to the appeal. For this rule the learned judge has likewise collated the case law, and from the case law thus formulated the rule: “And where, as in this case, events have happened making it impossible for an appellate court to grant effectual relief on appeal, the appeal will be dismissed, although such facts do not appear on the record, but appear extrinsically.”

Now it may be true that Leahy’s case has not become a moot case by treading the exact pathway described in the Imel case, but if by any pathway it has reached the status of amere moot case the rule in Imel’s case applies.

Let us get the facts and occurrences in' the Leahy case. His appointment thus appears from the probate record: “that John S. Leahy be and he is hereby appointed administrator pendente lite of the estate of said James Campbell, deceased, remaining unadminis-tered, pending such contest, and that he now give bond, as such administrator, in the sum of ten thousand dollars, and upon his receiving the assets of said estate his bond as such administrator is to be increased to the sum of ten million dollars. And thereupon comes said John S. Leahy, administrator pentente lite as aforesaid, and tenders his bond as such administrator in the sum of ten thousand dollars, which bond being examined by court is approved and ordered to be filed and recorded. ’ ’

So far as the record before us shows Leahy never got further than giving the $10(,000 bond mentioned in this order. He never qualified under the order, so as to receive and hold the assets of the estate. It is not contended that he ever got possession of the estate. Our records show -that- the will case was finally determined here, adverse to Margaret Harrison et al., prior to the submission of the instant case. Vide State ex rel. v. Imel, 243 Mo. l. c. 187 and 189, for our authority to examine our own records.

Discussing the section of law authorizing the appointment of an administrator pentente lite, this court in Hawkins v. Cunningham, 67 Mo. l. c. 417 and 418, has thus described such an administrator: ‘£ This section distinguishes betwixt an administrator appointed pending the contest of a will and the executor appointed by the will or an administrator with the will annexed. The latter is termed the regular administrator. The administrator appointed while the suit is pending is only a temporary or special administrator. In the ease of Lamb v. Helm, Admx., 56 Mo. l. c. 433, this court said: ‘Such special administrators occupy more nearly the position of a receiver who acts under the direction of the court,, than they do the position of a general administrator.” To like effect in State ex rel. v. Imel, 243 Mo. l. c. 186.

Now when this court dismissed the appeal of Margaret Harrison et al. in the will contest case, as it did prior to the submission of this case, the alleged appointment of John S. Leahy, appellant here, was at once vacated. "We again quote from the learned opinion in Imel’s case, 243 Mo. l. c. 186: “By analogy, his office is said to be in the nature of a receivership; and, when the contest is at an end and the validity of the will established, his term of office expires and his right to act ends. The executor or regular administrator c. t. a. becomes again qualified to act in the administration of the estate. So, when that time comes the provisional administrator is functus officio. He must step down and out instanter, settle and turn over ‘the money ánd property of the estate to the executor or regular administrator, who,, by that token, comes into his own again. [R. S. 1909, sec. 21, supra; Robards v. Lamb, 76 Mo. l. c. 194; Robards v. Lamb, 89 Mo. l. c. 311; State ex rel. v. Moehlenkamp, 133 Mo. l. c. 138 ; Lamb v. Helm, 56 Mo. l. c. 432; Hawkins v. Cunningham, 67 Mo. 415.]”

In the instant case Mr. Leahy never had possession of the Campbell estate. He never performed a single duty imposed by law upon administrators or executors, nor did lie a single act in tlie line of a receiver. He neither collected nor distributed a single penny of ■ this estate, to the time the law rendered him (to use the language of Imel’s case, snpra) “functus officio.” He may have partially qualified himself to act by giving the first limited bond required by the order appointing him, but he never acted. Administrators and receivers’ are not paid for being qualified tó act, but they are paid for services to the estate actually rendered. In. the case of administrators, Section 229 fixes the services to be performed and the pay therefor, and as to receivers the court fixes the compensation on the basis of services performed, and not on the basis of services to be performed, or -on a willingness to perform services. From the time of his appointment to the date of his- statutory demise not a service to this estate was rendered by Mr. Leahy. This is not a case where an officer in a contested election holds his office until ousted. In such case the successful contestant may be entitled to recover for what he would have earned. This is not such a Gase and cannot be governed by the same rules. Administrators and receivers must serve the estate before they are entitled to compensation. Their compensation, under the law, is based upon actual service in the preservation and distribution of the estate. "Willingness to perform does not suffice.

Now is this a moot case? What could we do by our judgment? We could not change the fact that, by operation of law, Mr. Leahy was rendered powerless to act, when the appeal of Margaret Harrison et al. in the will case was dismissed. We could not change the fact that Mr. Leahy has performed no services for the estate, for this fact is emblazoned on every page of this record. We could not change the law. that it is only for services actually performed that an administrator or receiver‘is entitled to compensation. The most that we could do would be to say that there was a period during which Mr. Leahy might have rendered services to the estate, but that period expired before Ms appeal was submitted to us for our consideration. We can’t restore him to Ms place. He can’t claim for services which, he never rendered, and the time has passes for him to render any services to the estate. These thing’s make the case before us a moot case pure and simple, and the appeal should be dismissed, as in the Imel case supra.. i

Appeal.

III. Whilst I think it can be demonstrated with the accuracy and precision of an Indian’s arrow, that an appeal will lie from the probate court to the circuit court from an order suspending the letters testamentary of an executor under a will, yet if either of the two propositions above is well founded, such a discussion would be a useless one, and we therefore pass it. But for the reasons expressed in paragraphs one and two, supra, the appeal herein should be dismissed.

It is so ordered.

All concur, except Blair and Williams, JJ., who dissent; Bond, Jconcurs in paragraph two and the result.