Lasswell v. McFarland

^* Corpus Juris-Cyc. References: Executors and Administrators, 23 C.J., p. 1078, n. 53; p. 1079, n. 61 New. This action originated in the probate court of Dunklin county by plaintiff, W.D. Lasswell, filing his affidavit under section 26, Revised Statutes of Missouri 1919, requesting the court to require Othar McFarland, administrator of the estate of Ora A. McFarland, deceased, which estate was in the process of administration in said court, to file a new statutory bond as such administrator. Thereupon McFarland, the said administrator, filed a motion to dismiss said motion for new bond on the ground that the probate court was without jurisdiction to entertain said motion until it was first shown that the said Lasswell had a substantial interest in said estate. The motion to dismiss was overruled and the motion for new bond sustained and an order entered directing the administrator to file a new bond.

On a trial of the case de novo on appeal to the circuit court, the court entered the following decree:

"Now on this 18th day of June, 1925, and during the regular May term, 1925, of the Cape Girardeau Court of Common Pleas, Cape Girardeau, Missouri, this cause coming up for decision, both the plaintiff and defendant being represented by counsel and it being admitted that the personal property of this estate is of the value of $117,602.27 and appraised at $80,000, this cause having been heretofore submitted to the court and the court having heard the evidence adduced by both sides and the argument of the counsel and having consideration of its judgment therein, doth find as follows, to-wit:

"I. That W.D. Lasswell, plaintiff herein had such an interest as would warrant him in asking the court to require statutory bond of Othar L. McFarland, Administrator.

"2. That even though W.D. Lasswell had no such interest, the probate court by its order herein, was simply performing the duty which the statutes impose upon it as sections 17 and 16 of the Revised Statutes of Missouri 1919, are mandatory.

"3. That if it were proper for this court to do so and if said cause be tried de novo, the bond should be fixed at twice the amount of the personal property, as required by the above statutes.

"It is therefore ordered, decreed and adjudged that the order of the probate court herein is affirmed, and that the defendant's motion to dismiss the application and petition of W.D. Lasswell to increase the bond of Othar L. McFarland, administrator of the estate of Ora A. McFarland, deceased, is overruled."

From this decree McFarland, administrator, in due course appeals.

For the purpose of this appeal we need note but one of the assignments of error urged here by appellant, namely, that Lasswell, plaintiff below, is, upon the admitted facts in the case, neither, "an heir, legatee, creditor or other person interested in the estate," of Ora McFarland, deceased, as required by section 26, Revised Statutes of Missouri 1919, and therefore neither the probate court nor the circuit court on appeal obtained any jurisdiction under Lasswell's affidavit to give a new bond. This point is well taken.

It is admitted that Lasswell's sole claim to any interest in the estate of Ora McFarland, deceased, is based upon Lasswell's alleged adoption of the said Ora McFarland, on the theory that as the "adopted father" of said Ora McFarland, he became one of his heirs.

It is apparent that any alleged adoption that plaintiff below could rely upon would have to have taken place under our statute of adoption as it stood prior to the present statute, which was enacted in 1917. Said prior statute stood unchanged for ever a period of fifty years, and its language was identical as it appears in section 1673, Revised Statutes of Missouri 1909. Our Supreme Court, in Reinders v. Koppelmann, 68 Mo. 482, in an exhaustive opinion directly ruled that under that statute of adoption, on the death of an adopted child, his estate goes to his relations by blood and not to those by adoption, and this ruling of the Supreme Court has never been questioned. Under this authority we must hold that the plaintiff, under the facts in the case before us, has no such interest in the estate of Ora McFarland even though he were in fact the adopting father under our statute of adoption as it stood prior to 1917, as is required to give the probate court jurisdiction of a motion filed under section 26, Revised Statutes of Missouri 1919.

In this connection we note that the record discloses that Lasswell, plaintiff below, had some time ago filed a suit in the circuit court of Dunklin county against the administrator herein alleging that he, Lasswell, was the adopter of the deceased, Ora McFarland, "by oral contract or by acts and conduct," which he alleged under the laws of the State of Missouri constituted an adoption. It appears that said suit was decided adversely to Lasswell, the court ruling that there had been no adoption. An appeal from this adverse decree is still pending in our Supreme Court.

But respondent urges that even if the trial court erred in holding that Lasswell had such an interest as would warrant him, under section 26, in asking the court to require a new bond, yet the court could nevertheless, of its own motion, enter an order increasing the administrator's bond. This point is without merit.

This proceeding is specifically under section 26, Revised Statutes of Missouri 1919, which provides the manner in which heirs, creditors and other persons interested in an estate may compel the administrator to give a new bond and requires that any motion filed thereunder shall be by way of an affidavit, and requires that the administrator be given at least ten days' notice of the complaint, but should the court desire to take action to increase the bond of the administrator of this estate, under the facts in the instant case, and in light of the provisions of section 17 of our statutes, which requires that the amount of the bond to be given by an executor or administrator shall be not less than double the amount of the personal estate, the proceeding must be under section 31, which provides that, "it shall be the duty of the court, whenever it shall appear necessary and proper, to order an executor or administrator to give other and further security, first giving such executor or administrator at least ten days' notice of such intended order; and if such executor or administrator shall fail to give such further security within ten days after the making of such order, it shall be the duty of the court to revoke his letters, and his authority from that time shall cease."

It follows from what we have said above that the court erred in holding that Lasswell, plaintiff below, had such an interest in the estate of Ora McFarland, deceased, as would, under section 26 of the statutes, authorize him to file his affidavit asking that the administrator be required to give a new bond, and therefore that the court was without jurisdiction thereunder to enter an order requiring the said administrator to give a new bond in this proceeding.

The judgment is accordingly reversed and the cause remanded with direction to the trial court to enter a decree sustaining the administrator's motion to dismiss Lasswell's motion to require the administrator to give a new bond. Daues, P.J., andNipper, J., concur.