Estate of Dildine v. DeHart

This is an appeal from a judgment of the Circuit Court of Clinton County voiding and nullifying an order of the probate court of said county for the sale of real estate to pay debts. The case was transferred from the Kansas City Court of Appeals, where it was sent on appeal. That court was without jurisdiction, as the action involved title to real estate, which was directly affected by the judgment. [Sec. 12, Art. 6, Mo. Constitution; Edwards v. Railroad, 148 Mo. 513, 50 S.W. 89; Heman v. Wade,141 Mo. 598, 43 S.W. 162; Whitecotton v. Wilson, 197 S.W. 168; Davis v. Watson, 158 Mo. 192, 59 S.W. 65; Railroad v. Schweitzer,246 Mo. 122; Jones v. Hogan, 211 Mo. 45.] John Dildine died testate in Clinton County on October 26, 1918, and on the 31st of the same month his will was admitted to probate. The estate consisted of about twenty-five dollars in personal property, and three lots in Cameron, valued at sixty-one hundred dollars. Reinette B. Henderson, a daughter and one of the executors, was bequeathed twelve hundred dollars, and the residuary clause of the will devised the three lots in controversy to James C. Dildine, a son, Dora A. Pickerel and Bertha M. DeHart, daughters. One of the lots so devised was encumbered for three hundred dollars. On May 16, 1919, claims amounting to $321.34 were allowed against the estate, and on the same day the executors filed their petition for an order to sell the real estate on the ground of deficiency in the personal estate. Pursuant thereto the judge of the probate court immediately and on the same day made an order of publication under the statute, followed on June 28th with citation to Bertha M. DeHart, residing in Clinton County, the only interested devisee (other than the executors) so residing in Clinton County. Bertha M. DeHart resisted the proceeding and by answer, among other things, said that a suit in partition of said real estate had been filed in the circuit court of *Page 397 said county on April 3, 1919, wherein Bertha M. DeHart and Dora M. Pickerel were plaintiffs, and James C. Dildine and Reinette B. Henderson, executors, and N.S. Goodrich, trustee, and Farmers Bank of Cameron were defendants. She set up in said answer the petition in the partition suit and other proceedings incident thereto, including service of summons on all defendants on April 21, 1919. She challenged the jurisdiction of the probate court to proceed to order the sale of said real estate, on the grounds that the circuit court had drawn to itself "complete and exclusive jurisdiction" at the filing of the partition suit, and that such suit was pending and undetermined. The probate court made an order of sale in accordance with the petition of the executors, and from this order the said Bertha M. DeHart appealed to the circuit court. Whereupon in a trial denovo the circuit court adjudged that the probate court was without jurisdiction to entertain the petition for sale of real estate to pay debts, because of the pendency of a suit in partition in said court, wherein all parties in interest were either plaintiffs or defendants, and "that after this court was possessed of the jurisdiction of the real estate, by reason of said action in partition, thereafter the executors applied . . . to sell the real estate to pay debts, and the court finds that said probate court, at the time of making the order to sell the real estate of the decedent to pay debts, was without jurisdiction to make such an order." I. Undeniably probate courts have the jurisdiction to order the sale or leasing of real estate for the payment of debts. [Sec. 34, Art. 6, Mo. Constitution; Secs. 129 and 141, R.S. 1919.] This can only be done, however, when the court isProbate Court: satisfied of its necessity, and until the orderJurisdiction. of the court either to sell or lease, the administrator or executor has no rights over the real estate (Grant v. Hathaway, 215 Mo. 141; Anderson v. Taylor, 227 S.W. *Page 398 84), as title to the real estate upon the death of the owner passes to and vests directly in the heirs or devisees. [Seilert v. McAnally, 223 Mo. 505.] II. That circuit courts have jurisdiction to order the partition or sale of real estate when owned or held in joint tenancy, tenancy in common, or coparcenary, etc., is also beyond question. [Sec. 1995, R.S. 1919.] And, moreover,Circuit Court: partition may be had in lands before the finalPartition. settlement of the estate, to whose demands the lands partitioned may be subject. [Chrisman v. Divinia, 141 Mo. 122, 41 S.W. 920; Tanner v. Tanner,199 Mo. App. 145, 203 S.W. 239; Sec. 2006, R.S. 1919.] III. In the case at bar the probate court did not attempt to take jurisdiction over the land in suit until May 16, 1919. Suit in partition was filed April 3, 1919. In that suit the circuit court took complete and exclusive jurisdiction over said real estate. It could proceed to the sale ofPending Partition: said property and the distribution of theSale by Probate Court. proceeds, subject to Section 2006, Revised Statutes 1919. This section forbids final distribution until all demands in the administration of the estate, to which said lands might be subjected, have been settled. When it appeared to the judge of the probate court that a suit in partition of said land had been filed, he should have dismissed the petition of the executors for an order for a sale of said property. The circuit court, superior to his court, had already acquired jurisdiction of the res and in the proceeding had the statutory power to hold said res or its proceeds incustodia legis until all demands allowed in the probate court had been settled. The probate court could not deprive the heirs of their valuable privilege to have said property partitioned in the circuit court. [State ex rel. v. Holtcamp, 245 Mo. 655.] *Page 399 The circuit court took due cognizance of the unsettled estate of John Dildine, and suspended judgment in the partition suit until all demands against said estate had been finally determined. This was proper. The judgment of the trial court was correct and should be affirmed. It is so ordered. Railey, C., concurs; White C., not sitting.