In re Estate of Rooney
In re Estate of Rooney
Opinion of the Court
On motion, the circuit court dismissed appellants’ appeal from the probate court, and from this judgment the present appeal is prosecuted.
The question for decision relates alone to the right of an administrator to appeal to the circuit court from a ruling of the probate court denying his discharge, when it does not appear the administrator had resigned or made a settlement of the estate in the probate court.
The record before us is meager, and it is difficult to ascertain therefrom the status of the estate, in the probate court, of which appellant is administrator. Enough appears, however, to show that appellant is the administrator of the estate of Peter Rooney, deceased, for so much is conceded throughout. As such administrator, appellant filed his motion in the probate court praying that court to discharge him, for the reason that his intestate, Peter Rooney, had, prior to his death, through executing a power of attorney for. that purpose, made a gift causa mortis of his entire estate to his brother, Andrew Rooney. The motion recites that the administrator had executed this power of attorney according to its tenor and, therefore,
It is urged that, though the -right of' appeal here is not afforded under any one of the first fourteen provisions enumerated in section 289', Revised Statutes 1909', pertaining to appeals from the probate to the circuit court, it is authorized under the fifteenth, or general provision of that section, when considered together with section 3956, Revised Statutes 19091, for it is said that statute authorizes appeals from the probate court in all cases not expressly prohibited by law. The right of appeal is purely statutory and there can be no doubt that an appeal will not lie from the probate to the circuit court, unless it is authorized by the statute. [See 2 Woerner’s Law of Administration (2 Ed.), sec. 513.] Section 2891, Revised Statutes 1909, which is parcel of our statutes on administration, enumerates fourteen specific instances in which an appeal from the probate to the circuit court may be prosecuted, and then provides, as a fifteenth subdivision, in more general terms, to the effect that appeals may be prosecuted “in all other cases where there shall be a final decision of any matter arising under the provisions of articles I to XIII, inclusive.
By the fifteenth, or general clause of section 2891, under which it is said the present appeal may be sustained, appeals are authorized in all other cases not theretofore enumerated where there shall be a final decision of any matter arising under the provisions of articles I to XIII, inclusive, of the chapter on Administration. This provision does not purport to authorize an appeal in every instance but only where a final decision has been had in the probate court on a matter arising under 'the provisions of articles I to XIII of the administration law. Where a final decision has been given by the probate court on a matter arising under the administration law, an appeal may be prosecuted therefrom, though it is not expressly authorized under the fourteen subdivisions of the statute theretofore recited. Such was our ruling in Hanley v. Holton, 120 Mo. App. 393, 96 S. W. 691. In the instant case, appellant as administrator had possession of the estate of the intestate, Rooney, and, as we understand the record, he turned over the possession of the entire property to Andrew Rooney, brother of deceased, and this, too, without any authority whatever from the probate court. It would seem from this that the administrator had undertaken to determine the whole matter according to his own judgment in the premises and not according to that of the court of which he was a.n officer. Having determined it, as he thought rightly, and given the property to Andrew Rooney, in obedience to a power of attorney made by the intestate in his lifetime, without any heed whatever to the rights of creditors, he insisted upon his right of discharge, and this, too, without having resigned his office or made a settlement. The administration statutes provide that an administrator may resign, but nothing of that kind appears here, and we are not called upon to determine
The judgment dismissing the appeal should be affirmed. It is so ordered.
Reference
- Full Case Name
- In re ESTATE OF PETER ROONEY JOHN A. HYDE, Administrator
- Cited By
- 1 case
- Status
- Published