Estate of Mallory v. Burlington & Missouri River Railroad , 53 Kan. 557 ( 1894 )

The opinion of the court was delivered by

Johnston, J.:

The district court of Atchison county dismissed an appeal from an order of the probate court of the same county revoking letters of administration which had been previously granted to Fannie Mallory, as administratrix of tbe estate of E. B. Mallory, deceased, and a review of this ruling is sought. It appears that, after her appointment as administratrix, she brought an action against the Burlington & Missouri River Railroad Company in Nebraska to recover damages for the injury of Mallory, through the alleged negligence of the employés of the railroad company. At the suggestion and upon application of the railroad company, a hearing was had before the probate court in regard to whether any grounds éxisted for administration, and as to the validity of the letters which had been issued. Both parties appeared, and, upon the testimony submitted, the court found that the decedent was not a resident or inhabitant of Kansas at the time of his decease, nor did he die intestate in any other state or country than the state of Kansas leaving any estate to be administered within the state of Kansas, nor especially any estate to be administered within the county of Atchison, nor was there any such estate to be administered in the state of Kansas or county of Atchison. The conclusion was, that the letters were issued without jurisdiction, and that such letters and the administration proceedings thereon, including the appointment and qualification of Fannie Mallory as administra-trix, were without jurisdiction in that court, and were null and void. ' An appeal was attempted to be taken to the district court by Fannie Mallory, after which the railroad company appeared there, and moved to dismiss the appeal, on the insufficiency of the affidavit for appeal, the failure to give an appeal bond, and other grounds which need no mention.

1- decedent11' SIS’

2' Mvocationof. The facts found by the probate court make it clear that it had no jurisdiction to issue letters of administration, and it ruled correctly in holding that its action in that respect was void for all purposes. (Perry v. St. J. & W Rld. Co. 29 Kas. 420.) As the riSht of Fannie Mallory to maintain an action against the railroad company was based upon the letters of administration, it was proper for the company to inquire into the authority upon which sbe acted. If the probate court bad no jurisdiction, and the letters were void, they conferred no power upon her to prosecute such an action, and recovery by her would not bar a subsequent suit by a legal administrator upon the same cause of action. It has been held that, where letters of administration have been issued without authority, the court in which they were issued may, upon its own motion, institute proceedings to set them aside, or it may be done by anyone interested in anywise in the estate, or upon suggestion of an amieus ourice. (Railroad Co. v. Swayne’s Adm’r, 26 Ind. 477; Woerner, Adm’n, § 268.)

3* Appeal bond. The affidavit for appeal is defective, but the principal and a sufficient ground for the order of the district court dismissing the appeal was the omission of the appellant to give an appeal bond. Under the statute, every appellant is required to file in the probate court a bond in such sum and with security as may be fixed and approved by the probate court, conditioned that he will prosecute the appeal, and pay all sums, damages and costs that may be adjudged against him. The only exception to this rule is, that no executor or administrator is required to enter into bond to entitle him to appeal. (Gen. Stat. of 1889, ¶2977; Civil Code, §577.) The only excuse given for the failure to give an appeal bond is the claim that the appeal was taken by the administratrix, and therefore that she was exempt from that requirement. The difficulty in sustaining that claim is, that her appointment and everything pertaining to the administration were utterly invalid. The probate court had no jurisdiction to grant letters of administration, nor to confer authority upon her, and, at the time when the attempt was made to take an appeal, the letters had been recalled and an order and decree entered declaring the administration and all the proceedings connected with the same null and void. In attempting to appeal, she was not acting as the representative of the estate, but was merely endeavoring to obtain a personal advantage. Not being an administratrix, it was absolutely necessary that a bond should be given before an appeal could "1.7 ,,/*•] , • • /v. be taken, and her rauure to give one is a sufficient justification for the ruling of the court in dismissing the appeal. Its judgment will be affirmed.

All the Justices concurring.