State Ex Rel. Dryden v. Thym

282 S.W.2d 178, 1955 Mo. App. LEXIS 184

• Court: Missouri Court of Appeals
• Decided: September 20, 1955
• Docket: 29141
• Status: Published

Opinions

HOUSER, Commissioner.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis dismissing a “Petition for Writ of Prohibition or Mandamus.” Relators, as creditors holding allowed claims against the Estate of Emil P. Rosenberger, deceased, filed this petition against the respondent Special Judge pro tem. and the later appointed Judge of the Probate Court of the City of St. Louis, alleging the following facts: Both Lucille Rosenberger, widow and executrix named in the will of Emil P. Rosenberger, deceased, and Glover E. Dowell, successor-executor named therein, have died. (For the sake -of brevity we will refer to the parties by their first names after identifying them.) Rival applications for the issuance of letters of administration on the Estate of" Emil were made to the Probate Court of the City of St. Louis by the creditors and by Mary Jane Paulus) a daughter of Emil. After a hearing on the objection of the creditors to the appointment of Mary Jane the Special Judge pro tem. appointed her as administratrix c. t. a., d. b. n. and denied the two applications filed by the creditors for letters. In this petition relators charged that the order of appointment was void because (1) Mary Jane is disqualified by law from acting as Administratrix of the Estate of Emil for ■the reason that she is Administratrix of the Estate of Lucille, the latter of whom was formerly the Executrix of the Estate ■of Emil; (2) Mary Jane is not a suitable .and competent person to act as Administra-trix of the Estate of Emil for the reason that by acting as administratrix of both estates she would be representing conflicting interests and would be. required to account with herself; and further, that as .an heir of Kate Rosenberger, deceased; Mary Jane would be representing conflicting interests by acting as such administra-trix because the heirs of ■ Kate claim an ■undivided one-half interest in a certain tract of land which was actually owned by Emil, but which was inventoried in his •estate as though • he owned only an undivided one-half' interest therein; that to pay relators’ allowed claims, there being ■insufficient personal property in the Estate ■of Emil to satisfy them, Mary Jane as ad-ministratrix would be compelled to file a suit in equity against the heirs of Kate, .naming herself as one of the defendants, for the purpose of quieting 'and clearing the title to the land in the name of Emil; and (3) relators are the only persons “entitled to distribution” and as such are entitled to administer the estate. It is alleged that the probate judge was without legal .authority to enter the order; that the •allowed claims in the Estate of Emil exceed •$50,000 and the total value of the assets does not exceed $26,000, as a consequence •of which the heirs of Emil, including Mary Jane, would not share in the distribution of the estate, are not entitled to distribution, .and are not entitled to administer.

Relators prayed for a writ of prohibition ••to prevent respondents from carrying out their orders and from administering the ■oath of office to and qualifying Mary Jane .as administratrix, or in the alternative for •a writ of mandamus to command' respondents to set aside, strike and expunge the -order appointing Mary Jane as administra-trix and to appoint one of the creditors, or a representative of the creditors, as administrator.

An order to show cause issued and a return in the nature of a general denial, coupled with a plea of laches and limitations, was filed by respondents.

The questions before us on this appeal are the validity of the order granting Mary Jane and denying relators letters of administration, the authority of the probate court to make the order, and whether the order constitutes an abuse of discretion.

Relatprs’ first point is that by Section 461.110 RSMo 1949, V.A.M.S. Mary Jane is absolutely disqualified from acting as ad-ministratrix of the estate of her father, since she is the acting administratrix of the estate of her mother, the latter of whom was the executrix of the estate of her father. Section 461.110, supra, after providing that no probate judge, clerk or deputy in his own county, and no person under 21 years of age or of unsound mind shall be an executor or administrator, concludes as follows: “No executor of an executor, in consequence th.ereof, shall be executor oí the; first testator.” , Relators take the position that by virtue of this section an executor of an executor is absolutely disqualified from acting as executor of the first testator, and urge that Mary Jane is thereby disqualified to, accept appointment as adminis-tratrix. Relators’ construction does not take into consideration the historical development of this statute, or the fact that the statute applies to executors and not to administrators.

By the English common law a sole executor, or the only surviving executor of several co-executors, could transmit his office by his own will to his own executor, thus delegating the confidence originally reposed in him to the person in whom he himself confided. Accordingly the executor- of an executor could pass on the estate in a series of appointments, as long as there was no intervening intestacy to break the chain of representation, until the estate was finally settled and distributed. Thompson on Wills, 3rd Ed., § 553, p. 776; Schouler on Wills, Executors and Administrators, 6th Ed., Vol. 3, § 1531, p. 1758; Williams on Executors, 12th Ed., Vol. I, p. 152; Blackstone’s Commentaries (1897), Vol. 2, p. 961. Many states of the Union have changed the common law rule by statute. In this jurisdiction, under § 461.110, supra, the executor’s executor no longer represents the executor’s testator. State ex rel. Karrenbrock v. Mississippi Valley Trust Co., 209 Mo. 472, 108 S.W. 97, loc. cit. 100. The statute, however, has no bearing in the instant case. It acts on executors, not on administrators. Mary Jane is not an executrix by appointment in the will of Lucille. She is an administratrix by appointment of the probate court. Neither Lucille as Executrix of the Estate of Emil nor Glover Dowell as successor-executor undertook by will to transmit the office to Mary Jane. Mary Jane is not the executrix of an executrix and is not disqualified by § 461.110, supra, from acting as Ad-ministratrix of the Estate of Emil.

Upon the death of the executrix and successor-executor named in the will of Emil, there being unpaid allowed claims against the estate, it became the duty of the probate court to grant letters of administration of the goods remaining unadminis-tered “to those to whom administration would have been granted if the original letters had not been obtained.” Section 461.-540 RSMo 1949, V.A.M.S. This reference is to Section 461.030 RSMo 1949, V.A.M.S., which provides as follows:

“1. Letters of administration shall be granted

“(1) To the husband or wife;

“(2) To those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation shall believe will best manage and preserve the estate.

“2. Provided, however, if the court, or judge in vacation, should believe no one of such persons entitled to administer is a competent and suitable person, some other person than those above mentioned may be appointed.”

Relators’ second point is that Mary Jane is not a competent and suitable person within the meaning of said § 461.030 for the following reasons:

(1) That in filing a settlement to the time of the death of her mother and also a settlement thereafter until the date of her appointment Mary Jane would be required “to file settlements with herself” and thus would be representing conflicting interests. Where the interests of two estates conflict, as in State ex rel. Flick v. Reddish, 148 Mo.App. 715, 129 S.W. 53, and in State to Use of Miller’s Adm’r v. Bidlingmaier, 26 Mo. 483, (where there was a demand in behalf of one estate to be presented for allowance against the other) the same person cannot act as administrator for both. In the instant case, however, there is no evidence that either estate is indebted to the other, or that litigation between the two estates is pending or contemplated, or that in any other wise there is any conflict between the interests of the two estates. Neither in their briefs nor in the argument have relators revealed in what particulars the claimed conflict exists, and we find none.

(2) That as Administratrix of the Estate of Emil, Mary Jane would be required to file an adversary suit against the heirs of Kate, including herself, to clear and quiet title as alleged in the petition, thus resulting in an irreconcilable conflict of interests on the part of Mary Jane. Relators cite the cases of Arrington v. McCluer, 326 Mo. 1011, 34 S.W.2d 67, and Davis v. Roberts, 206 Mo.App. 125, 226 S.W. 662, which advert to the rule that persons asserting interests hostile to the trust involved in an executorship are not suitable persons to. execute the trust.

The precise question is whether on the evidence before him the special probate judge abused his discretion by appointing one who asserts or claims interests hostile to the interests entrusted to her, or whose interests necessarily conflict with those of the estate. Relators had the burden of showing' that there is a real and substantial controversy as to the ownership of the one-half interest referred to in the petition and reasonable cause to believe that the entire interest in the real estate belonged to Emil. Davis v. Roberts, supra, 226 S.W. loe. cit. 664. An experienced title attorney testified that the inventory in the Estate of Emil lists his ownership of a one-half interest only in certain real estate, whereas Emil asserted ownership to the whole of the land by paying taxes thereon, and that Emil did own the entire interest therein; that there is a deed of record from Emil to Kate to certain lands which they had inherited from their father in which it was recited that the conveyance was executed for the purpose of effecting a mutual partition of the lands jointly owned by them, but that the attorney had found no record of any deed from Kate to Emil or Lucille to any interest in any lands. In his opinion there was an outstanding unrecorded deed from Kate to Emil, and it would be necessary for the Estate of Emil to file suit against the heirs of Kate, including Mary Jane, to quiet the title in Emil to the entire interest in the inventoried real estate. It was in evidence that the record title to the land revealed only a one-half interest in Emil and a one-half interest in Kate and that none of the real estate in question was listed in the inventory filed in the Estate of Kate. Mary Jane testified that she owned a one-third interest in the real estate in which her Aunt Kate died seized. She disclaimed familiarity with the inventory filed in the Estate of Emil, and stated that she did not know whether she claimed any interest as an heir of Kate in a 260-acre farm, a one-half interest in which was inventoried as a part of Emil’s estate. When asked whether, as ad-ministratrix, she intended to ask for an order of court to sell the real estate to pay creditors she testified that she intended to do what the probate judge and her attorney advised her to do. She further testified that neither she nor the Estate of Lucille had any interest, directly or as assignee, in any of the claims allowed against the Estate of Emil. Relators made an offer of proof that it would be necessary for her as administratrix to institute a suit against the heirs of Kate to clear title to the 260-acre farm and another 360-acre farm.

Under the evidence we cannot convict the probate judge of an abuse of discretion in the finding, implicit in the order of appointment, that Mary Jane does not assert or claim interests hostile to or which conflict with the interests of the Estate of Emil. The burden of proof to which we have referred was not met by testimony showing that Mary Jane claims a one-third interest in unspecified real estate of which Kate died seized, and an attorney’s surmise that there is an outstanding unrecorded deed from Kate conveying an interest in land to Emil, which will necessitate a suit to quiet title. No real and substantial controversy was shown to exist. Nor was there any substantial evidence of the execution or delivery of the putative deed. Consequently there was no reasonable cause to believe that Emil owned the whole, and not merely a one-half, interest in the land.

The last question before us is whether relators, whose allowed claims as creditors will exhaust this insolvent estate thus leaving nothing for the heirs, are among the preferred class of “those who are entitled to distribution of the estate,” within the meaning of § 461.030, supra, so as to be entitled to control the appointment of an administrator de bonis non, to the exclusion of the next of kin. This question must be answered in the negative. From a consideration of the common law and statutory background of the present day office of statutory administrator, the wording of the statute, its construction through the years by the courts and text writers of this state, the wording and meaning of other sections of Chapter 461, RSMo 1949, V.A. M.S. relating to Executors and Administrators, the customary practice and procedure of probate courts in this state, and from the standpoint of practical considerations in the administration of estates, we are firmly convinced that, regardless of the solvency or insolvency of the estate, the distributees referred to in § 461.030, supra, are the sanie persons as the distributees referred to in § 468.010 RSMo 1949, V.A.M.S. relating to intestate succession and are entitled to preference in the right to administer the estate of their intestate in the same rank as they enjoy the right to inherit. Conversely, creditors are not distributees within the meaning of par. 1(2) of § 461.030, supra, and are not members of' that preferred class.

By the English law creditors were not given priority of right to administer. Indeed, the right to letters of administration did not exist at common law. That right is of purely statutory origin. Our present day statutory administrators find their first English counterparts in Statute 31 Edward III, Ch. 11, requiring ordinaries to depute the nearest and most lawful friends of deceased persons to administer their goods. The “next and most lawful friend” of the intestate was interpreted to be the next of blood that is under no legal disabilities. A later statute (21 Henry VIII, Ch. 5) permitted the ecclesiastical judge to grant administration either to the widow or to the next of kin, or both, and to exercise his discretion in selecting one from several persons of the same degree of kindred. 2 Cooley’s Blackstone 495, 496; Leakey v. Maupin, 10 Mo. 368; 1, Limbaugh, Missouri Practice, § 558.

Under the settled meaning and construction of the wording employed in par. 1(2) of § 461.030, supra, creditors are not within the preferred class. The term “distribution” when applied to the estate of a deceased person refers to the ultimate division of the estate among the next of kin, in case of intestacy, or among the beneficiaries under a will, after the estate is free from debt. Thomson v. Tracy, 60 N.Y. 174, loc. cit. 180. As there pointed out, the term is defined in Bouvier’s Law Dictionary to be, in practice, “the division, by order, of the court having authority, among those entitled thereto, of the personal estate of an intestate, after payment of the debts and charges; and, sometimes, ‘the division of a residue of both real and personal esl tate, and, also the division of an estate according to the terms of a will.’ ■’ In Kent’s Commentaries, Vol. 2, p. 420, the term “distribution” is exclusively applied to the residue of the personal estate remaining after the payment of debts. Legatees and heirs receive “distribution” of the estate, whereas creditors receive “payment” of their claims. Creditors, as such, do not participate in the “distribution” of an estate. It is further to be observed that par. 1(2) of § 461.-030, supra, does not limit the right of priority to those who will actually share in the division of the residue of the estate, but rather grants it to those who are entitled to share therein.- Although the right might prove valueless from a financial standpoint because of the insolvency of the estate, such an eventuality does not impair the existence or validity of the right. In re Brown’s Estate, 153 Misc. 41, 274 N.Y.S. 496, loc. cit. 499.

The courts of this state and local text book writers have recognized that Missouri has adopted the principle of the English system that those nearest in relationship and interest have the right of priority to administer the estates of deceased persons. Mullanphy v. St. Louis County Court, 6 Mo. 563; In re Estate of Hill, 102 Mo.App. 617, 77 S.W. 110, loc. cit. 111: “Appellant, a. nonrelative and stranger in biood to the-deceased, could not. have applied for letters as a matter of right under the provisions of' the statute”; Hollingsworth v. Jeffries, 121 Mo.App. 660, 97 S.W. 632, loc. cit. 634: “In-these enactments is observed the fixed policy of entrusting the administration of the estate of a deceased person to one who, by-reason of his heirship, has a personal interest in the estate rather than to one who is a stranger thereto”, and “Plaintiff, the only heir of the decedent who resided in this state, had the prior right to administer * * * ”; State ex rel. Burns v. Romjue, 136 Mo.App. 650, 118 S.W. 1188, loc. cit. 1190; “* * * relators * * * being-the only resident heirs, were possessed of the first right to administer * * * ” State ex rel. Lillard v. Tompkins, Mo.App.,. 262 S.W.2d 316, loc. cit. 317: “* * * Relator, as the sole resident distributee,. *' * ' * is entitled to the appointment * * * ”; Kelley’s Missouri Probate Law and Practice, Sth Ed., § 119; 1 Limbaugh, Missouri Practice, §§ 559, 561.

This is not to say that creditors •may not act as administrators, in proper ■cases. If those entitled to preference are •not competent or suitable, § 461.030 subd. 2, supra, or, upon being cited under Section 461.040- RSMo 1949, V.A.M.S., fail to administer within the time appointed, or renounce, or are nonresident, Section 461.050 RSMo 1949, V.A.M.S., some other person ■deemed suitable may be appointed.- In such ■cases creditors frequently are appointed. The appointment of a stranger or person not an heir of the deceased prior to the expiration of the 30-day period prescribed in § 461.040, supra, however, is void. In re Graves’ Estate, Mo.App., 73 S.W.2d 844; In re Wilson’s Estate, Mo.App., 16 S.W.2d 737; Pikey v. Riles, 223 Mo.App. 921, 20 S.W.2d 550.

A further and very practical consideration favors a construction adverse to the contention of relators. If it were the rule that creditors of insolvent estates had the prior right to administer, to the exclusion of blood relatives, the orderly and expeditious administration- of the- estates of deceased persons would, be interrupted and ■embarrassed. Intolerable delays would ensue. In order to determine whether an estate was solvent or insolvent a preliminary inquiry would be required in all doubtful •cases. The right to administer would depend in many cases upon the opinions of ■experts called to testify as to the value of real or personal property listed in the inventory, or, conceivably, upon the fluctuations of the stock market. In re Brown’s Estate, supra, 274 N.Y.S. loe. cit. 499. The solvency or insolvency of an estate would depend upon the extent and validity of various claims filed or to be filed against an estate, claims which might require extensive litigation before the question was settled. Often the nature of the assets of an estate cannot be determined until after a personal representative authorized to discover and collect them has been appointed and qualified. In the enactment of § 461.030, supra, the General Assembly did not intend to establish a system of priority of administration based upon the determination of the fact question of the solvency or insolvency of estates, but-intended to establish a definite •system of priority depending upon inheritable interest in the estate, as a matter of law.

The judge of the probate court had jurisdiction to make the appointment, and in so doing did not abuse his discretion. Accordingly, there was no error in the action of the circuit court in dismissing relators’ petition. The judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM.

The, foregoing opinion of HOUSER, C., is adopted as the opinion of the court.

The judgment of the circuit court is, accordingly, affirmed.

ANDERSON, P. J., and SAM C. BLAIR and FRANKLIN FERRISS, Special Judges, concur.