First Baptist Church v. Robberson

Hough, J., Dissenting. — I dissent from the opinion of the majority on the question of jurisdiction. I do not presume it will be contended by any one that the probate court is a court of chancery, or a court exercising general equity powers, and in that sense the decision in Presbyterian Church v. McElhinney, 61 Mo. 540, is correct; but there can be no question that, since the year 1825, probate courts in this State have been invested with, and have lawfully exercised in the settlement of estates, powers and jurisdiction — 340 — formerly exercised only by courts of chancery. The simple reading of the statute quoted.in the opinion of the majority, together with the administration act, is sufficient to show this. But it has also been expressly and repeatedly so decided by this court. In Jackson v. Jackson, 4 Mo. 210, a bill was filed on the chancery side of the circuit court to establish and carry into effect the provisions of a lost will. This court held that, under the act of 1825, (which is substantially the same as that now under consideration,) the probate court had exclusive original jurisdiction of the matters set forth in the bill, and that the court of chancery had no concurrent jurisdiction with the probate court. Judge Tompkins, who delivered the opinion of the court, said : “The probate court (now county court) can in this case grant as much relief as a court of chancery.” In Miller v. Woodward, 8 Mo. 169, to which reference will be made hereafter, and in which the whole field of probate jurisdiction was critically examined, Judge Napton conclusively shows that the entire jurisdiction formerly exercised by the ecclesiastical and chancery courts, in the settlement of estates, was vested by statute in the probate courts. In Miller v. Iron County, 29 Mo. 122, Judge Napton, in commenting upon the nature and extent of the probate jurisdiction conferred upon the county court, said: “ In this field of jurisdiction, the court is a branch of the State judiciary, exercising, in fact, a jurisdiction originally found in the chancery courts and ecclesiastical courts of England, and conferred here by statute upon these county tribunals.” Titterington v. Hooker, 58 Mo. 593, announces precisely the same doctrine advanced in Miller v. Woodward, supra, though the latter case was not cited in argument nor referred to in the opinion. In Pearce v. Calhoun, 59 Mo. 271, the case of Titterington v. Hooker was affirmed, and Judge Wagner, who delivered the opinion of the court, used the following language: “ Our probate courts were established, with extensive powers and jurisdiction, for the purpose of doing everything — 341 — necessary to the full and final administration of an estate. Both, real and personal property are under their control for the payment of debts. They possess about the same powers formerly exercised in England by the ecclesiastical and chancery courts.” In Ensworth v. Curd, 68 Mo. 282, it was expressly said that, in the settlement of a copartnership dissolved by death, the probate court exercised the powers of a court of chancery. So that the question of jurisdiction before us is not to be determined by a reference to Redfield on Wills, or Comyn’s Digest, or Story’s Equity, or the decisions of other states, but to the statutes of this state conferring jurisdiction upon the probate courts and the decisions of this court made in reference thereto. Section 544 of Story’s Equity, cited in the opinion of the majority, to show that an executor or administrator may go into a court of equity for the purpose of adjusting the claims of creditors, and having a final decree settling the order and payment of the assets, when he finds the affairs of his testator or intestate so much involved that he cannot safely administer the estate, does not state the law as it exists in this state. Such was the law in a system of jurisprudence under which courts of chancery could take the administration of estates out of the spiritual courts and proceed to final settlement and distribution. No one, I imagine, will contend that the circuit court, which with us is the only court of general equity jurisdiction, has a right, on any.pretext, or in any contingency, to assume original jurisdiction of the administration of estates. The decisions in Massachusetts on this subject are not applicable here. In that state, equity jurisdiction in all eases of trust arising in the settlement of estates is expressly conferred by statute on the supreme court. Hooper v. Hooper, 9 Cush. 127, R. S., chap. 81, § 8; Treadwell v. Cordis, 5 Gray, 341, R. S. 1836, p. 500, § 8. For a similar reason, the decisions in New York are not authority here. In Seymour v. Seymour, 4 John. Chy. 409, it was — 342 — held that courts of equity have concurrent jurisdiction with courts of probate in the settlement of estates. In this state, whatever jurisdiction is conferred upon probate courts by the act in question, is exclusive. Such is the language of the statute. And, as the probate court has jurisdiction to hear and determine “ all disputes and controversies whatsoever respecting wills, * * or respecting the duties of executors,” such jurisdiction must necessarily be exclusive while the administration is pending in such court. This jurisdiction is conferred upon the probate courts solely for the purpose of administering estates — that is, for their settlement and distribution. And, when the administration is ended, and the property of the estate has been distributed to those who are entitled to it, the jurisdiction of the probate court over the parties interested, as well as the property they have received, alike ceases. Thereafter the rights of heirs, devisees and grantees, and the duties of trustees who have received property through the administration proceedings, are subject to adjudication in the courts of general jurisdiction. And it may well be that when, pending the administration, trustees have received property clothed with a trust, controversies between them and their cestuis que trustent would be properly heard and determined in the circuit courts; for, as to such property, the administration would in reality be ended; as much so as if the estate had been finally settled, there being nothing further for the probate court to do in reference thereto. Such I understand to bo the case of Collier’s Will, 40 Mo. 287. In the case of Brant’s Will, 40 Mo. 266, which was a proceeding by a devisee against the executor, involving the construction of the will, this court said: “There was some doubt as to whether the court had jurisdiction over the matter before the close of the administration, and it is believed that it was for that reason that the petition was dismissed ; but as the same subject is again pending and the parties are desirous of having the will construed, we will — 343 — waive that point and examine the questions arising in the case.” In the case of Jamison, Exr., v. Hay, 46 Mo. 546, no question was made as to the jurisdiction of the court, and, as the record shows, all of the forty defendants, except one, appeared and submitted the construction of the will to the court. As Judge Wagner, who delivered the opinion in the case of Brant's Will, also delivered the opinion in this ease, he doubtless did so for the same reason given in Brant's Will, waiving the question of jurisdiction. As the opinion of the majority is chiefly based upon the decision in Miller v. Woodward, supra, and as that decision is, as I conceive, misapprehended and misconstrued, it may be well to state what that case was and what was decided. Miller, the complainant, was surety for one Manzey, on a collector’s bond. Manzey died intestate and insolvent; the defendants, Woodward and Thornton, were his administrators. The state sued Miller and recovered judgment against him as.surety for $264, which judgment Miller paid, his co-sureties being insolvent. Distribution of the assets among the creditors had been ordered by the probate court. Miller filed a bill in the circuit court, stating the foregoing facts and praying that the administrators be enjoined from making distribution, and that they be required to pay to him the amount paid by him to the state. A general demurrer to the bill was sustained by the circuit court. There was no controversy as to the jurisdiction of the circuit court over Miller’s demand against the estate of Manzey, because it exceeded the sum of $100, and the statute expressly provided that the circuit court should have concurrent jurisdiction with the county court of all suits against executors and administrators when the demand exceeded $100. The question on which Judges Napton and Scott divided was, whether, when Miller went into the circuit court to establish his. demand, he should, in the first instance, under the practice then prevailing, have taken the chancery side, or the law side of that court. • Judge Scott — 344 — was of opinion that he should first have established his claim at law. The opinion of the court, as delivered by Judge Nap-ton, was, that Miller’s demand was an equitable one, and if relief were sought outside of the county court it could only be had in a court of equity, and that Miller properly sought the chancery side of the circuit court. But both judges were of opinion that the demand could have been established in the county court. Of course there could have been no difference of opinion on that point, for by the express language of the statute, the demand was within the concurrent jurisdiction of the county court and the circuit court. Judge Napton said : “ The amount involved places the case within the concurrent jurisdiction of the county and circuit courts, and the demand being purely equitable, it falls to the chancery side of the circuit court.” Judge Scott said : “ The demand exceeded $100? the county court and circuit court had concurrent jurisdiction over it, and the party might have established it in either court. It is, however, a legal demand, and if he goes into the circuit court, he must take the common law side of that court.” This case, it will be seen, furnishes no support whatever to the opinion of my associates ; on the -contrary, it is directly in the face of that opinion. Instead of being authority for the statement that, because Miller’s demand was “purely equitable,” it could only be established in a court of equity, it is an express authority that it might have been established in the county court as well as on the chancery side of the circuit court, and it necessarily follows that but for the clause of the statute giving the circuit court concurrent jurisdiction with the county court, the county court would have had exclusive jurisdiction of the demand. If Miller’s demand had been less than $100, although it was “ purely equitable,” the county court would have had exclusive jurisdiction. But this is not all that was decided by that case. In consequence of an erroneous decision as to the concurrent ju — 345 — risdiction of the probate and circuit courts made in Erwin v. Henry, 5 Mo. 469, Judge Napton, in his opinion, enters upon a most elaborate review of the whole question, and after stating that the powers exercised by the chancery courts in England and those of the United States where the English system prevailed, grew out of the same jurisdiction of the ecclesiastical courts, makes the following observation: “It is thus seen, that the principal reason given by the equity courts of England for their assumption of such extensive jurisdiction, both concurrent and exclusive, over executors and administrators, and the settlement of estates, has been for the want of an efficient and adequate remedy at law. These defects, it is also seen, in the power of the English ecclesiastical courts do not, to any extent, exist in the organization or powers of our courts of probate. It is true, that where courts of equity have once acquired jurisdiction, in consequence of the want of remedy elsewhere, the subsequent provision of a remedy by the legislative department has been held not to divest chan'cery of its jurisdiction, unless exclusive words are used in the act; it is better to increase the jurisdiction of courts than to limit them; for thereby a choice of tribunals is left to suitors. But this principle has no application in this case; for the legislature have used, as we have seen, exclusive words and the county courts and courts of chancery cannot be concurrent, except so far as they are made concurrent by the 7th clause of the 15th section. By that section it has been seen that the circuit courts have concurrent jurisdiction with the county courts in all suits against executors and administrators, where the demand exceeds $100.” In Overton v. McFarland, 15 Mo. 312, Judge Gamble in discussing this subject used the following language: “ In Miller v. Woodward and Thornton, 8 Mo. 169, so much of the decision in Erwin v. Henry, as maintained the jurisdiction of a court of equity in the matters specified in the clauses of the section giving jurisdiction to the county — 346 — courts was overruled. It was there held that all the clauses of the section, except the 7th, (which relates to the allowance of demands against the estate,) were exclusive, and that the general control ovér executors, administrators, guardians, &c., conferred upon the circuit court by the 6th clause of the 8th section of the act, was not to be understood as interfering with the grant of exclusive original jurisdiction made to the county courts. The case of Clark and wife v. Henry, Admr., 9 Mo. 340, which is the same case in which the first decision was made, asserts the jurisdiction of a court of equity to determine a case of alleged waste and mismanagement'of an estate after it has been finally settled in the county court, and when of course the jurisdiction of that court has been exhausted. * * There is nothing in any decision that has been made, that will warrant the interference of a court of equity in a case like the present. Here the administration, (as must be intended from the petition,) is still in progress before the county court, and that court is competent to hear and determine the controversy respecting the duty of the administrator in relation to the property mentioned in the petition, and has exclusive original jurisdiction of such question.” " Pending administration in the probate court, no court has authority to advise it how to proceed, or'to interfere with its jurisdiction. Under the statute cited, it has exclusive jurisdiction to construe wills for the purposes of the administration, and to direct executors as to their duties; and, if, it errs, an appeal lies to the circuit court. The power to construe wills must, in the very nature of things, be exercised by the probate court in the settlement and distribution of the estate of every testator. Numerous cases in which this power has been exercised appear in our reports. In the case of Hamilton, Exr. of Taylor, v. Lewis, 13 Mo. 184, the construction of a will was originally sought in the county court. In Dyer v. Carr’s Exr., 18 Mo. 246, the opinion of the probate court was formally taken as to — 347 — the true construction of a will, but, as no order was made by that court to carry its construction into effect, this court said no appeal would lie from its decision. In Overton v. Davy’s Exr., 20 Mo. 273, the probate court construed the will of Dávy and ordered distribution accordingly, and that judgment was affirmed. The opening paragraph of the opinion of this court is as follows: “ The proper construction of the will of Cornelius Davy is the only point in this case for the consideration of this court.” In Rose v. McHose’s Exrs., 26 Mo. 590, a construction of the will and an order of distribution based thereon were asked of the probate court, and its judgment was affirmed. In Bryant v. Christian, 58 Mo. 100, construction of will and order of distribution were asked of the probate court, and its judgment was affirmed. In Allison’s Exr. v. Chaney, 63 Mo. 279, the will was construed and an order of distribution made accordingly, and its judgment was affirmed. Section 49 of the chapter on Wills is as follows : “ All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of'the testator, in all matters brought before them.” What court is so directly concerned in the execution of last wills as the probate court ? And yet it is said that, although the probate court is to have due regard to the directions of the will, and although it has exclusive original jurisdiction,' not only of the probate of wills, but of all disputes and controversies whatsoever respecting wills and the duties of executors, still it has no authority to construe a will. It is unnecessary to make any observations on the case of Schulter’s Admr. v. Bockwinkle’s Admr., 19 Mo. 647. It follows the statute, and furnishes no argument to either side on the question now before the court. The remark of Judge Wagner in Mead v. Jennings, 46 Mo. 91, that “if the executors should neglect or fail to act as required by 'the testatrix, the plaintiffs have a complete remedy in equity by filing a bill to compel them to execute the trust,” — 348 — referred to duties imposed upon the executors as trustees, after the final settlement and distribution of the estate, as an examination of the will in that case will show. That case, therefore, has no bearing on this. Judge Wagner never intended to assert that the probate court has no power to compel the executor to make distribution according to the provisions of the will. In the case of Coil v. Pitman’s Admr., 46 Mo. 51, the duty of the administrator to make a conveyance arose out of his contract with the plaintiff:', and not out of the will, and the circuit court was, therefore, the proper forum in which to enforce that contract ; as much so as if the contract had been made by a devisee under the will. I am of the opinion that the probate court of Greene county had exclusive original jurisdiction to determine the validity of the devises in the will of Mrs. Bailey, and to direct the executor as to his duties under said will. Kenrick v. Cole, 46 Mo. 85. I am further of the opinion that neither the- circuit court nor this court has any semblance of authority in a proceeding like the present to pass upon the validity of a will which has been proven in the probate court. If parties wish to contest the validity of a will which has been proven in common form, or pray to have a will proved which has been rejected, they must proceed under the 29th section of the chapter on Wills. In re Duty’s Estate, 27 Mo. 43. The judgment of the probate court is conclusive, and it can only be annulled in a direct proceeding instituted for that purpose under the statute. Dilworth v. Rice 48 Mo. 124; Banks v. Banks, 65 Mo. 432. The judgment of the circuit court sustaining the demurrer and dismissing the bill should, in my opinion, be affirmed.