author: WILLIAMS, J.

text:
    THE STATE ex rel. LILLIAN STETINA v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    December 31, 1920.
    1. CONFLICT OF OPINIONS: Suit Against Administrator for Money Entrusted to Decedent: Power of Probate Court. Plaintiff turned oyer her wages to ber grandmother, who was to provide her with food, clothing and shelter and account to her for the balance. Upon her grandmother’s death she sued her administrator in the probate court for said balance, upon a single account stated, in which she made claim for her earnings turned over to her grandmother not only during the years of her minority but for the two years after reaching her majority. The Court of Appeals held that the claim for money turned over by plaintiff during her minority was one growing out of the relation of guardian and ward and was maintainable in the probate court, but the turning over o£ lier wages earned after she reached her majority created a trust relation between her and her grandmother, which was a cause of action cognizable only in equity, of which the probate court had no jurisdiction, and the two causes being commingled in the one account, the one verdict for her for both and the one judgment of the circuit court, which took only such jurisdiction as the probate court had, were erroneous. Held, that the ruling of the Court of Appeals was in conflict with Hoffmann v. Hoffman’s Executor, 126 Mo. 486, and its record is therefore quashed upon certiorari.

    2. -: -: -: Matters of Equitable Cognizance. The Constitution gives probate courts jurisdiction “over all matters pertaining to probate business” and the statute provides that “the probate court shall have jurisdiction to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of the testator , or intestate;” and it was ruled in Hoffmann v. Hoffmann’s Executor, 126 Mo. 486, that these provisions are broad enough to include all moneys demanded from an administrator of whatever nature, whether legal or equitable, made in the probate court; and a holding in this case by the Court of Appeals that a demand for money against an administrator, adjudged to be equitable in its nature, could not be maintained in the probate court, was therefore erroneous.

      Certiorari.

    EeCOKD QUASHED.

      Earl M. Pirhey for relator.
    (1) The probate court has jurisdiction to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of the testator - or intestate and of all offsets and other defenses allowed by law. E. S. 1909, sec. 198; Art. VI, secs. 34 and 35, Constitution of Missouri; Secs. 4055 and 4056, E. S. 1909; Meeker v. Straat, 38 Mo. App. 239; Schmieding v. Doellner, 14 Mo. App. 229; Coal Co. v. Estate of Charles Slevin, 56 Mo App. 107; Hoff-mann v. Hoffman’s Exr., 126 Mo. 486; Maguinn v. Green, 67 Mo. App. 616; Grimes v. Eeynolds, 94 Mo. App. 576; Johnson v. Smith’s Admr., 27 Md. 592; Stanton y. Johnson’s Estate, 177 Mo. App. 55; State y. Fulton, 184 S. W. 938; White y. Blankenbeckler, 115 Mo. 7221; Grimes v. Reynolds, 184 Mo. 689; Deer v. Deer’s Estate, 180 S. W. 573; Hess v. Sandner, 198 S. W. 1125, 189 Mo. App. 636; O’Neal v. Patterson, 206 S. W. 596; Green v. Strother, 212 S. W. 400; Jeffries v. Ferguson, 87 Mo. 244. (2) The probate court should resort to both common law and equitable rules in the disposition of matters before it. Jarbo v. Jarbo, 227 Mo. 59; Meeker v. Straat, Admr., 38 Mo. App.-239; Schmieding v. Doellner, 13 Mo. App. 229; Coal Co. v. Estate of Charles Slevin, 56 Mo. App. 107; Maginn v. Green, 67 Mo. App. 616; Grimes v. Reynolds, 94 Mo. App. 575; Coombs, Curator, v. Coombs, 86 Mo. 176; Stanton v. Johnson’s Estate, 177 Mo. App. 55; White v. Blankenbeckler, 115 Mo. App. 722; Green v. Strother, 212 S. W. 400; Jeffries v. Ferguson, 87 Mo. 244; Lietman v. Lietman, 149 Mo. 112.

      Pierre A. Vogel for respondents.
    (1) The probate court has no equitable jurisdiction, but may invoke equitable principles in determining issues within its jurisdiction. State ex rel. Fleming v. Shackelford, 172 S. W. 347, 263 Mo. 52. It will be presumed that the lower court followed the law and decisions applicable and in point unless the contrary be shown. (2) The term g^asi-guardian, or guardian de son tort, has been applied to persons who, without legal appointment or qualification, assume -the functions of a guardian by exercising control over the person, or estate, or both, of a minor. Zeidman v. Molaskev, 118 Mo. App. 114. While an action at law for money had and received was the proper remedy by which the ward could recover the earnings accumulated under the guardianship de son tort, against the guardian as trustee of a resulting trust, an action at law would not lie for the earnings accumulated after the majority of the ward, under an agreement to account for same by the guardian, he being as to such earnings the trustee of an express trust and there having been no accounting or settlement. Zeidman v. Mol-askey, 118 Mo. App. 107. (3) Questions of jurisdiction may be raised at any stage of a proceeding and in any court, and are considered by the court sua sponte. Tam-blyn v. Load & Zinc Co., 143 S. W. 1095, 161 Mo. App. 296.
   WILLIAMS, J.

Relator by writ of certiorari seeks to quash, the judgment of the St. Louis Court of Appeals-in the case of Lillian Stetina, Respondent, v. Charles Bergstein, Administrator of Estate of Kathrine Zacek, deceased, Appellant, on the ground that said opinion conflicts with prior controlling decisions of this court. The following facts are stated by the Court of Appeals in its opinion:

“Plaintiff had judgment in the circuit court for $700, based an the following statement of account originally filed as a claim in the probate court, where she likewise had judgment:
“St. Louis, Mo., May 23, 1916.
“To Charles Bergstein, Administrator of the Estate of Kathrine Zacek, deceased,
“To Lillian Stetina, formerly Lillian Rezney, Dr.
“To money loaned and advanced Kathrine Zacek under a continuous open account in various sums and amounts at various times between November 1, 1909, and July
6. 1915 . '....$1,900.00
Credits.
“By money repaid by said Kathrine Zacek in various sums and amounts at various times between November 1, 1909, and July 6, 1915 . 700.00
“Balance due .$1,200.00
“Plaintiff is a granddaughter of Kathrine Zacek and had lived with her since 1901, when she was six years of age. When of the age of fourteen years, in 1909, plaintiff started to work, and her evidence tends to show that she turned her earnings as received over to her grandmother, who, after providing the t plaintiff with food, clothing and shelter, was to account to plaintiff for the balance in her hands. The arrangement was not definitely established by the evidence, hnt it may he inferred from the declarations of the deceased Kathrine Zacek that it was her intention to keep said funds for the benefit of the plaintiff after providing for her hoard and clothing. This arrangement continued for about two years after the plaintiff reached the age of maturity, at which time Kathrine Zacek died.”

The Court of Appeals held the relator had an action at law and was entitled to recover therefor originally in the probate court for all moneys due her from her grandmother up until the maturity of the relator, and further held that the relator’s cause of action to recover the moneys due her from her grandmother for the two-year period after relator attained her majority was one in equity; that her said grandmother,, during the last two years, became the trustee of an express trust and that the amount due thereunder was indefinite, no settlement being had, and that therefore the probate court was without jurisdiction to determine that portion of the claim, and for that reason the circuit court acquired no jurisdiction over that portion of the claim. In passing upon this part of the case the Court of Appeals said:

“Her cause of action, based on her earnings turned over to her grandmother subsequent to her majority and on account of which her grandmother was the trustee of an unsettled and unascertained trust cognizable only in equity, was commingled in one statement of account filed in the probate court with her claim against her grandmother growing out of the trust relation of guardian and ward.
“The probate court had no jurisdiction of plaintiff’s said cause of action cognizable only in equity, as that court has no equitable jurisdiction. On appeal to the circuit court, that court was likewise without power to entertain the equitable cause of action, as on appeal from the probate court the circuit court has only such jurisdiction as may he properly exercised by the probate court. . . .
“In instructing the jury on behalf of. plaintiff the court permitted the jury to take into account the money or earnings entrusted to Kathrine Zacek by plaintiff during the entire period from November 1, 1909, to July 12, 1915, -which covered both causes of action herein referred to, and which included that cause of action arising-out of the trust relation, the settlement of which rested solely in equity for an accounting.
“The giving of this instruction in this proceeding was error and is one of the complaints made against the judgment by defendant. The jury should have been told to disregard any earnings or funds entrusted to Mrs. Zacek subsequently to the time plaintiff reached her majority.
“For the error noted the judgment should he reversed and the cause remanded. ’ ’

Relator contends that above holding of the Court of Appeals conflicts with the prior control-^ng decision of this court in the case of Hoffmann v. Hoffmann’s Executor, 126 Mo. 486, l. c. 493.

It will he noted that the relator’s cause of action filed in the probate court was one based upon a money demand against the estate.

This court in the case above cited in passing upon a very analogous situation and one involving the same principle as that involved in the decision now before us used the following language:

“It is insisted by counsel for defendant that this proceeding involves the enforcement of a contract between husband and wife, and also the accounting of a trustee as to funds held in trust, and they are, therefore, of purely equitable cognizance and must be determined by a court having equity jurisdiction, and are not, therefore, within the jurisdiction of the probate court.
‘ ‘ The Constitution of the State gives to the probate courts jurisdiction ‘over all matters pertaining to probate business. ’ As a matter pertaining to probate business the statute declares that ‘the probate court shall have jurisdiction to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of the testator or intestate.’ This provision seems broad enough to include all money demands of whatever nature, whether legal or equitable, and so it was held in Hammons v. Renfrow, 84 Mo. 341.”

It is at once apparent that the decision of the Court of Appeals is in direct conflict with the above decision in the Ploffniann case.

It follows therefore that the record of the Court of Appeals should be quashed. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAYES, J.

license: Public Domain

text:
    In Re CARRIE MILLER PEPER, Executrix of Estate of CHARLES G. PEPER, Appellant, v. CHRISTIAN P. BELL, Administrator De Bonis Non of Estate of FREDERICK C. PEPER.
    In Banc,
    December 31, 1920.
    1. ADMINISTRATION: Commissions: Refusal to Accept Distribution, A distributee cannot defeat the administrator’s commission on the amount of money ordered by the court before final settlement to be 'distributed to her, by an arbitrary refusal to accept the money or other personal property so ordered to be distributed. Where the probate court, before -final settlement, but at the third annual settlement and after all debts had been paid, made an order for partial distribution and allowed the administrator his statutory .commission on the fund so ordered to be distributed, and one distributee refused to accept her distributive share, whereupon, in pursuance to instructions of the court, her share of the stocks and monpy was deposited in a safety-deposit box for safe-keeping under the joint custody and control of the administrator and his surety, and remained in said box until after the administrator’s death, when it was accepted and turned over to the distributee, she “cannot have the allowance surcharged and the amount of commission upon her share allowed against his estate in favor of the administrator cle bonis non, on the theory that she never actually received her distributive share from the administrator during his lifetime.

      2..-: Order of Distribution: Final As to Commissions. An order - of partial distribution of assets, made before final settlement, carries with it the further incidental and statutory authority to allow to the adminigtrator distributing the fund the commissions thereon allowed by law, and, if unappealed from,’ becomes a final judgment, not only as to the order to make distribution, but also as to the commissions allowed the administrator; and a contrary ruling by the Court of Appeals was in conflict with Pound v. Cas-sity, 166 Mo. 1. c. 427.
    3. -: -: Acceptance of Commission: Estoppel. Where the probate court, in its order for a partial distribution of assets, fixed the amount of commissions to be allowed thereon to the administrator and he accepted it, his estate should not be charged with such commissions so received in advance of final settlement; and a contrary ruling by the • Court of Appeals contravened the spirit and legal principles of In re Bryan’s Estate, 190 S. W. 1. c. 585.

      Certiorari.

    Recokd quashed.

      J. D. Johnson for plaintiff.
    (1) The order of distribution made by the probate court in case of Peper v. Bell became final and binding-on the distributee, Caroline J. Peper, after the lapse of the term of the court at which the order was made. Sec. 246, R. S. 1909; Pound v. Cassity, 166 Mo. 419; Freeland v. Wilson, 18 Mo. 380 ; Kiernan y. Robertson, 116 Mo. App. 61. (2) The property constituting the said share of Caroline J. Peper in the Frederick G; Peper estate under said order of distribution was not subject to further distribution after the same was separated from the remaining property of the estate and placed in the custody of the administrator and the surety on his bond. Sec. 246, R. S. 1909; State to use v. Thornton, 56' Mo. 325; Richardson v. Cole, 160 Mo. 372; Pound v. Cassity, 166 Mo. 419; Clark v. Sinks, 144 Mo. 453; Yastine v. Di-nans, 42 Mo. 269; State ex rel. v. Maston’, 44 Mo. 308. (3) The decision of the St. Louis Court of Appeals in said case of Peper y. Bell conflicts with last controlling decisions of this court. See: Statutes and decisions cited under Point 2. Said decision by the St. Lonis Court'of Appeals is in conflict with the before-mentioned controlling decisions of this court, notwithstanding the difference existing between the facts in the two sets of cases. State ex rel. v. Reynolds, 265 Mo. 93; State ex rel. v. Rejmolds, 218 S. W. 337; State ex rel. v. Reynolds, 214 S. W. 321; State ex rel. v. Reynolds, 213 S. W. 804; State ex rel. v. Reynolds, 216 S. W. 773; State ex rel. v. Ellison, 256 Mo. 644; State ex rel. v. Ellison, .268 Mo. 238; State ex rel. v. Ellison, 223 S. W. 671.

      George B. Webster for /respondent.
    (1) To justify quashing of the record of a court of appeals it must appear that its opinion, in a case so similar in fact as to require application of the same law, conflicts with a ruling of this court. Its decision of a new case cannot he quashed, even though this court would rule to the contrary as an original proposition. State ex rel. Wabash Ry. v. Ellison, 204 S. W. 396; State ex rel. Arel v. Farrington, 197 S. W. 912; State ex rel. Com. Tr. Co. v. Reynolds, 213 S. W. 806. (2) The decision of the St. Louis Court of Appeals here challenged does not conflict with the rulings of this court in any of the eases cited by the petitioner. None of the latter presented the same issues, nor did any of them disclose facts similar to. the decided case, (a) Pound v. Cassity, 166 Mo. 419, and the cases cited with it, merely hold that an order of distribution is conclusive when it.becomes final, both on heirs and executors and administrators. That rule of law was not disputed in the Court of Appeals, nor did the case there present any facts to which that rule could be applied. Nothing in the opinion of the Court of Appeals conflicts with that doctrine, (b) The order of partial distribution here in question was not. conclusive on the question of the right of the original administrator to commissions on the share of Caroline J. Peper, because it was not within the scope of the inquiry of the probate court on an application for such an order. 2 Black on Judgments (2 Ed.), secs. 611, 617; Ridgley v. Stillwell, 27 Mo. 128; Fish v. Lightner, 44 Mo. 268; Baum-hoff v. Railroad, 205 Mo. 264; Gym. Soc. v. Hagerman, 232 Mo. 693. (c) Such cases as State v. Thornton, 55 Mo. 325, and Richardson v. Cole, 160 Mo. 372, hold only that in certain circumstances administration is unnecessary. No ruling to the contrary was made by the Court of Appeals and no such circumstances are presented in this case.
   GRAYES, J.

Certiorari to the St. Louis Court of Appeals. The opinion of that court says:

“As there is no controversy between counsel as to the facts, we adopt appellant’s statement.
“This cause originated in the probate court of the City of St. Louis, and arose out of that court sustaining exceptions to the settlement made by Carrie Miller Peper, as executrix of Charles G. Peper, deceased, who, at the time of his death, was administrator of the estate of Frederick C. Peper, deceased, with Christian P. Bell, as administrator de bonis non of said last mentioned estate, up to the date of Charles G. Peper’s death. The probate court sustained the exceptions to said settlement, and surcharged the Charles G. Peper estate with the amount of commissions which had been previously allowed to said Charles G. Peper by said St. Louis Probate Court in the settlement he made during his lifetime, as administrator of the said Frederick C. Peper estate.
“Carrie M. Peper, as said executrix of the Charles G. Peper estate, appealed from said judgment of the probate court to the St. Louis Circuit Court. The latter court tried the case de novo, principally on an agreed statement of facts, and rendered a judgment in favor of said Christian P. Bell, as administrator de bonis non of the estate of said Frederick C. Peper, and against Carrie Miller Peper, executrix of the said estate of Charles G. Peper, deceased, and the American Surety Company of New York as surety on the appeal bond, in the sum of $3,481.24, from which judgment Carrie M. Peper, as executrix, appealed in due course to this court.
The particular facts bearing on the question raised for decision by this court are the following:
“The St. Louis Probate Court, at its June term, 1915, which was more than one year after the publication of notice of the grant of letters of administration to said Charles Gr. Peper, and after all claims and demands had been allowed against the said administration estate and paid, made an order therein, directing said administrator to make partial distribution to the heirs of said Frederick C. Peper in the aggregate sum of $241,485.21 of the personal assets belonging to said estate, consisting of shares of stock in certain corporations and cash.
“Under that order the share of Caroline J. Peper, a sister heir-at-law of said Frederick C. Peper, consisted of specified shares of stock aggregating the actual value of $57,298.75 and $53.99 in cash, or a total of $57,352.74.
“In the same order the court expressly allowed to the administrator, and authorized him to pay himself, out of the personal assets remaining in his hands, compensation as administrator, five per cent, commissions on the sum distributed by said order, which allowance totaled the sum of $12,074.26, and included commissions on said distributive share of said Caroline J. Peper.
“All of the heirs excepting said Caroline J. Peper accepted their shares under said order. At the December term, 1915, of said probate court, Charles Gr. Peper filed his third semi-annual settlement as administrator of said Frederick C. Peper estate; which settlement was duly approved by the court, and the administrator took credit therein for the, entire $241,485.21 ordered to be distributed as aforesaid, which included said share of Caroline J. Peper, and also took credit for the $12,074.26 commissions, in accordance with said order of distribution, which left in the administrator’s hands other personal assets of the estate of the total inventoried value of $93,587.03.
“On the same day the third semi-annual settlement was filed and approved by the probate court, said administrator also filed a petition in that court, verified by affidavit, showing to the court that said Caroline J. Peper had been tendered, but had refused to accept and receipt for, her said distributive share of the estate; that the administrator had arranged to place the securities and cash constituting said share ‘in a safe-deposit box, subject to the joint control of the American Surety Company of New York and himself until said Caroline J. Peper accepts and receipts for same, ’ — and praying the court- to reduce his administrator’s bond from $400,000, the amount of the same at that time, to $20,000. Tlie probate court sustained the petition and made an order reducing the bond to said sum of $20',000.
“With respect to the depositing of said securities and cash, the agreed statement of facts in the case contains this admission: '
‘ ‘ ‘ Thereafter, under instructions of the judge of the probate court of the City of St. Louis, the said distributive share of said Caroline J. Peper was set aside and deposited in a place of safe-keeping under the joint custody and control of said Charles G. Peper, as administrator, and the'American Surety Company of New York, assurety on his bond, and so remained until the day of his (Charles G. Peper’s) death.’
“The record does not disclose just when Charles G. Peper died; but his executrix, Carrie M. Peper, filed her settlement as such executrix in the St. Louis Probate Court at the September term, 1916, thereof, with Christian P. Bell as administrator de bonis non of Frederick C. Peper, in which settlement she charged her testator, as administrator of said Frederick C. Peper’s estate, with the said balance of $93,587.03, as shown by his third semi-annual settlement made and approved by and at the December term, 1915, of said court. Christian P. Bell, as administrator de bonis non of said Frederick C. Pep-er’s estate, filed exceptions to that settlement, alleging that the said Charles G. Peper, as administrator of the Frederick C. Peper estate, was not entitled to the commission of five per cent on said distributive share of Caroline J. Peper, nor to some other commissions he had taken credit for, because he had not ‘ actually distributed’ the assets. Said exceptions were sustained by the probate court, and the appellant here was ordered by that court to surckange her settlement account accordingly.
“In addition to the foregoing facts, all of which were developed at the trial in the St. Louis Circuit Court, it is admitted by the agreed statement of facts that after Christian P. Bell was appointed administrator de bonis non of Frederick C. Peper’s estate, in the place of Charles G. Peper, deceased, he ‘reduced to his possession the aforesaid distributive share of the said Caroline J. Peper, without giving any receipt therefor to Carrie Miller Peper, executrix’ of Charles Cl. Peper, and retained custody of the same until February 28,1917, when he delivered said securities to Caroline J. Peper, who receipted to him for the same.
“The agreed statement of facts further provides ‘that if the court finds as a matter of law that the account of Carrie Miller Peper, executrix of the estate of Charles G. Peper, deceased administrator of the estate of F. C. Peper, deceased, should be surcharged, as contended for by the respondent, that the amount for which the said Carrie Miller Peper, executrix of the estate of Charles G. Peper, deceased administrator of the estáte of F. C. Peper, deceased, is liable, is the commission on the distributive share of Caroline J. Peper, amounting to $3,866.63, and an additional sum of $614.61, the same being, commissions for which Charles G. Peper took credit’ in said third semi-annual settlement.
“It does not appear specifically whether Christian P. Bell has charged or will charge the Frederick C. Peper estate five per cent commission on said distributive share of Caroline J. Peper, to-wit, $57,352.74, as aforesaid; but if Charles G. Peper was not entitled to said commission, then Christian P. Bell, his successor and administrator de bonis non of the Frederick 0. Peper estate, was or is entitled to the same. Therefore, practically the only question or controversy here is, which one of the two administrators is entitled to said commissions ?
“The foregoing facts present two questions: (1) Whether that part of the order of partial distribution made by the probate court at the June term, 1915, allowing Charles G-. Peper the five per cent commission on the distributive share of Caroline J. Peper, was a final judgment on such question? If so, that would settle the mater, inasmuch as it is admitted there was no appeal taken from said order and judgment. And (2) under the facts heretofore stated was Charles G-. Pep.er, as a matter of law, entitled to the commission on the share of Caroline J. Peper, he not having actually distributed the fund to her, because of the fact that she refused to receive it?”

The St. Louis Court of Appeals held:

“As to the effect of the order of partial distribution made at the June term, 1915. This order was based on Section 246, Revised Statutes 1909, which provides that, on a showing that there is sufficient money to satisfy all demands against the estate, the court shall order the payment of legacies and the distribution of shares. By virtue of Section 289 of the statutes an appeal could be taken from the order of partial distribution made by authority of Section 246. An appeal not having been perfected within the time required by law, the order became a final judgment as to the rights of the distribu-tees to their respective shares. [Sec. 251, R. S. 1909; Freeland v. Wilson, 18 Mo. 380; Pound v. Cassity, 166 Mo. 419.]
“However, in addition to making the partial distribution, the order in this case went further and allowed the administrator five per cent commission on the amounts to be distributed. As to the effect and scope of this part of the order, we do not think the order was a final judgment as to' such matter, as it was not th,e time or place to settle the matter of the compensation of the administrator by Section 229 of the statutes the question of the compensation of the administrator is adjudicated at the time a settlement is made, and under the decisions hereinafter referred to such matter does not become finally adjudicated until after final settlement unap-pealed from.
“And by the 'construction given by our courts to Section 289 an appeal does not lie from an annual settlement of an executor, but only from a final settlement. An annual settlement has none of the attributes of a final judgment and is not conclusive on any one. [Picot v. Biddle’s Admr., 35 Mo. 29; Baker v. Rinkle’s Exr., 41 Mo. 391; State to use v. Hoster, 61 Mo. 544; In re Davis, 62 Mo. 450; North v. Priest, 81 Mo. 561; In re Annual Settlement of Barnes, 43 Mo. App. 295.]
“The judgment of partial distribution was conclusive only as to such matters as were necessarily involved in the application for the order and came within the purview of Section 246 of the statute which authorized the order. [2 Black on Judgments (2 Ed.), secs. 611-617; Fish v. Lightner, 44 Mo. 268; Baumhoff v. Railroad, 205 Mo. l. c. 264, 104 S. W. 5; North St. Louis Gym. Society v. Hagerman, 232 Mo. 693, 135 S. W. 42; Sparhawk v. Buell’s Admr., 9 Vermont, 41.]
“It appears that the administrator, Charles G. Peper, at the December term, 1915, filed a "settlement in the estate and took credit for the commissions referred to, but this did not .adjudicate ’ finally his right to the commissions as it was an annual settlement and could not be appealed from. The commissions may, and frequently ar.e, allowed at the time of making annual settlements, but as was said by this court In re Annual Settlement of Barnes, supra, an appeal taken from such allowance in an annual settlement would be premature. Such matter of allowance is carried over and can be expected to an final settlement.
“It follows that the right of Charles G. Peper to the commissions in controversy was not finally adjudicated by the order of partial distribution ma’de at the June term, 1915,
‘ ‘ On the second proposition involved as to the right of Charles G. Peper’s estate to have the five per cent commission on the distributive share of Caroline G. Peper, we must rule against appellant, and this by reason of the construction placed on Section 229 of the statutes by this court in Estate of Garrison, 77 Mo. App. 333, and In re Peters, 128 Mo. App. 666, l. c. 672, 107. S. W. 406. This distributive share under the facts was never. actually disbursed and paid out by Charles G. Peper to the distributee Caroline J. Peper. True, the share was ordered paid to her by the order of partial distribution at the June term, 1915, and it may be conceded for argument sake that the effect of this order was to place the equitable title to said share in Caroline J. Peper and for which she could have maintained a suit direct against the administrator or upon his bond upon refusal to pay, as contended by appellant, still the share was not actually paid to her by the administrator because she refused to accept it, and until it was in fact actually paid he was not entitled to charge a commission thereon.
“Under the admitted facts this distributive share of Caroline J. Peper was set aside under the instructions of the probate court and deposited in a place of safekeeping under the control and custody of the administrator, Chas. G. Peper, and the surety on his bond, and remained there until after his death. This did not amount to a disbursement of the share to Caroline G. Peper so as to entitle the administrator, Chas. G. Peper, to the five per cent commission on said share.
“After referring to the construction placed on Section 222, Revised Statutes 1889, now Section 239 of the Revision of 1909, by the Supreme Court in Hawkins v. Cunningham, 67 Mo. l. c. 418; Hitchcock v. Mosher, 106 Mo. l. c. 582, this court, in Garrison v. Trust Co., 77 Mo. App. l. c. 338, says: ‘From reason, as well as on the authority of the cases cited above, we hold that the five p.er "cent commission allowed administrators for their services is not earned, nntil the sum on which it is claimed has been fully administered; that is, rightfully paid out in the due course of administration to creditors or distributees of the estate.’ - To the same effect is In re Estate of Boothe, 38 Mo. App. 456.
“It follows that the commissioner recommends that the judgment be affirmed.”

The judgment was affirmed as per the recommendation of Commissioner Bigg’s.- Such are the found facts and law of the St. Louis Court of Appeals. These rulings are said to be opposed to our rulings.

I. Prom the facts detailed by the Court of Appeals, it appears that the probate court made an order of partial distribution at1 the June term, 1915, of said court. ' .This was specifically permitted by gectioil 246, Reviged statutes 1909. By Section 289, Revised Statutes 1909, the distributee was given the right of appeal, but no such appeal was taken within the time allowed by law. By Section 229, Revised Statutes 1909, the administrator is allowed “as full compensation for their services and trouble a commission of five per cent on personal property and on money arising from the sale of real estate.” In this case we have the order of partial distribution duly made. We have the tender to Caroline Peper of the property coming to her under the order. We have then her refusal to receipt therefor, and a subsequent order of the court to the then administrator and bondsman to place such property in a safety-deposit box, to await the receipt of Caroline Peper. Following this, we have the probate court approving the third annual settlement, and the commission allowed to Charles G-. Peper in the partial order of distribution. It should be clear that a distributee cannot defeat the administrator’s right to commission allowed, by an arbitrary refusal to receive the distribution ordered. But in this case it does appear that after the death of Chas. G-. Peper, this distributee did receive this distribution. It is not clear just bow tbe successor to Charles Gr. Peper, one Christian P. Bell, administrator de bonis non. became possessed of the property, so as to deliver to Caroline Peper.

It is conceded by .the Court of Appeals that as Caroline Peper did not, within the statutory time, appeal from the order of partial distribution, such order became a final judgment. They so say in their opinion, and cite in support thereof Section 251, Revised Statutes 1909, Freeland v. "Wilson, 18 Mo. 380, and Pound v. Cassity, 166 Mo. 419.

We do not perceive the relevancy of the statute cited, but the two cases cited establish the doctrine that the probate court has the power to order partial distribution, and unless appealed from such order is final. In fact, the Court of Appeals not only concedes this fact (Section 246 so authorized it), but they further concede that prior to the death of Charles Gr. Peper, the administrator, the time for appeal had lapsed, and the judgment was final as against Caroline Peper, so far as the order of distribution is concerned. This order of distribution also ordered the payment of five per cent to the administrator, for making the distribution. This portion of the order the Court of Appeals says was not final, and upon this point permit a surcharge of the deceased administrator’s account. In other words, the facts recited by the Court of Appeals show that there was a valid subsisting order of partial distribution; that the administrator faithfully performed his part of the order, by tendering the distributive share, and yet he and his estate should not be allowed the commission duly earned by him. Of this question in the next paragraph.

II. On the latter question the Court of Appeals thus reasons: (1) that the portion of the order of partial distribution relating to the commission, was beyond the granted powers claimed in Section 246, supra; (2) that such order was made in an annual settlement, which has none of the attributes of a final judgment; and (3) that such judgment was not conclusive (being unappealed from) except so far as it referred to the partial distribution. In other words, the

court says that although in "any sett1eme~t" the probate court may order partial distribution, and if this order is not appealed from by the distributee, yet such order is not final on the allowance to the administrator. To make the matter plainer, a probate court finds that $241,000 of an estate can be safely distributed, together with the statutory commission of five per cent, and makes such an order. Such order is not appealed from and becomes final. The court, in the opinion says the order of disti~ihution is final, but, that the order as to commission is not final, and herein beats the administrator, who collected, preserved and paid out the funds, out of the statutory fees. This on the theory that this portion of the order was not within the scdpe of Section 246, supra. We are cited, in the opinion, to Fish v. Lightner, 44 Mo. 268; Baumhoff v. Railroad, 205 Mo. l. c. 264, and North St. Louis Gym. Soc. v. Hagerman, 232 Mo. 693, neither of which touc~h the point here. These cases go to the general question that the doctrine of res adj'udicata does not reach things not included in, or authorized to be included in, the judg~nent plead in bar.

In this case the probate court had the statutory authority (a matter conceded under Section 246) to make a partial order of distribution. That authority carried with it the further incidental and statutory authority to allow the administrator distributing the funds not to exceed five per cent. Under Pound v. Cassity, 166 Mo. l. c. 427, the order as a whole became final. In this the Court of Appeals thwart our rule.

III. In spirit, this ruling of the St. Louis Court of Appeals conflicts with In re Bryan's Estate, 190 S. W. l. c. 585. In this case prior to final settlement the executor and the beneficiary agreed upon the value of the items, and further agreed upon the statutory commission of five per cent. The items were not turned over in th,e lifetime of tire executor, although such executor had gotten the commission. We held that the executor’s estate should not he charged with the commissions received in advance of final settlement. In the instant case, the court fixed the commission under the law, and the administrator had appropriated it, as had the executor in Bryan’s estate, supra. In the one case the parties did under the law, and within the law, just what the court here did in its order of partial distribution. In principle there is no distinction, and it is conflict of legal principles we seek upon" certiorari, rather than “gray mule” cases. So for this further conflict the record cannot stand. It is therefore ordered that the record of the St. Louis Court of App.eals be quashed and for naught held.

All concur; Williams, Jin paragraph 3 and the result.


author: WALKER, O. J.

text:
    IN MATTER of HERBERT E. BADGER, Petitioner.
    In Banc,
    December 31, 1920.
    1. MARRIED WOMAN: Suit Against Husband. In view of tbe powers of courts of equity, and especially in view of our Married Woman’s Act (Sec. 8304, R. S. 1909), a wife may, as a femme sole, sue her husband in law or equity, as she may others, except that she cannot maintain an action for personal tort against him.
    2. JURISDICTION: Court of Equity: Rights of Person. Broad intimations in numerous cases that a complainant’s person is beyond the scope of the powers of a court of equity are not to be taken literally, for equity jurisdiction for the protection of personal rights does exist.
    3. -: -: -: Infants. The protection of infants, even from their parents, is one of the exceptions to the general rule that a complainant’s person is beyond the scope of the powers of a court of equity, and constitutes one of the established grounds for the exercise of equity jurisdiction in the protection of personal rights.

      4. -: Infants: Ward of Court: Public Charge. It is not necessary for the exercise of equity jurisdiction in the protection of infants that they be a public charge or that the proceeding so declare; they become wards of a court of equity when they are brought before it for any purpose, and any proceeding or application in equity relating directly to them is sufficient. Nor will statutory regulations as to their custody and care affect the court’s jurisdiction.
    5. -: -: Ownership of Property. The ownership of property by infants is not essential to the exercise of equity jurisdiction for the protection of their persons, and a failure to show the existence of property cannot be successfully urged to defeat jurisdiction.
    6. -:-: Consideration for Exercise: Welfare of Child: Member of Society. The reasons for the exercise by a court of equity of its jurisdiction for the protection of the persons of infants are (a) their welfare, life, health and moral and intellectual being, and (b) in addition their welfare as future members of society.
    7. -: -: Welfare of Child: Eight of Father. Equitable jurisdiction for the protection of an infant will be exercised, even though it may result in taking the child from its own parents or in placing it in the custody of one to the exclusion of the other, when the welfare of the child will be promoted thereby. In such case the paramount right of the father to its custody, while conceded, as a general proposition, need not be considered, where by his moral turpitude he has forfeited his right to such custody: for the father’s right is not absolute, but if he is found unfit it must give way to the welfare of the child.
    8. -: Suit by Wife For Maintenance of Minor Children: Eight to Divorce: Contempt. A married woman may file a bill in equity against her husband for the maintenance and custody of their minor children, and upon a showing of his moral turpitude a decree in her favor may be enforced by imprisoning him for his refusal to surrender the children into her custody; and her right to a decree for maintenance and for the custody of the children is not impaired by the fact that, although entitled to a decree for separation, she waives her right thereto and prays only that he be required to make provision for herself and the children ■ and that she be awarded their custody.
    9. INFANTS: Custody: Procedure: Habeas Corpus: Suit for Maintenance. The wife may maintain a suit against her husband for maintenance and for the custody of their children, or habeas corpus for their custody may be maintained; in neither case is the court bound by the mere legal right of parents, but the welfare of the minor children is the matter of paramount consideration, and that, in either proceeding, is q subject of equitable jurisdiction,

      Habeas Corpus.

    Writ quashed.

      W. 0. Jackson and John H. Lucas for petitioner.
   WALKER, O. J.

Petitioner was adjudged guilty of contempt by the Circuit Court of Bates County for refusing to obey an order of that court, and was sentenced to imprisonment in the county jail. He seeks release therefrom on the ground that the court was without jurisdiction.

In March, 1919, the wife of the petitioner filed a bill in equity against him in the Circuit Court of Bates County for maintenance and the custody of their three minor children. A decree was rendered in her favor. Upon an appeal to the Kansas City Court of Appeals the judgment of the trial court was affirmed and the custody of the children awarded to the mother. [224 S. W. 41.] Petitioner thereupon applied to the Supreme Court for a writ of certiorari to be directed to the Court of Appeals, on the ground that its opinion was in conflict with certain decisions of the Supreme Court. The application for the writ was denied.

Petitioner then applied to the Supreme Court for a writ of prohibition to prevent the trial court from taking further cognizance of the suit in which it had rendered judgment against him, and especially from proceeding against him for contempt for his failure to surrender the custody of the children to their mother. The application for this writ was denied.

Upon the failure and refusal of the petitioner to comply with the judgment of the trial court he was adjudged guilty of contempt and ordered into the custody of the Sheriff of Bates County to be imprisoned in the county jail until the further order of the court, or until otherwise discharged by due process of law. Petitioner thereupon applied to the Supreme Court for a writ of habeas corpus alleging as sole ground therefor, as in the applications for certiorari and prohibition, a lack of jurisdiction of the trial court in equity to entertain a proceeding to determine and award the custody of minor children.

It is not necessary to set forth in detail the facts adduced in evidence upon which the trial court bas.ed its finding in rendering judgment herein and in thereafter ordering the petitioner’s imprisonment for his failure to comply therewith. These facts, if not expressly conceded, are not attempted to he denied and are made a part of the sheriff’s return. We also find them correctly set forth with all n.ecessary fullness in the learned opinion of the Court of Appeals by ElusoN, J. Their recital here would consequently only serve to emphasize the moral turpitude of the petitioner and add, if possible, to the radiant lustre of hi's wife’s life as manifested by her fidelity to duty.

Only so far, therefore, as it may be deemed necessary to clearly define the character and render evident the attitude of the petitioner will the facts as found by the trial court be stated.

The petitioner, his wife, and three small children, lived in Colorado. The youngest child became seriously ill and so continued for many months. The mother attempted during all of this time to give the child such attention as its condition required, and at the same time to care for the other children and perform all the duties of a housewife. As a result her health broke down and she suffered from nervous prostration. After months of treatment she was taken by petitioner to her father’s home, the children then being cared for by his mother. During the latter part of the wife’s illness a nurse was employed to care for the wife. The petitioner became infatuated with this woman, afterwards shown to be without character. Upon the wife’s recovery and her repeated importunities that the petitioner provide a home for her and the children, he refused to do so, ineffectually sought to obtain a divorce or to induce the wife to obtain one, and continued his clandestine relations with the woman, who, in the meantime, had gone to Rich Hill, Missouri. Upon the refusal of the petitioner to establish a home for his wife and children and his cruelly informing the wife that he did not intend to live with her, she brought a suit in Colorado for maintenance and the custody of the children. Upon being' served with summons in that proceeding he took the children, then at his mother’s, and came with them to Rich Hill, where he proceeded to establish a home and to install therein as mistress the woman with whom he had become infatuated, placing his' children in her charge. This woman’s immorality was a matter of record of which the petitioner had knowledge. This condition of affairs existed at the time the wife brought the action in Bates County and continued after the custody of the children had been awarded to her, when the petitioner spirited them away in violation of the court’s decree, and hence the adjudication in contempt from which petitioner seeks release.

The right of the petitioner to the writ herein is dependent upon the jurisdiction in equity of the trial court. This jurisdiction is the question primarily to be determined. Other inquiries determinative of that jurisdiction may properly be considered.

I. At the common law the identity of the husband and wife as one person precluded either from suing the other; but in equity, where the wife’s claims were adverse to hér husband’s, she might sue him by next friend and he might sue her. Ear-¡y in history of our jurisprudence courts of equity recognized the separate existence of the wife and secured to her her separate estate and equitable rights. [Tennison v. Tennison, 46 Mo. 77.] Her rights as thus limited were generally recognized here and in other states of the Union before the enactment of the :Married Women’s Act. The dominating changes effected by this character of legislation are too familar to .require extended recital. While the statutes of the . several states on this subject are similar in the main, they -are different in minor particulars not necessary to be set. forth here. Generally this purpose, as evidenced by their terms, is to render the husband and wife independent of each other as to their property and litigable rights; thus rendering the, wife capable of contracting in law as well as in equity, as if she were a femme sole. The Missouri statute (now Sec. 8304, E. E. 1909), omitting the proviso, not pertinent, is as follows: “A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party.”

An illuminating opinion by Gantt, J., in Rice, Stix & Co. v. Sally, 176 Mo. 107, after construing this statute, concludes that “a proper construction of same leads to the complete emancipation of the wife from her matrimonial bonds so far as her property rights are concerned in law as well as in equity, that she may contract with her husband and sue and be sued by him at law.” This conclusion was reached in determining that the wife might maintain an action at law against her husband.

In Grimes v. Reynolds, 184 Mo. 679, 694, the right of a wife to litigate concerning her separate estate, to become a creditor or a debtor of her husband, and the authority of either to enforce their rights in equity against the" other, was definitely declared. Our latest ruling on this subject, which follows the trend of former decisions, is found in Regal Realty etc. Co. v. Gallagher, 188 S. W. 151, in which it is broadly stated that the statute in clothing the wife with powers of a femme sole and authorizing her to transact business and contract and be contracted with, applies as well to her relations with her husband as with others (citing numerous cases).

From all of which it follows that a wife may, as a femme sole, sue her husband as she may others in law as well as in equity, except that slie cannot maintain an action for a personal tort against Mm. [Rogers v. Rogers, 265 Mo. 200].

II. Before discussing the immediate question of jurisdiction here demanding determination, we may not inappropriately consider the more general inquiry as to the power of a court of , . . . ,. .. . equity to exercise jurisdiction m the protection of personal rights or the extent to which the maxim aequitas agit in personam is applicable.

It is true that the findings of the trial court not only considered and disposed of the personal status hut the property rights as well of the children. TMs might he regarded as foreclosing the necessity of a consideration of the general inquiry; hut that no phase of the court’s equity powers may not he subjected to review, we consider it. If not expressly stated, the intimation appears in numerous cases that a complainant’s person is heyond the scope of the powers of a court of equity. However, this conclusion must not be taken literally. “If so,” as was forcefully said by a modem commentator (Burdett A. Rich), “it would make the system of equity suitable only to a semi-savage society which has much respect' for property but little for human life. . Our equity jurisprudence does not deserve so severe a reproach.” "While it has done much for the protection of personal rights, it has been reluctant to admit it. The existence of this power rendered evident by its frequent exercise, cannot be affected by the reluctance of the courts in admitting it. Instances illustrating the exercise of equity jurisdiction for the protection of personal rights may by the curious be found in an exhaustive note appended to Chappell v. Stewart, 37 L. R. A. 783, and in 8 Sol. Jour. 158, 179, where the cases ruling affirmatively upon the court’s power in this respect are carefully collated. These cases, supplemented by numerous others herein cited, we will consider in tlie discussion of the immediate question at issue. They will he found to authorize the conclusion that courts of equity, clothed as they are with this general pow.er, may include in its exercise the determination of the personal rights of infants. If this conclusion he correct, jurisdiction in the instant case may properly he predicated thereon.

But if resort be had to the illogical refuge that the exercise of the court’s power as applied to the •ease at bar, is not included within and made a part of its general power, then the propriety of that exercise may he sustained on the ground that the protection of infants, even from their parents, is one of the exceptions to the limitation under discussion and constitutes one of the well established grounds for the exercise of equity jurisdiction in the protection of personal rights. [Shelley v. Westbrooke, Jac. Eng. Ch. R. 266; Warde v. Warde, 2 Phill. Ch. 786; Creuze v. Hunter, 2 Cox, Ch. Cases, 242; Thomas v. Roberts, 3 DeG. & S. 758; State v. Grisby, 38 Ark. 406; Cowls v. Cowls, 3 Gilm. 435; State v. Stigall, 22 N. J. L. 286; Wilcox v. Wilcox, 4 N. Y. 575; Ward v. Roper, 7 Humph. 111; State v. Baird, 21 N. J. Eq. 384; Striplin v. Ware, 36 Ala. 87; In re Flynn, 2 DeG. & S. 457: Eyre v. Countess of Shaftesbury, 2 P. Wms. 103 as annotated 2 L. Cas. Eq., White & Tudor, p. 1446.]

III. Whether this jurisdiction had its origin in the fiction of the right of the king as parens patriae, to which we referred approvingly in State ex rel. Cave v. Tincher, 258 Mo. 1, which right it is contended reverted to the king as the general protector of all the infants in the realm after the abolition of the Court of Wards (3 Bl. Comm. 426; 2 Fonbl. Eq. B2, pt. 1, ch. 2, sec. 1, note a; Eyre v. Countess of Shaftesbury, 2 P. Will. 118; Wellesley v. Wellesley, 2 Bligh (N. S.) 136; Wellesley v. Duke Beaufort, 2 Russ. 1, 20; Cary v. Bertie, 2 Vern. 333; Morgan v. Dillon, 8 Mod. R. 135; DeManneville v. DeManneville, 10 Ves. 52, 63; Ex parte Phillips, 19 Ves. 118); or that it arose from considering guardianship in the nature of a trust, and trusts being the favored objects of equity, that the jurisdiction had this broad general foundation (Duke of Beaufort v. Berty, 1 P. Will, 705; 3 Story, Eq. Juris. (14 Ed.) see. 1745 and notes); or that it had its origin in one of the old common-law writs in relation to wards (Coke Litt. 89a, Hargrave’s note 70; 2 Fonbl. Eq. B2, pt. 2, ch. 2, sec. 1); or that it was originally an usurpation for which the best possible excuse was that if afforded opportunity for the beneficent exercise of a power peculiarly equitable in its nature which had not otherwise been sufficiently provided for, is immaterial so far as any of these theories may in a determinative way affect the matter at issue. [3 Story, Eq. Juris, see. 1747 and notes.] We have stated them simply to show the manner in which the question has been mooted; even this array will not suffice to cover the entire field of conjecture, for it is at best nothing mor.e, to which resort has been had to account for the origin of this jurisdiction. This much is certain, it exists and has been exercised by courts of equity for more than two centuries in England .and in the different states of this Republic for shorter periods of time but for like reasons and purposes. [See English and American cases cited in 3 Pom. Eq. Juris. (4 Ed.) notes 1 and 2 to sec. 1304, p. 3141; In re Agar-Ellis, 24 Ch. Div. 317; In re Elderton, 25 Ch. Div. 220, 20. R. C. L. sec. 14, p. 599; Neville v. Reed, 134 Ala. 317; Kelsey v. Green, 69 Conn. 291; Lally v. Fitz-Henry, 85 Iowa, 49; Meritt v. Swimley, 82 Va. 433, 3 Am. St. 115.]

It will be seen not only from the lucid text of Pom-eroy but from the adjudicated cases, that the inherent power of a court of equity over the persons and estates of infants is very wide. [United States to use of Hine v. Morse, 218 U. S. 493.] While it is technically true that a requisite to jurisdiction is that the infant must be a ward of the court, it is not necessary that it be a public charge or that the purpose of the proceeding be to so declare it, as was the purpose in the Tincher case, supra; - it becomes the ward of the court when it is brought before it for any purpose; and any proceeding or application in .equity relating directly to the infant is sufficient. [Gynn v. Gilbard, 1 Drew & S. 356; In re Potter, L. R. 7 Eq. 484; In re Graham, L. R. 10 Eq. 530; In re Hodge’s Settlement, 3 Kay & J. 213; Butler v. Freeman, Amb. 302; Rivers v. Durr, 46 Ala. 418; Williamson v. Berry, 8 How. (U. S.) 495, 531, 12 Law Ed. 1170; 20 R. C. L. sec. 15, p. 601 and notes; see also annotations to Faulkner v. Davis, 98 Am. Dec. l. c. 733, 14 R. C. L. 267 sec. 42, n. 10.] Statutory regulations as to the custody and care of infants will not affect the court’s jurisdiction. [Anon. 55 Ala. 428; Bryan v. Bryan, 34 Ala. 516; Moore v. Moore, 66 Ga. 336 ; State v. Thompson, 117 La. 102; People v. Parr, 121 N. Y. 679; 29 Cyc. 1602 and notes.]

The infant’s ownership of property is not essential to the existence of jurisdiction. We have shown that this question is eliminated at bar on account of the findings of the trial court. If not eliminated, an allegation in the pleadings and the trial court’s findings in regard thereto might he regarded as mainly formal, and a failure to show the existence of property could not he successfully urged for the purpose of defeating the jurisdiction. In England as well as in this country, well considered cases sustain the exercise of this jurisdiction although it affirmatively appeared that the infants had no property. [Johnstone v. Beattie, 10 Clark & Fin. 42; Cowls v. Cowls, 3 Gilm. 435, 44 Am. Dec. 708; Maguire v. Maguire, 7 Dana, 181.]

In this connection a learned Federal judge made the following pertinent statement: “If a court has jurisdiction where the matter in dispute is a mere right of property, why should its jurisdiction not extend to a more important controversy where the custody and control of' a child is the matter in dispute?” [Bennett v. Bennett, Deady (U. S. Dist. Court Rep.) 321.]

IV. Brushing aside, therefore, these purely technical questions as to wardship and the possession of property, what are the impelling reasons for the exercise of the jurisdiction of courts of equity in cases as at bar? The welfare of the child, its life, health and moral and intellectual being are, in a proper exercise of the court’s power, to be kept well in view in all controversies concerning its custody, care and control. In addition, if the court be imbued with that spirit of patriotism which should always prompt judicial action along with a proper consideration of the rights of litigants, the welfare of the child should be looked to as a future member of society upon whom in the fullness of time will fall its share of the burdens and responsibilities of citizenship. This may be more homiletic than juridical, but is not the judiciary more immediately charged with the public welfare than either of the other co-ordinate powers of government?

In the evolution of equitable jurisdiction we find that, in a proper case where it appears that the welfare of the infant will be best promoted by removing it from the custody of its guardian, this power may be exercised, although it may result in taking the child from its own parents or in placing it in the custody of one to the exclusion of the other. The paramount right of a father to such custody, upon which this court has explicitly ruled (State ex rel. Crockett v. Ellison, 271 Mo. 416), need not be considered, and, while it may be conceded, as a general proposition, it will not suffice to shorten, the arm of equity to prevent its reaching the father to deprive him of the child’s custody and transfer it to the mother, where by his moral turpitude he has forfeited the right to such custody. In thus overruling the father’s paramount claim and substituting therefor its own discretion, the court is moved not by a purpose to punish the father but to protect the children and promote their welfare. This accords with right reason and is a proper exercise of the power of a court of conscience. The correctness of this conclusion is rendered more evident when we consider that however paramount and immune from interference may he the parent’s right to priority of custody, this right is not an absolute one, and if the parent is found unfit it must give way to the welfare of the child. [State ex rel. v. Ellison, supra; Weir v. Marley, 99 Mo. l. c. 495; In re Ingenbohs, 173 Mo. App. 261; Ex Parte Smith, 200 S. W. 681; Stapleton v. Poynter, 111 Ky. 264, 53 L. R. A. 784 and notes; Re Lally, 85 Ia. 49, 16 L. R. A. 681; State ex rel. Lasserre v. Michel, 105 La. 741, 54 L. R. A. 927; Nugent v. Powell, 4 Wyo. 173, 20 L. R. A. 199; Van Walters v. Board, 132 Ind. 568, 18 L. R. A. 433 ; Lynch v. Rotan, 39 Ill. 14; Downin v. Lessors, 35 Md. 474; Lee v. Lee, 55 Ala. 590; In re Stockman, 71 Mich. 180; 3 Story, Eq. (14 Ed.) sec. 1752.]

Nor is the power of the court to be impaired because the wife, although entitled to a decree of separation, waived her right thereto and insisted only that the husband be required to make provision for herself and the children and that she be awarded the custody of the latter. Cases which hold that a court’s right to the determination of the custody of children is dependent upon a decree of divorce will be found upon an .examination to be limited to those in which the right to the custody was sought as an incident to the suit for the decree, and not, as in the instant case, to the purely equitable ground of the unfitness of the father to continue in the exercise of that right. In the majority of the cases cited in this opinion in support of the court’s .jurisdiction the gravamen of the action was not to secure a decree of divorce but to determine the custody of the children. In Wellesley v. Wellesley, supra, which may be considered as one of the leading cases on the subject, the purpose of the suit was to determine the custody of minors. In numerous other cases where a decree of separation was sought and denied, the courts have nevertheless awarded the custody of minor children to one parent or the other as the facts warranted. [Horton v. Horton, 75 Ark. 22; Robinson v. Robinson, 146 App. Div. 533; Davis v. Davis, 75 N. Y. 221; Light v. Light, 124 App. Div. 567; Cornelius v. Cornelius, 31 Ala. 479; Anon. 55 Ala. 428; Luck v. Luck, 92 Cal. 653; Hoskins v. Hoskins, 28 Ky. L. Rep. 435; Knoll v. Knoll, 114 La. 703; Power v. Power, 65 N. J. Eq. 93; Lusk v. Lusk, 28 Mo. 91; Defee v. Defee, 51 S. W. (Tes.) 274; Baird v. Baird, 21 N. J. Eq. 384; Matter of Tierney, 128 App. Div. 835; 19 C. J. 789, 794 and notes.]

V. The jurisdiction of the trial court having been established, only passing consideration need be given to the formal character of the proeeed-ing. It was, as stated, a suit in equity for maintenance and the custody of the children. Many precedents sustain the propriety of this form of proceeding. In others, to effect a like purpose as to custody, habeas corpus has not improperly been resorted to. In such cases it is not the limited jurisdiction of this writ that is invoked, because the proceeding is not directed towards freeing children from imprisonment, but. to exercise the broader power of courts of general equity jurisdiction over the custody of the persons of infants. • An admirable modern compendium of legal principles makes the following deductions from numerous cases:

“The ascertainment and enforcement of the custody of minor children by the use of the writ of habeas corpus is of an equitable nature, and in. such cases the question of personal freedom is not involved, for an infant, from humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority; and the court, when asked to restore an infant, is not bound by any mere legal right of parent or guardian, but is to give it due weight as a claim founded on human nature, and generally equitable and just. Therefore these cases are not decided upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but upon the court’s view of th.e best interests of those whose welfare requires that they he in custody of one person or another; and hence a court is in no case hound to deliver a child into the custody of any claimant or of any person, hut should, in the exercis.e of a sound judicial discretion after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appeal’s to require.” [12 .R. C. L. 1215.]

Mr. Justice BeNSON, of the Supreme Court of Oregon, in discussing this question says, in effect: The nature of the investigation, the peculiar latitude involved in the inquiry, the nature of the relief sought and granted, present an irresistible demand for the intervention of a court of equity. In the absence of our statute it must he conceded that a court of equity would have jurisdiction ... It has been held, however, that no Legislature can abrogate or impair the efficiency of the writ, and its use as it was available at common law is still available in courts of equity; and the fact that the Legislature has seen fit . only to provide a procedure for its exercise in cases for which it was originally designed and is silent as to the procedure in cases calling for the exercise of chancery powers, it follows that.proceedings in equity are still available. [Turner v. Hendryx, 86 Ore. 590.]

Chancellor SteveNsoN, of the Court of Errors and Appeals of New Jersey, in speaking for that court in a case involving the same issue as that at bar, said:

“It is not the limited jurisdiction upon habeas corpus which is exercised by the justices of the supreme court as well as the chancellor which is invoked in this case. The petition is not directed towards freeing this little child from imprisonment. The pleadings set forth in detail the claims of the contending parties to the custody of the infant, and the proofs have been directed toward sustaining and defeating respectively each of these hostile claims. The broad jurisdiction invoked is the ‘general equity jurisdiction over the custody of the person of infants which the chancellor exercises as parens patriae’ (Citing cases).” [In re Flynn, 87 N. J. Eq. l. c. 414.]

These ruling’s authorize the conclusion that if another form of action than that of a hill in equity has been resorted to — for example, hateas corpus — the chancery powers of the court must he invoked to determine the issue. [Campbell v. Campbell, 76 Mo. App. 396; Green v. Campbell, 35 W. Va. 698, 29 Am. St. 843; Armstrong v. Stone, 9 Grat. 102; Brooke v. Logan, 112 Ind. 183, 2 Am. St. 177.] Having been determined, the court will so exercise its prerogative, under all the facts, as will best promote the welfare of the child, regardless of its -wishes or inclinations. [Moore v. Christian, 56 Miss. 408, 31 Am. Rep. 375; In Re Swall, 36 Nev. 171; Jones v. Harmon, 27 Fla. 238; 21 Cyc. 330, note 61.]

From all of which it appears that the petitioner is held in custody upon the judgment of a court of competent jurisdiction and that-the writ of habeas corpus was improvidently issued and should be quashed and the petitioner remanded to the- custody of the sheriff of Bates County. It is so ordered.

All concur, except Graves, J., who dissents; Woodson, J., concurs in the result.


author: WILLIAMSON, J.

text:
    THE STATE ex rel. BENT GOODLOE v. G. A. WURDEMAN, Judge of Circuit Court.
    In Banc,
    December 31, 1920.
    1. MANDAMUS: To Circuit Court: Remedy By Appeal. Majidamus to the circuit court requiring it to take jurisdiction of a case appealed to it from the probate court cannot be denied on the theory that relators have an ample remedy by an appeal from the order of the circuit court dismissing the appeal (upon motion -without a hearing) upon the ground that relators had no such interest in the proceedings in the probate court as entitled them to an appeal. The question involved is one of jurisdiction, and where the circuit court erroneously rules on such a question, and declines to hear the case on its merits, an appeal is not an adequate remedy, and mandamus lies.
    2. APPEAL: Prom Probate Court: Removal of Guardian. The statutes provide for an appeal to the circuit court, by an aggrieved party, from an order of the probate court refusing to remove the guardian of a person of unsound mind. All the statutes on the subject, including- Sections 289, 298 and 3955, Revised Statutes 1909, are reviewed, and it is held that an appeal lies to the circuit court from all orders and judgments of the probate court unless expressly prohibited, and an appeal in such a matter is not prohibited if taken by the right parties.
    3. -: -: -: By Sons of Ward of Unsound Mind. The right of appeal is a creature of the statute, and the sons and heirs at law of a person of unsound mind have no such interest in her estate as entitles them to an appeal from an' order of the probate court refusing, upon their motion, to remove her guardian on the alleged ground that her estate is being wasted and mismanaged; for the son of such living person of unsound mind under guardianship is not an “heir, devisee, legatee, creditor,' or other person having an interest in the estate under administration,” and has no pecuniary interest therein while she lives, and the statute grants an appeal from an order of the probate court to only such persons as are embraced within its words.
    4. -: -:-:-: Ejusdem Generis. Where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase should be construed to refer to things of the same kind, unless the specific words or clauses do not exhaust the class; and since the statute relating to procedure in the probate court says that “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,” this general clause is properly construed as embracing only such persons (other than the administrator) as have a pecuniary interest in the estate, and does not embrace the children of a person of unsound mind under guardianship, whose guardian such children asked the probate court to remove on the ground that he was wasting and mismanaging the estate. There can be no heir.of the living, and though such children are heirs-apparent, the statute is not broad enough to allow an appeal to them on sentimental grounds of natural and laudable interest in their afflicted mother’s welfare, but limits an appeal to those who have a pecuniary interest in her estate.

      Mandamus.

    ALTERNATIVE WRIT DISCHARGED.

      Campbell Cummings and Robert L. Shachelford for relator.
    (1) Ordinarily an appeal is not open where the action of the conrt is purely negative. 2 Woerner’s Administration (2 Ed.), sec. 545. Mandamus is the only proper remedy where a “court refuses to proceed with a case, because the court was erroneously of opinion that it did not have jurisdiction. “A dismissal on the ground of the want of jurisdiction is not such an assumption of jurisdiction as to require its refusal by. appellate proceedings.” State ex rel. v. Shackelford, 263 Mo. '52; State ex rel. v. Homer, 249 Mo. 64; State ex rel. v. Me-Elhinney, 246 Mo. 56; State ex rel. v. Broaddus, 239 Mo. 368; State ex rel. v. Grrimm, 220 Mo. 489; State ex rel. v. Smith, 172 Mo. 459; State ex rel. v. Smith, 172 Mo. 627; State ex rel. v. 0 ’Bryan, 102 Mo. 259; State ex rel. v. Philips, 97 Mo. 347. An appeal is not a full and adequate remedy. State ex rel. v. Homer, 249 Mo. 75; State ex rel. v. O’Bryan, 102 Mo. 259; Sedwick F. Oo. v. Craig, 160 Mo. App. 91; 26 Cyc. 171; 18 R. C. L. see. 230. (2) An appeal will lie to the circuit court from the probate court’s action overruling the motion to remove a guardian for neglect of duty and misconduct. Coleman v. Farrar, 112 Mo. 62, 72; Stanton v. Johnson Est., 177 Mo. App. 56; Hall v. County, 27 Mo. 330; Secs. 289, 298, 522, 3956, 4067, R. S. 1909; Brock-man v. Webb, 189 Mo. App. 476; Fitzmaurice v. Turney, 256 Mo. 187; State ex rel. v. Wiethaupt, 238 Mo. 167. (3) The adult sons of an adult non compos have sufficient interest for an appeal. Boynton v. Dyer, 18 Pick. 1; Robinson v. Dayton, 190 Mass. 459; State ex rel. v. Dickman, 175 Mo. App. 548; In re Olson, 10 S. D. 648; 3 C. J. 632, sec. 493; P. 647, sec. 509; P. 649, sec. 512; R. S. 1909, secs. 289, 298, 522, 3956, 4067.

      Wilson & Trueblood for respondent.
    (1) The decision of respondent that the appellants did not have an interest in the estate under administration cannot b,e reviewed in a proceeding for mandamus, because mandamus is not intended to serve the purpose of a writ of error or appeal. 4 Am. L. Rep. 632; Ec-kerle v. Wood, 95 Mo. App. 378. (2) There is no provision in Art. 19, Chap. 12, R. S. 1909, allowing petition-, ers an appeal from an order of the probate court. Morris v. Morris, 128 Mo, App. 673. (3) Under Sec. 289, R. S. 1909, the right of appeal from the probate court in any case is restricted to “any heir, devisee, legatee, creditor or other person having an interest in the estate under administration. ’ ’ Expectant or presumptive heirs have no such interest. In re Carpenter, 140 Wis. 572, 25 L. R. A. (N. S.) 155. (4) The Massachusetts cases cited by petitioners are not applicable, because under the Massachusetts statutes presumptive heirs of a non compos are entitled to notice, and the the ward is treated as civilly dead. Harrington v. Harrington, 13 Gray (Mass.) 513; Leyland v. Leyland, 186 Mass. 420; Lawless v. Reagan, 128 Mass. 592. These Massachusetts cases reconcile the Massachusetts decisions with the general rule. For the general rule see annotation in foot note, In re Carpenter 25 L. R. A. (N. S.) 155.
   WILLIAMSON, J.

This is a proceeding by mandamus issuing out of this court against the respondent as Judge of Division Number Two of the Circuit Court of St. Louis County, whereby it is sought to require him in his official capacity to take jurisdiction of a certain matter heretofore pending in his court and to hear and determine it upon its merits.

The issuance of an alternative writ was waived and respondent entered his appearance and filed a demurrer to the petition. The cause is submitted upon the petition and demurrer.

The petition alleges that relators are sons and heirs at law of Emmeline Bent Goodloe; that she had been duly adjudged to be of unsound mind, and that Ward Goodloe, another son, is the duly appointed and acting guardian of Mrs. Goodloe; that in his fiduciary capacity aforesaid, Ward Goodloe has been guilty of flagrant misconduct in various particulars, which, in the view we take of this case, it is unnecessary here to set out in detail ; that the estate of Mrs. Goodloe is thereby suffering from waste and mismanagment; that relators filed in the .Probate Court of St. Louis County, the court having jurisdiction of the person and estate of said guardian and- his. ward, their motion to have him removed upon the grounds above mentioned and for the appointment of another in his stead; that their motion was overruled, and that relators thereupon duly appealed from the order of the probate court overruling their motion to the circuit court above named; that in the circuit court, the guardian filed a plea to the jurisdiction of the circuit court and a motion to dismiss the appeal, upon the ground that no appeal was allowed by law in masters of this sort, and upon the further ground that appellants in that proceeding (relators here) had no such interest in the proceedings as would entitle them to prosecute an appeal; that said motion was sustained, and said appeal was dismissed upon the ground last above named. Relators also set forth in their abstract a memorandum opinion filed by respondent at the time he dismissed the appeal. This memorandum is as follows:

“I have carefully considered the authorities cited by able counsel on both- sides in this case and am still in doubt as to whether an appeal will lie in a case of this sort. The doubt, perhaps, ought to be resolved in favor of the appellants for the right of appeal ought to be construed liberally.
“I have been favorably impressed, however, by ap-pellee’s contention that appellants have no interest in the estate which entitled them to an appeal. As is stated in Sanborn v. Carpenter, 140 Wis. 572, no legal rights of appellants in or to property are affected. A next of kin or heir apparent has no right or legal interest in the property of a living relative and therefore cannot be ‘aggrieved’ by the decision of the probate court in this case. Wherefore, they have no ‘standing in court, ’ and the motion to dismiss the appeal will be sustained. ’ ’

I. The question which first confronts ns in this case is whether or not mandamus will lie under the facts above set forth. Respondent asserts that if relators have any remedy it is by appeal. To this contention we cannot agree. It is alleged in the application and set forth in the memorandum filed by respondent in the original case that the appeal from the probate court was dismissed in the circuit court for the reason that, as respondent decided, the appellants (relators here) had no such interest in the proceedings as entitled them to appeal from the judgment of the probate court. Respondent so held because the appellants were, as was admitted, sons of the ward, who, is still living, and, since no one is heir to the living, appellants had no standing in court.

It is plain that this question in no sense goes to the merits of the case. It is a purely preliminary matter, necessary to be determined, it is true, but standing in much the same relation to the appeal in the original case, as would'a question as to the sufficiency of the service of a summons stand in any ordinary suit when the sufficiency of service was properly drawn in question. In other words, it goes to the jurisdiction of the court.

We have repeatedly held in such cases that when the trial court erroneously rules adversely on such a question, and declines to hear the case upon the merits, an appeal is not an adequate remedy, and mandamus will lie.. [State ex rel. v. Shackelford, 263 Mo. 52, l. c. 59; State ex rel. v. Homer, 249 Mo. 58, l. c. 66.] In the Homer case, supra, the question is discussed at some length and numerous authorities are cited in support of the doctrine there announced. It would be useless to repeat those arguments or again to cite those authorities here. We rule this point in favor of relators.

II. Respondent contends that no appeal lies from the probate court to the circuit court in such a case as is here involved. The right of appeal is of purely statutory origin. Unless, therefore some statutory authority can be found for an appeal in this instance respondents contention must be sustained.

Section 289, Chapter 2, Article 12, Revised Statutes 1909, relating to appeals, omitting irrelevant portions, reads as follows:

‘‘Appeals shall be allowed from the decision of the probate court to the circuit court, in the following cases: . . . Fifteenth, and in all other cases where there shall he a final decision of any matter arising under the provisions of Articles I to XIII inclusive, of this chapter. ’ ’

This section, it will he observed, is specifically limited to matters “arising under the provision of Articles I to XIII.”

The matter in hand relates to the removal of the guardian of a person of unsound mind, and arises under and is governed by the provisions of Article 19 of .this chapter.

Another statute relating to probate courts, however, is as follows:

“All probate courts and the clerks thereof shall be governed in all things by the provisions of Articles I to XIII, inclusive, of this chapter, so far as they may be applicable to their jurisdiction and duties.” [Sec. 298, Chap. 2, R. S. 1909.]

Relators contend with some degree of plausibility that Section 289, supra, is, by the provisions of Section 298, made applicable to Article 19 of Chapter 2, as full}? as to Articles One to Thirteen of that chapter, and that an appeal would lie in this case by vii'tue of these two sections alone. This argument is not without force in view of the fact that appeals are favored by our law and .statutes having to do with the right to an appeal should be liberally construed. [State ex rel. v. Shelton, 238 Mo. 281, l. c. 297; Nolan v. Johns, 108 Mo. 431, l. c. 435; In re Doe Run Lead Co,, 223 S. W. 600, l. c. 606.]

But all doubt is removed by still another statutory provision. Section 3956, Revised Statutes 1909, regulating the jurisdiction of circuit courts, omitting irrelevant portions, provides as follows:

“The circuit courts in the respective counties in which they may be held shall have power and jurisdiction as follows: . . . ; Fourth, Appellate jurisdiction from the judgments and orders of . . . probate courts — in all cases not expressly prohibited by law, and shall possess a superintending control over them.”

This statute is exceedingly broad. By its terms, an appeal lies unless expressly prohibited, and we find no such prohibition. The sections cited are in our opinion abundantly sufficient to confer the right of appeal in the case at bar. [Coleman v. Farrar, 112 Mo. 54, l. c. 72.] Respondent’s contention on this point cannot be sustained.

III. The third and last point presented for our decision is the question whether or not relators have such an interest in the original proceeding as entitled them to take an appeal. Otherwise stated, are relators ‘ ‘ aggrieved by the decision of the court;” for that is the statutory requirement. [See Sec. 291, R. S. 1909.]

Upon this question there is a wealth of adjudicated cases and little diversity of opinion.

On the one hand it is argued that there must be involved upon the part of the appellant either a pecuniary interest or a personal right. Rsepondent asserts that neither exists in the case at bar. Rélators are not heirs of their mother, for no one is heir to the living. Should her estate be dissipated, it will cast no burden upon re-lators, for a child is under no legal obligation to support a parent. Relators at present have no interest in her property, and they may never have. Hence no property rights of relators are involved; and it is obvious that they have no personal rights in the matter.

Relators, on the other hand, say that, if not heirs, they are at least heirs-apparent of their mother, and that, in any event, the natural and laudable interest which every dutiful child has in the welfare of an afflicted parent is an interest of more real importance than a mere pecuniary interest, such as any creditor. might have and assert, and is one of which the law does and should take cognizance.

In considering this question it is well to remember that the right to appeal is a creature of the statute. The law-making body may designate the persons upon whom it confers that right and rqay prescribe the conditions upon which it may be exercised. By Section 289, Revised Statutes 1909, relating to procedure in probate courts, it is provided that “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.

Now. it is not claimed that relators are either heirs, devisees, legatees or creditors, and it is patent that they have no pecuniary interest in the estate here involved. "Whatever interest they may have as children of the ward in the case in hand, is a purely sentimental and filial interest in the person of their mother. The language of the statut.es precludes the idea that it was meant to include one having a sentimental interest only in an estate. It is a familiar rule of statutory construction that where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase should be construed to refer to things of the same kind. [19 C. J. p. 1255.] An exception to this rule occurs where the specific clauses exhaust the class, so that the general word or phrase must be construed to have a meaning beyond the general class, or must be discarded altogether. [State v. Smith, 233 Mo. 242, l. c. 257.]

It is obvious that the specific words in this instance do not exhaust the general class of those having a pecuniary interest in the estate. An administrator has such an interest for example. [See In re McCune’s Admr., 76 Mo. 200, l. c. 205.]

We therefore conclude that the present is a proper case for the application of the rule of ejusdem generis (State v. Wade, 267 Mo. 249, l. c. 257), and that the general clause “other person having an interest in the estate” is properly construed as embracing only such other persons as have a pecuniary interest in the estate.

The precise question here involved is a novel one, apparently in this State. At least counsel cite no Missouri case which is directly in point, nor has our own independent research been more productive. The able and industrious counsel for relators have, however, called our attention to three cases from Massachusetts and to one from South Dakota. The persuasiveness of those cases rests largely, of course, upon the similarity of the statutes of those states, touching appeals from probate courts, to our own statute upon that topic. Turning to the .statutes involved we find that both in Massachusetts and in South Dakota an appeal is allowed to any “person aggrieved.” Such a statute leaves with the court a wide discretion in deciding who is aggrieved. Our statute limits the right to certain specified classes of persons, and beyond those classes we cannot go. Appeals are allowed in all cases except where expressly prohibited, but only such persons may appeal as are expressly authorized. This is the legislative rule. We cannot alter it. Relators’ appeal was properly dismissed.

If, as is alleged, the present guardian is guilty of waste or mismanagement, he and his sureties are liable upon the guardian’s bond, both to the ward during her lifetime and to her heirs upon her death.

The views herein announced are supported by an overwhelming weight of authority in other jurisdictions (3 C. J. p. 6239 and cases there cited), and also are in harmony with our previous rulings upon analogous cases. [Hopkins v. Cooper, 235 Mo. 461, l. c. 465; Dixon v. Hunter, 204 Mo. 383, l. c. 391; Kinealy v. Macklin, 67 Mo. 95, l. c. 99.]

The demurrer filed by respondent to tbe petition herein should be sustained and our alternative writ should be discharged.

It is so ordered.

All concur.