Arseneau v. Brown
Arseneau v. Brown
Opinion of the Court
This is an appeal from an order of the Probate Division of the Circuit Court of Bollinger County (“the probate division”) denying an application for letters of administration by a putative daughter of a decedent, denying a like application by a sister of the decedent, and directing that letters be issued to the public administrator.
Robert A. Seabaugh (“Robert”) died December 30,1981, at age 65. On January 20, 1982, Ethel Taylor (“Ethel”) filed a petition in the probate division to require administration of Robert’s estate. § 473.020, RSMo 1978, as amended by Laws 1980, p. 455. Ethel’s petition alleges Robert died intestate and that she, being his sister, is entitled to administer, as are two other sisters and a brother, the four being Robert’s “lawful heirs at law.” § 473.110.2, RSMo 1978, as amended by Laws 1980, p. 459.
On January 28, 1982, appellant (“Jacqueline”) filed an application for letters of administration in the probate division, alleging she is Robert’s daughter, and listing no other heirs. In a brief accompanying her application, Jacqueline states her mother (“Maxine”) married Robert September 30, 1943, that Jacqueline was born June 24, 1945, and that Maxine and Robert were divorced October 24, 1947. Jacqueline supplied the probate division a copy of her “birth certificate” and copies of certain documents from the court records of the divorce case, including the decree as shown in a judgment book. Jacqueline asserts her status as Robert’s daughter is res judicata by reason of the- divorce decree, and that Robert’s siblings are collaterally estopped from claiming Jacqueline is not Robert’s child.
On February 16, 1982, Ethel filed a brief in the probate division, denying that Jacqueline is Robert’s child and asserting that Jacqueline was not adjudicated to be so in the divorce case.
On March 3, 1982, the judge of the probate division entered an “Order Directing Issuance of Letters.” The order states “that there has been no evidentiary hearing and no determination of heirship proceeding nor other litigation in which an adjudication has been made as to who the heirs of Robert A. Seabaugh are and, hence, who is entitled to the issuance of Letters of Administration.” The order continues, “The Court, in entering this order, makes no finding, determination or adjudication as to the heirship of Robert A. Seabaugh, deceased.” The order further provides, “The Court does hereby find, order and adjudge that the divorce proceeding ... and the judgment entered therein, does not make res judicata the issue of the parenty [sic] of Jacqueline K. Seabaugh Arseneau; and the Court finds that the issue of whether or not Jacqueline K. Arseneau was the daughter of Robert A. Seabaugh was not adjudicated in the aforementioned case .... ” The order declares that by reason thereof, Robert’s “heirs” are not collaterally estopped from challenging the allegation that Jacqueline is Robert’s child. The order contains a finding that except for Ethel, Robert’s siblings have not applied for letters of administration, and an additional finding that Jacqueline is not acquainted with the
Having set out these findings and others, the order declares that neither Jacqueline
On March 5, 1982, Brown made application, and letters were issued to him the same day.
Jacqueline’s notice of appeal states she appeals from the Order Directing Issuance of Letters “in which the Court finds, orders, and adjudges that the heirs of Robert A. Seabaugh are not collaterally estopped from challenging the allegation that Jacqueline Kay Seabaugh Arseneau is the child of Robert A. Seabaugh, entered in this action on the 3rd day of March, 1982.”
Ethel did not appeal.
Brown filed a motion in this Court to dismiss the appeal, the basis of the motion, as we understand it, being that the order of March 3, 1982, is not final for purpose of appeal because it does not dispose of all issues between all parties. Specifically, Brown’s motion states that the probate division determined it did not have jurisdiction to determine whether Jacqueline is Robert’s daughter.
Brown’s motion was taken with the case.
We hold the probate division’s order is not appealable, but for different reasons than those asserted by Brown.
Historically, Missouri has allowed no appeal from an order granting, or denying, an application for letters of administration. Maus, Probate Law and Practice (3 Mo.Prac.Series) § 565 (1960). The rule originated in State ex rel. Grover v. Fowler, 108 Mo. 465, 18 S.W. 968 (banc 1891). There, a daughter and a son applied separately for letters of administration on the estate of their deceased mother. The probate court
After Grover, the task of identifying ap-pealable and non-appealable probate court orders proved troublesome, and the holdings were not always consistent or easily reconciled.
In State ex rel. Adamson v. Collier, 62 Mo.App. 38 (1895), three persons were appointed administrators of a decedent’s estate. Thereafter, a woman claiming to be the decedent’s widow applied for letters of administration, but the probate court took no action on her application. A few weeks later she filed a petition for removal of the administrators, coupled with a request that she be appointed. The probate court, after a hearing, denied the petition and the woman filed an affidavit and bond for appeal to the circuit court. The probate court denied the appeal, and the woman obtained an alternative writ of mandamus from the circuit court. After hearing, the circuit court denied a peremptory writ, and the woman appealed. The St. Louis Court of Appeals reversed and remanded with directions to award a peremptory writ compelling the probate court to allow the appeal.
In Burge v. Burge, 94 Mo.App. 15, 67 S.W. 703 (1902), one of two executors named in the decedent’s will died and the other resigned. Letters of administration with will annexed were issued to a son of the decedent. Later, a woman claiming to be the decedent’s widow applied for letters, asserting priority to administer. The probate court revoked the son’s letters and issued letters to the woman. The son appealed to the circuit court, and that court, deciding the issue anew,
Grover was held controlling in Looney v. Browning, 112 Mo.App. 195, 86 S.W. 564
In State ex rel. Pinger v. Reynolds, 121 Mo.App. 699, 97 S.W. 650 (1906), the Kansas City Court of Appeals held mandamus lay in the circuit court to compel the probate court to allow an appeal from its order denying an application by two minor children to (a) remove the public administrator as curator of their estates, and (b) appoint an individual chosen by them (they being over age 14 and entitled to make such choice). The public administrator had been appointed simultaneously with the probate court’s rejection of the children’s choice. The Court of Appeals, relying on Burge, held the probate court order appealable, characterizing it as an adverse order made on a claim of right, appealable under a clause allowing appeal from “any final order or judgment of the probate court” in like manner and with the same effect as appeals were allowed in cases of administration of decedents’ estates. The Court of Appeals declared its holding was in harmony with Grover.
In Flick v. Schenk, 212 Mo. 275, 110 S.W. 1074 (1908), a widow began administration of her deceased husband’s estate, but died, and a son applied for appointment as administrator de bonus non. Three other heirs objected, and the probate court appointed the public administrator. The son appealed to the circuit court, which affirmed the probate court. The son then appealed to the St. Louis Court of Appeals, which dismissed the appeal on the authority of Grover, but deemed its holding to be in conflict with that of the Kansas City Court of Appeals in Burge, and certified the cause to the Supreme Court.
In re Brinckwirth’s Estate, 268 Mo. 86, 186 S.W. 1048 (1916), involved an application to remove the public administrator as curator of the estates of three minors. The application was made by two uncles, who sought appointment as guardians of the persons of the minors and curators of their estates. The probate court denied the application and the uncles appealed to the circuit court, which affirmed the probate
In Ex parte Smith, 197 Mo.App. 200, 193 S.W. 288 (1917), the St. Louis Court of Appeals, citing Brinckwirth’s Estate, overruled its holding in Looney. In Smith, the mother of a young child died and the child’s maternal grandmother applied for appointment as guardian. The probate court found the child’s father unfit, and appointed the grandmother. The father appealed. The Court of Appeals held the order appealable, and, in addition, that inasmuch as the father had posted an appeal bond, the force and effect of the order was suspended, leaving the cause pending for trial de novo in circuit court.
After Brinckwirth’s Estate and Smith, we find no Missouri case holding that an order granting or denying an application for appointment as guardian of the person of a minor, or curator of his estate, is not appealable.
There has thus been a general retreat from Grover, and its offspring Looney, so far as appeals from orders granting or denying applications for letters of guardianship are concerned. No such departure has occurred, however, regarding orders granting or denying applications for letters of administration in decedents’ estates.
In Marshall v. Shoemaker’s Estate, 164 Mo.App. 429, 144 S.W. 1120 (1912), the St. Louis Court of Appeals, citing Grover and Flick, held that an administrator appointed by the probate court in vacation could not appeal from the same court’s order at the ensuing term rejecting his appointment and appointing the public administrator. The appointment in vacation was only temporary, subject to confirmation or rejection at the next term, and when rejected, the right to administer ceased.
In Lucitt v. Toohey’s Estate, 338 Mo. 343, 89 S.W.2d 662 (1935), the Supreme Court, citing Grover, held no appeal lay from a probate court order appointing the public administrator as administrator of a decedent’s estate. 89 S.W.2d at 664[4].
In Stobie v. Stobie, 183 S.W.2d 609 (Mo.App. 1944), the decedent’s brother sought letters testamentary as successor executor. The probate court denied the application and appointed the public administrator. The brother appealed to the circuit court, which reached the same result. The Court of Appeals, citing Flick and Lucitt, held the order of the probate court denying the brother’s petition non-appealable, thus the circuit court acquired no jurisdiction. The judgment of the circuit court was reversed and remanded with directions to dismiss the brother’s appeal. Stobie appears to be the most recent case in point.
If Grover, Flick, Marshall, Lucitt and Stobie compel dismissal of Jacqueline’s appeal, one may ask what remedy, if any, an aggrieved party has in a case like this. The answer, according to Grover, is mandamus, but cases since Grover in which aggrieved parties have resorted to mandamus have reached diverse results.
In State ex rel. Abercrombie v. Holtcamp, 267 Mo. 412, 185 S.W. 201 (1916), the decedent, domiciled in Ohio, left a will naming the relator as executor. Relator resigned as executor in Ohio, then later, after ancillary administration had begun in Missouri, sought letters in Missouri. The probate court found that relator had no absolute right to qualify because of his earlier renunciation. The probate court appointed another as administrator with will annexed. Relator sought mandamus in the circuit court to compel the probate court to permit him to qualify as executor, and to revoke the appointment of the administrator w.w.a. The circuit court granted a peremptory writ. On appeal, the Supreme Court held that the probate court was required to determine the legal effect of the resignation in Ohio, and whether this constituted a resignation in Missouri, a decision that required the exercise of judicial discretion. Holding that the exercise of discretion cannot be controlled by mandamus, the Supreme Court reversed the circuit court and directed that the writ be quashed. The Supreme Court said that had there been nothing to preclude relator from asserting his original right to letters, mandamus would have been the proper remedy.
A similar result was reached in State ex rel. Thompson v. Nortoni, 269 Mo. 563, 191 S.W. 429 (banc 1916). There, a widow ap
An applicant for letters of administration de bonis non successfully used mandamus in State ex rel. Riesmeyer v. Holtcamp, 273 Mo. 124, 200 S.W. 294 (banc 1917). There, the decedent’s next of kin were a brother, a sister, and several nieces and nephews. The sister waived her right to letters of administration, asking that letters be issued to the brother. He was appointed, but died before completing administration, and the public administrator took charge of the estate. The sister thereupon filed an application for letters of administration de bonis non, together with a motion to remove the public administrator. The probate court denied relief and the sister sought mandamus in the Supreme Court. Holding that the power of a supervising court to compel a probate judge to appoint an administrator in accordance with statutory priority is “too well settled for controversy,” the Supreme Court made peremptory its writ ordering the probate judge to issue letters to the sister. The Supreme Court held her waiver affected only her original right to be appointed administratrix, and not her right to be appointed administratrix de bonis non after the first administrator’s death. The probate court was therefore not required to pass upon any waiver or renunciation, and no question of judicial discretion was presented.
In State ex rel. Wilson v. Martin, 223 Mo.App. 1176, 26 S.W.2d 834 (1930), a brother of the decedent sought mandamus to compel the probate court to appoint him administrator. The St. Louis Court of Appeals acknowledged that mandamus lay to compel the probate court to perform a ministerial duty, citing Grover and Flick, but held mandamus did not lie when the action of the probate court required the exercise of judicial discretion, citing Thompson. Noting that the brother had been found unfit by the probate court, and finding nothing to indicate that the probate court’s discretion was exercised arbitrarily, the Court of Appeals affirmed the circuit court’s denial of relief.
In State ex rel. Fansher v. Guinotte, 227 Mo.App. 902, 58 S.W.2d 1005 (1933), mandamus was held the proper remedy for the decedent’s granddaughter who sought appointment as administratrix with will annexed. The probate court appointed the granddaughter co-administrator with a non-relative. The Court of Appeals held the granddaughter was entitled to priority, and to be appointed alone, unless the probate court found she was not competent and suitable. Having appointed her co-administrator, the probate court was deemed to have found her suitable, and was without authority to appoint a co-administrator. A peremptory writ was issued. The Court of Appeals rejected the argument that the granddaughter’s proper remedy was appeal. 58 S.W.2d at 1009.
Mandamus has continued to be the remedy employed by those who were successful in obtaining relief from adverse rulings by probate courts on applications for letters in decedents’ estates. State ex rel. Gregory v. Henderson, 230 Mo.App. 1, 88 S.W.2d 893
The most recent mandamus ease appears to be State ex rel. Lillard v. Tompkins, 262 S.W.2d 316 (Mo.App. 1953). There, a decedent’s half niece petitioned the circuit court to compel the probate court to revoke the appointment of a first cousin of the decedent as administrator, and to appoint the half niece. The circuit court denied relief. While the cause was under submission to the Court of Appeals, the first cousin made final settlement and resigned as administrator, thus rendering that aspect of the cause moot. The Court of Appeals noted that inasmuch as there was no present administrator, and the half niece was the sole resident distributee, she was entitled to be appointed unless found by the probate court to be incompetent and unsuitable. That issue was not before the probate court in the earlier proceedings, and thus not before the circuit court or the Court of Appeals. The judgment of the circuit court was affirmed.
It thus appears that since Grover, no one has successfully appealed in Missouri from a probate court order granting or denying letters of administration in a decedent’s estate,
The right of appeal is statutory. Without underlying statutory authority there is no right to an appeal. United Labor Committee, Inc. v. Ashcroft, 572 S.W.2d 446, 447[1] (Mo.banc 1978). The statute pertinent to Jacqueline’s appeal is § 472.160, RSMo 1978, as amended by Laws 1980, p. 452.
We are bound to follow the last controlling opinion of the Supreme Court of Missouri. Mo. Const. art. V, § 2; State v. Dunn, 615 S.W.2d 543, 550[15] (Mo.App. 1981). We believe Grover, Flick and Lucitt are controlling. Accordingly, Jacqueline’s appeal must be dismissed.
In reaching this conclusion, we have not overlooked a line of cases asserting there is a right to appeal from any final judgment or order of the probate court in all cases not expressly prohibited by law. This line includes Pope, supra, 469 S.W.2d 841, along with In re Scott’s Estate, 237 Mo.App. 1260, 173 S.W.2d 115 (Mo.App. 1943); In re McMenamy’s Guardianship, 307 Mo. 98, 270 S.W. 662 (banc 1925), and Coleman v. Farrar, 112 Mo. 54, 20 S.W. 441 (banc 1892). All of these cases cite § 478.070(4), RSMo 1969,
We have also studied In re Estate of Erwin, 611 S.W.2d 564 (Mo.App. 1981), holding that an appeal lies from an order refusing to remove or revoke the appointment of an administrator. 611 S.W.2d at 567[6]. The appeal here is not from that type order.
In sum, we have a narrow issue ruled by old, but apparently viable, authority to which we are required to adhere. State ex rel. Board of Public Utilities v. Crow, 592 S.W.2d 285, 288[3] (Mo.App. 1979). Whether the law should be changed is not for us to decide.
We realize our holding leaves the parties where we find them. As their dispute proceeds, they may find In re Estate of Fedina, 491 S.W.2d 552 (Mo. 1973), Younghaus v. Lakey, 559 S.W.2d 30 (Mo.App. 1977), N.R. v. R.J.D., 588 S.W.2d 76 (Mo.App. 1979), Webb v. First National Bank & Trust Co. of Joplin, 602 S.W.2d 780 (Mo.App. 1980), and Matter of the Estate of Cannon, 622 S.W.2d 752 (Mo.App. 1981), helpful.
Appeal dismissed.
. Jacqueline’s application for letters shows her address as Rural Route 2, Kankakee, Illinois.
. An inventory and appraisement of Robert’s estate, filed by Brown, lists real estate of the aggregate value of $43,000 and personal property of the aggregate value of $2,175.
. We find no mention of lack of jurisdiction in the probate division’s order.
. Until January 2, 1979, there was a probate court in each county. Probate courts were abolished by the amendments to article V of the Constitution of Missouri adopted by election August 3, 1976, effective January 2, 1979. Since the latter date, the probate division of the circuit court has had original jurisdiction of matters formerly within the original jurisdiction of the probate court. § 472.020, RSMo 1978, effective January 2, 1979.
. At that time, appeals from a probate court were taken to the circuit court, and the latter became possessed of the cause, to hear, try and determine it anew, without regard to any error, defect or other imperfection in the proceedings of the probate court. § 292, RSMo 1889, carried forward, as amended, as § 472.250, RSMo 1969. This procedure prevailed until January 2, 1979, when probate courts were abolished (footnote 4, supra). Since January 2, 1979, appeals from the probate division of the circuit court have been taken to the appropriate appellate court. § 472.160.1, RSMo 1978, effective January 2, 1979.
.§ 285, RSMo 1889, provided:
“Appeals shall be allowed from the decision of the probate court to the circuit court, in the following cases: First, on all demands against an estate exceeding ten dollars; second, on all settlements of executors and administrators; third, on all apportionments among creditors, legatees or distributees; fourth, on all orders directing the payment of legacies, making distribution or making allowances to the widow; fifth, on all orders for the sale of personal estate because distribution cannot be made in kind; sixth, on all orders for the sale of real estate; seventh, on judgments for waste; eighth, on proceedings to recover balances escheated to the state; ninth, on all orders revoking letters testamentary or of administration; tenth, on or*951 ders making allowances for the expenses of administration; eleventh, on orders for the specific execution of contracts; twelfth, on orders compelling legatees and distributees to refund; thirteenth, on the refusal of the court to order sale of real estate to pay debts or legacies; fourteenth, on refusal of the court to order distribution or apportionment among creditors; fifteenth, and in all other cases where there shall be a final decision of any matter arising under the provisions of this chapter. And the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration.”
The present statute is § 472.160.1, RSMo 1978, as amended by Laws 1980, p. 452. It appears in footnote 17, infra.
. Footnote 5, supra.
. Flick v. Schenk, 136 Mo.App. 164, 117 S.W. 93 (1905).
. § 285, RSMo 1889 (footnote 6, supra), on which Grover was based, was carried forward in RSMo 1899 as § 278. Flick, 110 S.W. at 1075; Appendix, Former Probate Laws, Vol. 26A, V.A.M.S. (1956), p. 413, § 467.010.
. There is, however, a holding that no appeal lies from a probate court order adjudicating an elderly lady incompetent and appointing a guardian of her person and estate. In re Shor-tridge, 229 Mo.App. 1011, 84 S.W.2d 983 (1935). The appeal was by a nephew, the finding of incompetency was unchallenged, and the only reason for the appeal was the nephew’s dissatisfaction with the guardian.
. § 472.160.1, RSMo 1969, provided, in pertinent part: “Any interested person aggrieved thereby may appeal from the order, judgment or decree of the probate court or of the judge thereof in the following cases:
[[Image here]]
(15) In all other cases where there is a final order or judgment of the probate court under this code except orders admitting to or rejecting wills from probate.”
. § 472.200, RSMo 1969, provided, in pertinent part: “Appeals from orders, judgments or decrees of the probate court shall be taken to the circuit court-”
. § 478.070, RSMo 1969, provided, in pertinent part: “The circuit courts in the respective counties in which they may be held shall have power and jurisdiction as follows:
[[Image here]]
(4) Appellate jurisdiction from the judgment and orders of county courts, probate courts and magistrates, in all cases not expressly prohibited by law, and shall possess a superintending control over them, and a general control over executors, administrators, guardians, curators, minors, idiots, lunatics and persons of unsound mind.”
. An order setting aside an earlier order which (a) awarded a widower exempt property, a maintenance allowance and a homestead allowance out of the property of his deceased wife, (b) granted his request for a refusal of letters of administration on her estate under § 473.090, RSMo 1969, and (c) denied an application for letters of administration by two of her sisters, was held appealable as a “special order after final judgment” under § 512.020, RSMo 1969. In re Estate of Sympson, 577 S.W.2d 68 (Mo.App. 1978). The order setting aside the earlier order, and the earlier order itself, were entered by the circuit court, the cause having been transferred there after one of the parties filed a successful motion to disqualify the probate judge. In another case, In re Estate of O’Neal, 468 S.W.2d 671 (Mo.App. 1971), the decedent’s will named his daughter executrix. After the will was admitted to probate, several months passed with nothing being done. Eventually, a son applied for appointment as administrator c.t.a. Weeks later, the named executrix applied for letters. The probate court, after hearing, found the named executrix disqualified, and appointed the son. The named executrix moved for rehearing, and to revoke the son’s appointment. Her motions were denied and she appealed to circuit court, which affirmed the probate court. In the Court of Appeals, her only point concerned the timeliness of the probate court hearing. She did not challenge the finding that she was disqualified. The son raised no issue of appealability of the probate court order. The Court of Appeals found it unnecessary to decide the point raised by the named executrix, noting that her disqualification made it mandatory for the probate court to issue letters to some qualified person, and that the son’s qualifications had not been attacked. The judgment was affirmed.
. Footnote 4, supra.
. Footnote 5, supra.
. § 472.160.1, RSMo 1978, as amended by Laws 1980, p. 452, provides: “Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases:
(1) On the allowance of any claim against an estate exceeding one hundred dollars;
(2) On all settlements of the personal representative;
(3) On all apportionments among creditors, legatees or distributees;
(4) On all orders directing the payment of legacies, making distribution or making allowances to the surviving spouse or unmarried minor children;
(5) On all orders for the sale of assets of the probate estate;
(6) On all orders for the sale of real estate;
(7) On judgments for waste;
(8) On proceedings to recover balances es-cheated to the state;
(9) On all orders revoking letters testamentary or of administration;
(10) On orders making allowances for the expenses of administration;
(11) On orders for the specific execution of contracts;
(12) On orders compelling legatees and dis-tributees to refund;
(13) On all orders denying any of the foregoing requested actions;
(14) In all other cases where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate.”
. Footnote 6, supra.
. Footnote 13, supra.
. Footnotes 4 and 5 supra.
. § 512.020, RSMo 1978, provides, in pertinent part: “Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction ... from any final judgment in the case....”
Reference
- Full Case Name
- In the ESTATE of Robert A. SEABAUGH, Jacqueline Kay Seabaugh ARSENEAU v. Winford C. BROWN, Personal Representative, and Ethel Taylor
- Cited By
- 1 case
- Status
- Published