author: FARIS, J. GRAVES, J.

text:
    In re LETITIA TODD BRECK and BARBARA BRECK; LEWIS B. TEBBETTS, Petitioner, v. REBECCA RICKART and LLOYD H. RICKART.

      In Banc,
    July 10, 1913.
    1. HABEAS CORPUS: Certiorari as Ancillary: Return. In a certiorari proceeding, in aid of and ancillary to the writ of habeas corpus, no other return is called for or can he made, except the sending up of the record of the court called for by the certiorari writ, to be adjudged as to legality vet non by the showing on the face thereof.
    2.-: Former Adjudication: Not Pleaded. When a party to a habeas corpus writ, or a certiorari issued as ancillary thereto, has no opportunity to plead his defense of former adjudication, he may give it in evidence, under the general issue, and it will be as conclusive as if pleaded.
    3. -: Return: Controverted. A return to the writ of habeas corpus is not conclusive as to the facts stated therein, but its averments may be controverted, either by a reply or similar pleading, traversing or denying them, or by a pleading in the nature of confession and avoidance new facts may be set up to avoid the effects of the matter averred in the return.

      4. -: -: No Denial or Avoidance. If the averments of the return to a writ of ñateas corptts are not denied or contradicted by some appropriate pleading, the facts set out in the return are to be taken as true, regardless of the allegations pleaded in the petition; and the issue then becomes one of law, to be tried upon the case made, and no fact dehors the record will be considered.
    ®. -: -: Former Adjudication: Change in Situation. Where petitioner in hateas corpus does not deny the averment of former adjudication made in respondent’s return, but avers a change in situation since such adjudication, the burden is upon him to prove such change, the record revealing identity of names, and. the presumption arising of identity of persons from identity of names and of the continuation of a fact once shown to exist.
    <8. -■’ ' Res Adjudicata: Change in Situation. To one deprived of his liberty there is no limit by res adjudicata to the number of applications he may make for release by the writ of' hateas corpus, except the bare statutory one that successive applications must not be made to courts of inferior jurisdiction. But when the applicant has once been discharged by a court of competent jurisdiction, the doctrine of former, adjudication applies and is conclusive till the condition of the person whose liberty is in question Has changed.
    7. -: -: Appointment of Guardian: Adjudication by Circuit Court and Court of Appeals. Where petitioner, by his writ of certiorari issued out of the circuit court, sought to have quashed and annulled the action of the probate court in refusing to recognize him, named in the will of his daughter as the guardian o.f her children, as such temporary guardian, and appointing the respondent as guardian, and the circuit court Tefused to quash the'record of the probate, and thereupon he appealed to the Court of Appeals, which affirmed the judgment ■of the circuit court, said adjudication became final and con■clusive, and petitioner cannot by a writ of hateas corpus or by a writ of certiorari ancillary thereto, sued out of the Supreme ■Court, to recover the custody of the children from the guardian ■so appointed, have the validity of that order of the probate court further determined. The circuit court had full power to determine the legality of the appointment of respondent as' guardian, and the Court of Appeals had jurisdiction to determine the validity of the judgment of the circuit court.
    $. TESTAMENTARY GUARDIAN: No Acceptance Within Six Months: Appointment of Another. The statute providing that if the testamentary. guardian fails to notify the probate. court of his acceptance of the guardianship of the. minor children, •and to give bond, within six months after the probate of the will, the court may appoint a guardian as if no appointment had been made by the testator, is so far mandatory as to invest the probate court with a discretion to appoint a different person, just as if the will had nominated no one, where the testamentary guardian fails for six months to file such notice and acceptance.

      Held by GRAVES, X, with whom LAMM, C. X, and WOODSON, X, concur, that the circuit court having determined that the order of the probate court refusing to recognize the testamentary guardian and appointing respondent was valid, and that judgment having been affirmed by the Court of Appeals, the validity of that order is res adjudicata; but, were the point open for adjudication, he is of the opinion that when the testamentary guardian filed his acceptance of the trust with the probate court prior to any action having been taken to invoke the jurisdiction of the court in ■ the. appointment .of another and different guardian, such act deprived the probate court of any jurisdiction further than to fix a bond for the testamentary guardian and thereafter see that the trust imposed by the will was carried out..
    Habeas Corpus.
    Writ quashed.

      J. D. Johnson and Loomis C. Johnson for petitioner.
    (1) In certiorari, it is proper for a superior court to exercise its supervisory powers (1st) where the inferior court has acted without jurisdiction;.and (2nd) where, having jurisdiction, it has acted in excess thereof; or (3rd) where.it appears on the face of the record that the trial court rendered a judgment which it had no right in law to render. Railroad v. Board of Equalization, 64 Mo. 308; State ex rel. v. Neosho, 57 Mo. App. 198; Railroad v. Young, 96 Mo. 43; State ex rel. v. Moniteau Co. Ct., 45 Mo. App. 387; State v. Schneider, -47 Mo. App. 669; State ex rel. v. Reynolds, 190 Mo. 583. (2) The probate court being a court of limited jurisdiction, there are no intendments in favor of its jurisdiction and therefore no matters are to be beld within its jurisdiction except they expressly appear to be so. Ex parte 0'’Brien, 127 Mo. 1. c. 486; Eohland v. Eailroad, 89 Mo. 180; State v. Metzger, 26-Mo. 65. (3) And hence it is competent to attack the jurisdictional recitals in the judgment of such court. Ex parte O’Brien, 127 Mo. 491. (4) Eecitals of facts, contained in the petition for the writ of certiorari or in the writ itself, not controverted by the return, must be taken as admitted. State ex rel. v. Stephens, 146 Mo. 681; State ex rel. v. McDavid, 84 Mo. App. 47;. State ex rel. v. Moore, 84 Mo. App. 19. (5) The provisions of the statutes, insofar as they relate to the time in which bond shall be given by testamentary guardians, are directory merely and not mandatory. Secs. 408, 409, E. S. 1909; State ex rel. v. Lafayette-Co. Ct., 41 Mo. 554; State ex rel. v. Churchill, 41 Mo. 43; State ex rel. v. Howard Co. Ct., 41 Mo. 252; State ex rel. v. Texas Co. Ct., 44 Mo. 230. (6) If the statute-(section 409) is to be construed to provide that the-testamentary guardian shall notify the probate court, of his acceptance of the testamentary guardianship-within six months, then the same principle -applies, and such provision is directory merely. Sec. 409, B. S. 1909; cases cited under point one. (7) If the reason for a law fails, the law itself does not apply (cessamte ratio, cessat ipsa lex). Eussell v. Bussell, 122 Mo. 238; Schultz v. Sutter, 3 Mo. App. 141; Costigan v.. Tr. Co., 38 Mo. App. 225; Boyle v. Mo. Pac., 21. Mo.. App. 425; Smelting Co. v. Stevenson, 4 L. E. A. 62. Nor does the law require that a useless, or needless, thing be done. Lumber Co. v. Knight, 157 Mo. 379. The requirement as to the giving of bond by the testamentary guardian is for the purpose of protecting the-estate of the ward, coming in the hands of the guardian. Sec. 424, E. S. 1909; State ex rel. v. Tittman, 134 Mo. 162; State ex rel. v. Bolte, 72 Mo. 272; State ex rel. v. Weaver, 92 Mo 673. Hence, if, as here, the-guardian is possessed of no property belonging to tbe ward then there can be no property interest to be protected by a bond, and the reason for the application of the statute being absent the statute does not apply. (8) The statutes provide that the guardian shall give bond in twice the amount of the ward’s estate coming into his hands. Secs. 408 and 424, E. S. 1909. Applying these statutes to the case presented at bar, Tebbetts, the testamentary guardian, could have been required to give bond only for twice the amount of nothing or nothing — an absurdity. Lumber Co. v. Knight, 157 Mo. 379. (9) Under the terms of the will, Tebbetts was appointed guardian only of the persons of the minors and not of their estates. Whatever property the Breck children may have acquired from their mother passed not to Tebbetts as testamentary guardian, but to Tebbetts and DeCamp as trustees. (10) The record shows that the testamentary guardian notified the probate court of his acceptance of the guardianship and offered to give bond long before the probate court attempted to appoint a statutory guardian. Under the authorities cited under point 5, such acceptance and offer were binding on the court and constituted a sufficient compliance with the law by the testamentary guardian. Hence at the time the respondent attempted to appoint Eebecca Eickart, statutory guardian, relator Tebbetts was the lawful guardian of the Breck minors, and the probate court was without power to make the Eickart appointment without first revoking Tebbetts’ appointment under the will. Bass v. Putnam, 79 Mo. App. 274. (11) It is conceded that, if this court finds after a review of the record of the probate court in the certiorari proceeding herein that the order of the probate court appointing a statutory guardian was and is a valid order, the writ of habeas corpus should be quashed and the Breck minors remanded to the custody of Eebecca Eickart. (12) Assuming, but not conceding, that the plea of res adjudicata made by tbe respondent in ber return is, on tbe face of tbe record pleaded by ber, a good and sufficient plea, it is apparent that if this court in tbe certiorari proceedings bolds tbe order of Judge Holtcámp to be void, then a different state of facts immediately arises than upon which tbe judgment of tbe circuit court of tbe city of St. Louis in tbe habeas corpus proceedings there was predicated, and tbe respondent’s plea must, of necessity, therefore, fail. Howe v. State, 9 Mo. 482; Weir v. Morley, 99 Mo. 489.

      Frank X. Siemens for respondents.
    (1) Probate courts, have exclusive jurisdiction over tbe appointment of guardians of minors; our Constitution does not establish, but provides for, probate courts in each county and fixes a jurisdiction which cannot be taken away by the Legislature; hence probate courts possess general jurisdiction over particular subjects. Constitution, sec. 34, art. 6. (2) Every testamentary guardian must qualify under tbe statutes; failing so to do, tbe probate court may appoint another. Secs. 408 and 409, E. S-. 1909; Woerner on Guardianship, p. 58; Davidson v. Koehler, 76 Ind. 417; Wadsworth v. Connell, 104 Ill. 375. (3) Tbe right to a testamentary guardianship must be claimed within six months from tbe probate of the will or i.t is lost. Woerner on Guardianship, p. 58. (4) Testamentary guardians are governed like all other guardians and must comply with the law relating to general guardians. Sec. 408, E. S. 1909. . (5) Certiorari only brings up the record, and only such matters as appear from the face thereof and which go to the jurisdiction of the tribunal to which the writ is directed' can be reviewed by such writ. Ward v. Board of Equalization, 135 Mo. 319; State :ex rel. v. Patterson, 229 Mo. 369. (6) All guardians must give bond before entering • upon the duties of their office and guardians of the estate must give bond fin double the amount the value of the estate. See. 424, E. S. 1909. (7) All guardians must in some manner bring themselves under the jurisdiction of the probate court, by appointment, as general guardians, and by acceptance, as testamentary guardians and letters of guardianship must be issued to them. The probate court must be in a position at all times to exercise jurisdiction and general supervision over the person holding the office of guardian. (8) The appointment of a testamentary guardian by law is only the nomination of him for the office of guardian. It has no greater legal effect until the person nominated complies with the terms of Secs. 408 and 409, E. S. 1909. (9) If the probate court is satisfied that it will be for the advantage of minors to appoint a curator of the estate different from the guardian of the estate, it has power so to do. Sec. 413, E. S. 1909. (10) Eespondents are not required by law to keep a record of testamentary guardians who fail to accept and give bond as required by Secs. 408 and 409, E. S. 1909, hence it will be presumed on certiorari that respondent obeyed the law and would not have proceeded with the hearing if the testamentary guardian had accepted and given bond within six months after the probate of the will. State ex rel. v. Andrae, 216 Mo. 640. (11) Facts tending to show a judgment or order of a probate court void, for want of jurisdiction, should be found on the face of a record, otherwise regularity will be presumed. Desloge v. Tucker, 196 Mo. 601. ‘ ‘
   FARIS, J.

This is an original proceeding in habeas corpus by virtue of which the petitioner, Lewis B. Tebbetts, is seeking to obtain from respondents the custody of Letitia Todd Breck and Barbara Breck, who are minors, aged thirteen and twelve years, respectively.

Eespondents are husband and wife. They base, their right to the custody of the said Letitia and Bar"bara (hereafter for the sake of brevity called the “Breck children”) upon the fact that they were on the 11th day of March, 1912, appointed by the probate •court of the city of St. Lonis gnardian of the persons and curator of the estates, respectively, of said minors. Both parents of the Breck children are dead. The last survivor of these parents, Ellen M. Breck, their mother, died on the 15th day of December, 1905, testate, providing in her will as to her children, as follows:

“2d. I nominate and appoint my father, L. B. Tebbetts, gnardian of my said children, and hereby confer upon him all the rights, powers and authority, which a testamentary guardian is entitled to exercise under the laws of the State of Missouri. Should he fail to qualify and act as such guardian; or should he, for any cause, cease to act as such guardian, after qualifying as such, I nominate and appoint my brother-in-law, Arthur P. DeCamp, guardian of my said children.”

Petitioner Tebbetts, nominated in the will as testamentary gnardian, is the grandfather of the Breck children. Pie is also the father of Eebecca Eickart, and this action is, ergo, of that most regrettable genus, family fight.

By the will of Ellen M. Breck, petitioner Tebbetts and one Arthur P. DeCamp, the brother-in-law of decedent, were made executors thereof without bond. She also devised to them as trustees all of her property, to be held by them in trust for her three children. The will was duly probated by Tebbetts and DeCamp and they on the 16th day of January, 1906, duly qualified as executors thereof, and there was issued to them by the probate court letters testamentary. The estate, was administered to a final settlement, which was made on December 6, 1910, and being approved, Tebbetts and DeCamp were as executors ordered to pay over to themselves as trustees the bal-anee ascertained to be dne the estate, which they did and were discharged as executors. This final settle.ment, which was approved by the probate court, contained, among other items, pertinent or otherwise, this item of credit, to-wit:

“Oct. 13, 1908 — By cash disbursed from time to-time to Lewis B. Tebbetts and Arthur P. DeCamp, trustees under the will of Ellen M. Breck, deceased, for part of the proper education, support and maintenance of the minor beneficiaries, Lewis Tebbetts Breck, Letitia Breck and Barbara Breck, since December 15, 1905, the date of the death of the deceased, $6642.65.”'

Petitioner Tebbetts after the death of the mother of the three Breck children, took the latter immediately into his home, and housed them, fed, clothed and schooled them till they were taken-from his custody by virtue of a writ of habeas corpus issued by one of the judges of the circuit court of the city of St. Louis. But Tebbetts did not for almost six years after the death of the mother of the Breck children, and after the probate of the will nominating him as testamentary guardian of said children, “notify the probate court of his acceptance of the guardianship,” nor give bond, that is to say, not till September 6, 1911, at the hour of 12:30 p. m., at which time he filed with the probate judge in vacation a document reading thus, which he designates as an acceptance, to-wit:

To the Hon. Charles W. Holtcamp,
Judge of the Prohate Court, City of St. Louis:
The petition of the. undersigned Lewis B. Tebhetts, respectfully represents that he is a resident of the city of St. Louis, aforesaid, and is the grandfather of Lewis T. Breck, aged 14 years and 6 months; Letitia Breek, aged 12 years and 6 months; Barbara Breck, aged 11 years and no months; all of which minors reside in the city of St. Louis, Missouri; that said minors own no property and that under the terms of the will of Ellen M. Breck, deceased1, duly probated, he was nominated and appointed guardian of said minors. 1
Wherefore he prays that he may be appointed guardian of the persons of said minors in accordance with said last will of Ellen M. Breck, mother of said minors, not having been adjudged unfit for the duties of guardianship of said minors, the other lawful parent of said minors being dead at the time, and the applicant hereby notifies the probate court or judge thereof in vacation of his acceptance of the guardianship.
Lewis B. Tebbetts.

Thirty minutes later, on the same day,, respondent Lloyd H. Rickart filed his application with the said probate court praying the court to appoint a statutory or “general guardian” for these minors, to quote literally the prayer of the application. This application is as follows:

■In re Testamentary Guardianship of Tebbetts Breck,
Letitia Breck and Barbara Breck, minors.
Comes now Lloyd H. Rickart, and represents to the court that, the minors above named are children of Ellen M. Breck, deceased, who departed this life on the 15th day of December, 1905, testate, and in and by her last will, duly proved and probated on the 16th day of January, 1906, devised all her property, real and personal, to Lewis B. Tebbetts and Arthur P. DeCamp, in trust for the sole use and benefit of the minors above named, and further in and by said will appointed and nominated Lewis B. Tebbetts guardian of her said children and in the event of his failure, refusal or inability to act, did appoint and nominate Arthur P. DeCamp as his successor.
Your petitioner further presents that neither the original testamentary guardian, Lewis B. Tebbetts, or his successor in said will provided,. Arthur P. DeCamp, has at any time since the probating of the will of Ellen M. Breck, accepted said testamentary guardianship, nor has either of them given bond for the faithful performance of the same.
Your petitioner further represents that the natural parents of the above minors are dead.
Your petitioner further represents that Lewis B. Tebbetts is insolvent, a bankrupt in bankruptcy, and that his successor, Arthur P. DeCamp, is insolvent.
Your petitioner further represents that Tebbetts Breck is of the age of fourteen years; Letitia Breck of the age of twelve years and Barbara Breck of the age of eleven years; that Tebbetts Breck now resides with your petitioner in the city of St. Louis, Missouri, and that Letitia Breck and- Barbara Breck now reside' with their maternal aunt, Alice DeCamp, in the city of St. Louis, Missouri; that the testamentary guardian and his successor nominated in the will of Ellen M. Breck are likewise trustees of the estate of the said minors, and, if allowed to qualify as the guardians of the person and estate, while acting as trustees of the estate, they will be in the anomalous position of accounting with themselves in two separate capacities.
Your petitioner further presents that while the said Lewis B. Tebbetts and Arthur DeCamp were administering the estate of Ellen M. Breck, as the executors thereof, they failed to promptly make their settlements and numerous citations and attachments to settle were issued against them, and administration was commenced on the 10th day of December, 1905, and not completed until the 14th day of December, 1910, without any good reason for the delay.
Wherefore, the premises considered, it has become apparent that the minors above named are without a general guardian; that the testamentary guardian and his successor are not proper persons to likewise act as general guardians by reason of the fact that they are likewise testamentary trustees and are likewise insolvent and it has become necessary that a general guardian of the person and estate of said minors be appointed, and your petitioner prays this honorable court to appoint some suitable solvent person, the guardian of the persons and estates of the minors above named.

One of the three Breck children, Lewis Tebbetts Breck (who is not embraced in the application herein), having in the meantime reached the age of fourteen years, respondent Lloyd IT. Rickart, on December 8, 1911, put on foot such proceedings by a so-called amended application, as caused the court to cite Lewis Tebbetts Breck to appear and select a guardian, which the latter did, and respondent Lloyd IT. Rickart was appointed as such guardian on December 21, 1911. The contents of this amended application are not necessarily pertinent, beyond the fact that one clause thereof makes this recital, to-wit:

Your informant further presents that the original testamentary guardian, Lewis B. Tebbetts, did not, until long after the probate of the will of Ellen M. Breck, to-wit, sometime in the year 1911, accept said testamentary guardianship in writing, nor has he at any time given bond for the faithful performance of his duties as such testamentary guardian, nor has his successor, Arthur P. DeCamp, in said will nominated, accepted the office of testamentary guardian at any time, nor has he at any time given bond as such, for the faithful performance of the ■duties of said office.

Following the filing of the amended application of Lloyd H. Rickart, which prayed that Rebecca Rickart he appointed guardian of the Breck children, hearings were had hy the probate court from time to time, which hearings appear to have occupied many days, hut the nature of which investigation, its range and volume, since we have before us but the bare record, is not disclosed. Pending these many hearings, and on January 6, 1912, petitioner Tebbetts filed an amended application and acceptance of guardianship, in which he again not only averred his willingness to accept the nomination conferred by the will, but averred his willingness “to give such bond and security as may be required by the court.”

Upon the fifing of the amended acceptance above referred to, the probate court made the following order :

Now again come Lloyd H. Rickart and Lewis B. Tebbetts. the parties herein in person and by their respective attorneys, and the said Lewis B. Tebbetts, by leave of court presents an amended application for his appointment as testamentary guardian of the persons and estate of Lewis Tebbetts Breck, Letitia Breck and Barbara Breck, minors, and also a written acceptance of the testamentary guardianship of said minors in accordance with the will of their mother, Ellen M. Breck, deceased, and thereupon the trial of this cause progressed, but not being concluded the same is laid over until the 8th day of January, 1912, at ten o’clock a. n?

Hearings on the matter proceeded from time to time, and to quote the record, “the trial progressed,” till January 4, 1912, when the hearings were finally concluded and the matter taken by the probate court under advisement till March 11, 1912, when the following order was made by the court: ■

Now, at this day, the court being fully advised of and' concerning the applications of Lloyd H. Rickart, Lewis B. Tebbetts and Daniel Breck, for appointment of a guardian of the persons of said Lewis Tebbetts Breck, Letitia Breck and Barbara Breck, minors, heretofore, to-wit, on the 9th of January, 1912, submitted and taken under advisement, doth find that the petitioner, Lewis B. Tebbetts, did not, in any manner notify this court of his acceptance of the testamentary guardianship of said minors, according to sections 408-409 of the Revised Statutes of Missouri, of 1909, and the provisions of the last will of their mother, Ellen M. Breck, deceased, nor give bond and security as such- guardian within six months after the probate of the will of said Ellen M. Breck, in this court, on January 16, 1906, and the court doth further find that by reason thereof, on the 6th day of September, 1911, the time of filing of the original petition for appointment of a guardian, said minors were in law, without a legal guardian, and this court had jurisdiction to hear petitions of the parties herein and their applications for appointment, and had jurisdiction to appoint a guardian for said minors, and it further appearing that said Lewis Teb-betts Breck is a minor over the age of fourteen years and that he has heretofore chosen Rebecca Rickart as guardian of his person; that said Letitia Breck and Barbara Breck are minors, each under the age of fourteen years; that the parents of said minors Robert Breck and Ellen M. Breck are both dead; that the mot her was the surviving parent' and was at the time of her death, a resident of the city of St. Louis, State of Missouri; that the said Rebecca Rickart is the most suitable person for the guardianship of the persons of said minors and that it would be for the best interest and welfare of said minors that said Rebecca Rickart be appointed guardian of their persons, it is therefore ordered by the court that the petitions of said Lewis B. Tebbetts and Daniel Breck, be and the same are hereby denied, and that the said Rebecca Rickart be and' she is hereby appointed guardian of the persons of said Lewis Tebbetts Breck, Letitia Breck and Barbara Breck, minors, and that she give bond, as such guardian, in the sum of five hundred dollars, which bond being now tendered by said Rebecca Rickart, is approved.

As ancillary to and in aid of this proceeding in "habeas corpus, petitioner, as relator, on the same day at which he here began this suit, began also, an action in this court in certiorari, which action is No. 17482 on our docket and is styled “State of Missouri ex rel. Lewis B. Tebbetts, Relator, v. Chas. W. Holtcamp, Judge of the Probate Court of the City of St. Louis, and G-eorge Brand,. Clerk of the Probate Court of the City of St. Louis, Respondents” [post, p. 333.], the object of the certiorari suit being to bring up to this court the entire record of the probate court of the city of St. Louis haying reference'to the matter of contested guardianship, so that we may determine the right action and legality vel non lof such court in the premises, and that we may, if such court exceeded its powers and jurisdiction quash its order and judgment. The two cases were heard together and must for clearness’ sake he considered together, for both sides to this suit concede that if the order made by the probate court appointing respondents as guardian of the persons and curator of the estates of the Breck children, and refusing to appoint or confirm as such guardian the- relator, is lawful and valid, then the writ issued herein must be quashed and the Breck children remanded to the custody of the respondents.

In the certiorari proceeding no return beyond a certification of a full, true and correct transcript of the papers, orders and files of the probate court, was made.

In the matter of the writ of habeas corpus, respondent Rebecca Rickart, after admitting custody of the persons of the Breck children and admitting the salient facts and history of the case as we have set them out, pleads res adjudicata to all of it, referring for proof thereof to certain orders made by the circuit court of the city of St. Louis in a habeas corpus case in that court, as also to a certain proceeding in an action in certiorari, had in the circuit court of the city of St. Louis, and on appeal, in the St. Louis Court of Appeals. Of these proceedings and of all of them, respondent Rebecca Rickart attaches to her return full and complete certified copies as exhibits, and they show, if any verity is to be attached to them whatever, that the precise point here involved in the certiorari suit, between the identical parties, about the identical ‘ ‘ subject-matter,” was brought in the circuit court of the city of St. Louis, there decided adversely to the contentions of the petitioner herein (who was relator therein, as he is also relator here in the certiorari suit); that he appealed to the St. Louis Court of Appeals where the judgment of the circuit court sustaining in all ways the order and action of the probate-court on the decisive point here in issue, was in all things affirmed. [The case in certiorari is before us,, being reported under the style of State ex rel. Tebbetts v. Holtcamp et al., post, p. 333.] This return avers and the appended exhibits of certified copies show, and Tebbetts, as relator in the certiorari proceeding admits, that in a habeas corpus proceeding-brought on behalf of the Breck children by Rebecca Rickart against Tebbetts, petitioner herein and others-in the circuit court of the city of St. Louis, respondent Rebecca Rickart was awarded the custody of these children. In that habeas corpus proceeding the facts and legal reasons urged by Rebecca Rickart for custody of these children, as well as the facts and legal reasons urged by Rebecca Rickart for custody of these children, as well as the facts and legal reasons urged by petitioner Tebbetts, contra, are substantially in all ways, as in the case at bar. The differences, if any, are merely in verbiage.

Respondent Lloyd II. Rickart makes return that he is curator of the estates of the Breck children, and is so acting by virtue of the order of the probate court, quoted herein, so appointing him; that he has personally no custody or restraint over the Breck children, though they are in his house, in the care and custody solely of his wife, respondent also herein, who, he avers, assumes to hold them by virtue of her appointment as the guardian of their persons by the.probate court. Just here we may say that although respondent Lloyd H. Rickart has been appointed curator of the estate of the Breck children, no point is made in this whole case on this. The custody, or guardianship, of their persons is all that is in question here; (it may be all that could be questioned here) since petitioner, as the record shows, specifically disclaimed any other purpose or issue, in the probate court.

Petitioner Tebbetts by bis reply to respondents’ returns, which .reply he verifies by his oath, among ■other things, referring to the pleas of' res adjudicata set out in the return of Rebecca Rickart, says that he '“denies that the situation of the said minors and. of the parties hereto has not changed since the adjudication herein, and denies that the matters of inquiry in this proceeding are the same as have heretofore been adjudicated as in said return set forth.” The learned ■counsel for petitioner on this phase of the case says in his brief:

“Assuming, but not conceding, that the plea of res adjudicata made by the respondent in her return is, on the face of the record pleaded by her, -a good and sufficient plea, it is apparent that if this court-in the certiorari proceedings holds the order of Judge ITolt-camp to be void, then a different state of facts immediately arises than that upon which the. judgment of the circuit court of the city of St. Louis in the habeas corpus proceedings there, was predicated.”

The contention upon the point of res adjudicata thus foreshadowed and the question of right and proper action of the probate court in refusing to permit Tebbetts to qualify as testamentary guardian are the two questions which are to the fore, the one of which in one view, and both of which in any view, are decisive of this case.

The above facts should render comprehensible the ■opinion subjoined.

I. “It is conceded,” says learned counsel for petitioner in his brief, “that if this court finds, after a retiew of the record of the probate court in the certiorari proceeding here- . . . x ° in that the order of the probate court appointing a statutory guardian was and is a valid order, the writ of habeas corpus should be quashed and the Breck minors remanded to the custody of Rebecca Rickart.”

With this View we agree, but it is also true that if for any good and lawful reason we shall find ourselves precluded from an examination of this question as to whether the probate court on this point ruled rightly, the same result to petitioner would inevitably follow.

Rebecca Rickart in her return pleads res ad judi-cata as to the issues herein, as well as to the precise point in issue in the proceeding in certiorari, here invoked as ancillary and in aid of this writ, and also in aid, as she avers, of a former writ of hateas corpus brought and adjudged in the St. Louis Circuit Court.

Clearly there was neither opportunity in law nor incentive growing out of interest to raise the question of former adjudication in the certiorari proceeding. The duty of the judge and the clerk of the probate court was in the premises confined to sending up the record called for by our writ, here to be adjudged as to legality ve\non by the showing upon the face thereof. [State ex rel. v. Patterson, 229 Mo. 364.] This duty they performed without comment. In a proceeding in aid of hateas corpus no other return is called for or can be made. [Ex parte Lange, 18 Wall. (U. S.) 163.] As to whether former adjudication must be pleaded to be a good plea, or whether it may be given in evidence under the general issue, the courts are divided._ Our courts in this State by the great weight of authority incline strongly to the latter view that the defense is a matter of evidence.. [Garton v. Botts, 73 Mo. 274; Connecticut Ins. Co. v. Smith, 117 Mo. 1. c. 297; Offutt v. John, 8 Mo. 120.] But we need not'quibble as to this, since the cases are'unanimous that when a party has no-opportunity to plead his defense of former adjudication he may give it in evidence, under the general issue, and it will be as conclusive as if pleaded. [9 Ency.. Pl. & Pr. 618.] Thus stands the case at bar. Respondents were not parties to the proceeding in cer-tiorari. They made return to the writ of habeas corpus issued herein, raising the points of former adjudication, which question and matter of defense unless it he or has been traversed by reply, will be taken as true and considered by applying the law of the case to it, as to a fact conceded.

At common law as a rule the return to the writ of habeas corpus was conclusive as to the facts stated therein and the averments could not be controverted. [9 Ency. Pl. & Pr. 1039.] But the well-recognized and almost universal doctrine now is to the contrary. The averments of the return may he, by reply or similar pleading, traversed or denied (In re Mason, 8 Mich. 70; Ex. parte Durbin, 102 Mo. 100); or by pleading in the nature of confession and avoidance, new facts may be set'up to avoid the effect of the matter averred in the return. [9 Ency. Pl. & Pr. 1052.] This is so in our own State by statutory enactment. [Sec. 2468, R. S. 1909.] When an issue is made by a denial, or traverse by reply to the facts averred in the return, the matter stands then like any other issue to be adjudged and determined by the evidence upon a trial, or hearing had. [Speer v. Davis, 38 Ind. 271.] If the averments of the return are not denied or contradicted by some appropriate pleading, the facts set out in the return are to be taken as true, regardless of the allegations pleaded in the petition. [Ex parte Durbin, 102 Mo. 100; Ex parte Bryan, 76 Mo. 253.] The issue then becomes one of law simply which must be tried upon the case made, and no fact dehors the record will be considered. [9 Ency. Pl. & Pr., 1052.] We do not understand that petitioner by his reply to the return has denied the fact of former adjudication, but to the allegation in the return that the “situation of ■the parties has not changed” since the alleged adjudication, petitioner “denies that it has not changed,’* thus negatively, in a sense, averring that such sitúation has changed, hut in no sense denying the fact of adjudication, but merely the identity thereof. He also in substance avers that certain matters were adjudicated, but that they were not the same matters which are before us. It would seem as to a situation or condition the existence of which at a time is admitted, the burden is upon him who asserts a change to prove such change. That upon the question of identity of adjudication the fact or existence of' an adjudication being pleaded, and in effect admitted, we may in the absence of any proof-, both records and the reported case being before us, determine by inspection where the truth is. To these views we are partially induced and persuasively drawn by the presumption of identity of person arising from identity of name (State v. McGuire, 87 Mo. 642; Geer v. Lumber Co., 134 Mo. 85); and from the presumption of the continuance to exist of-a fact once shown to exist (life and other well-known self-limited ephemeral phenomena, being excluded). [2 Chamberlayne, Mod. Law of Ev. 1030; Viertel v. Viertel, 212 Mo. 1. c. 570.]

To one deprived of his liberty there is no limit by res adjudicatco, or by any other doctrine, to the number of applications which he may make for release by the writ of habeas corpus, except the bare statutory one ,(Sec. 2442, R. S. succesive applications must not be made to courts of inferior jurisdiction. [In re Clark, 208 Mo. 1. c. 142; Weir v. Marley, 99 Mo. 1. c. 488; Ex parte Jilz, 64 Mo. 205.] But when liberty, or the desired status in contest, has been once attained, then the doctrine of former adjudication applies and is conclusive till the condition or situation of the person or persons whose liberty or status is in question has changed. [In re Clark, 208 Mo. 1. c. 142; Weir v. Marley, 99 Mo. 1. c. 488; Ex parte Jilz, 64 Mo. 205; Cormack v. Marshall, 211 Ill. 519.]

In the case of Weir v. Marley, supra, 1. c. 489, the rule above suggested is well stated by Brace, J., who, further proceeding, says that the rule applies in a case such as the instant one where- the custody of infants is the bone of contention, as note his words:

“From these cases may be deduced the doctrine that the principle of res adjudicata does not apply in cases of hateas corpus to judgments remanding the prisoner, or to judgments discharging the prisoner, where a new state of facts, warranting his restraint, is shown to exist- different from that which existed at the time the first judgment was rendered. That it does apply to a judgment discharging the prisoner, where no such new state of facts is shown, may as readily be deduced from the case Ex parte Jilz, 64 Mo. 205. The distinction thus made between judgments remanding, and those discharging the prisoner, grows out of the nature of the writ whose raison d’etre is the protection of personal liberty.
“It loses nóné of its characteristics when used for the purposes of obtaining the custody of children, and the same analogies ought to obtain in such cases as when used simply for the purpose of discharging á prisoner from illegal restraint. If this be so, then the judgment óf a court or officer of competent jurisdiction, 'discharging the infant in this case from the custody of the petitioners on the ninth day of September, 1889, on writ of hateas corpus, ought to be a complete answer to their petition, presented on the same day to another court or officer of like jurisdiction, for a like writ to recover that custody from the same person to whom it was awarded, setting out the same grounds for such recovery in their petition as was set up in their return to the former writ — and this conclusion would not be inconsistent with the actual rulings in the cases cited from this State, or the nature of the writ, and would be sustained by authority elsewhere. [Mercein v. People, 25 Wendell, 64; People v. Mercein, 3 Hill, 399; People ex rel. Lawrence v. John R. Brady et al., 56 N. Y. 182; Com. v. McBride, 2 Brewster, 545; In re Da Costa, 1 Parker's Crim. Cases, 129; Brooke v. Logan, 112 Ind. 183; Spalding v. People, 7 Hill, 301; People v. Burtnett, 5 Parker’s Crim. Cases, 113; McConologue’s Case, 107 Mass. 154; Freeman on Judgments (3 Ed.), sec. 324; Church on Habeas Corpus, secs. 386 and 387.] ”

Upon the facts as we have with care and muck pains set them out, it is clear that neither the status of the Breck children themselves nor that of petitioner Tebbetts, nor of Rebecca Rickart has changed. An inspection of the record and a comparison of the two records disclose this clearly. But we need not critically weigh whether this be true. The learned counsel for petitioner concedes it with commendable frankness, unless upon a re-examination of the record in the ancillary suit in certiorari, we should, find that the probate court was in error in refusing to permit petitioner to qualify as testamentary guardian of the Breck children and in appointing Rebecca Rickart as guardian of their persons. The point then being whether the status of the Breck children has changed since the last adjudication of that precise question, and this point being conclusively determined by the further point of whether the probate court properly held it, we are of necessity brought again to examine the validity of the probate court’s record as brought to us by certiorari. Not only to rule the point must we again examine it, but in addition we must hold that the conclusion reached by the probate court was wrong. Reserving the latter point and laying it out of the case for future discussion, let us see whether we can reach it upon the record here to rule it at all. The record before us, as well as the printed report of the case of “State ex rel. Tebbetts v. Holtcamp et al.,” shows that the precise point was brought by the relator in the certiorari case (here being considered with this instant case of habeas corpus) before the circnit conrt of the city of St. Louis; that it was there ruled against relator; that he appealed to the St. Louis Conrt of Appeals where the judgment of the circuit court was affirmed. [State ex rel. Tebbetts v. Holtcamp et al., 168 Mo. App. 402.] In that action, as in the certiorari branch of this case, here, it was sought to have the circnit conrt quash and annul the action of the probate conrt in this identical proceeding.- The. circnit court refused to do so; an appeal was taken and the St. Louis Court of Appeals likewise refused to order the probate court’s action to be quashed. The same final result or judgment was sought in the same sort of proceeding about the same matter and between the same parties. The certiorari suit brought in the circuit court ended in the Court of Appeals. A new original proceeding in certiorari to quash the «order of the probate court was commenced here. The relief prayed for in the action in the circnit court was that the circuit court “determine the legality of all proceedings made in said cause in said probate court.” Here, we are asked in the certiorari case to “determine after being thereunto duly advised, whether the said judge of the probate court acted within his jurisdiction in appointing said Rebecca Rickart as statutory guardian.” Both results sought, then, it will be seen, are identical in effect in their last analysis.

The circuit court had jurisdiction to examine into and determine the legality of the action of the probate conrt. [Sec. 23, art. 6, Constitution; St. Louis Co. Ct. v. Sparks, 10 Mo. 117; Carter v. Exposition Co., 124 Mo. App. 530.] Certiorari cannot be used in ordinary cases as a substitute for an appeal or a writ of error (State ex rel. v. Reynolds, 190 Mo. 578; Fry v. Armstrong, 109 Mo. App. 482), though it will lie to bring up a record, where no appeal or writ of error lies. [In re Clark, 208 Mo. 121.] Having such jurisdiction we are not able to see why its action when subsequently affirmed by the Court of Appeals is-not conclusive on petitioner and relator here. [Fiene v. Kirchoff, 176 Mo. 1. c. 525; Hope v. Blair, 105 Mo. 1. c. 93; 23 Cyc. 1215.] The general rule may be thus stated:

<£A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment therein, so far as.concerns the parties to-that action and persons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same court or in any other court of concurrent jurisdiction, upon the same or a different cause of action.” [23 Cyc., 1215.]

“A former judgment between the same parties is a bar to the maintenance of the second action only when the causes of action in the two suits.are identical. -But it will be conclusive and final as to any issue litigated and determined in the former suit, and coming again in question in the second suit, although the latter is brought upon an entirely different cause of action.” [23 Cyc. 1216, citing Harlow v. Bartlett, 170 Mass. 584; Lindsey v. Danville, 46 Vt. 144; Spencer v. Dearth, 43 Vt. 98.]

Coming down to the very point in issue a well-known text-writer thus states the rule:

“The appointment or removal of a guardian or administrator, or the adjudication of a question of descent or pedigree, is conclusive, not only in the proceeding in which they may take place, but in every other 'in which the same matter is agitated. The manner in which the question is actually brought before the court is immaterial, as long as it is actually decided; whether the action of the court is formal or summary on motion makes no difference in the conclusiveness of the judgment if, as it is presumed, until it is otherwise proven, there was an opportunity to appear and contest the case on its merits; and hence, an adjudication nnder a rnle to show cause will preclude a renewal of the controversy at law, or even an application for relief in equity.” [Herman on Estop-pel, p. 136.]

Our own court speaking generally of this doctrine, in the case of Hope v. Blair, 105 Mo. 1 .c. 93, said:

“When the court' has cognizance of the controversy, as it appears from the pleadings, and has the parties before it, then the judgment or order, which is authorized by the pleadings, however erroneous, irregular or informal it may he, is valid until set aside or reversed upon appeal or writ of error. This doctrine is founded upon reason and the ‘soundest principles of public policy.’ ‘It is one,’ says the court of Virginia, ‘which has been adopted in the interest of the peace of society, and the permanent security of titles. If, after the rendition of a judgment by a court of competent jurisdiction, and after the period has elapsed when it becomes irreversible for error, another court may in another suit inquire into the irregularities or errors in such judgment, there would be no end to litigation and no fixed established rights.’ - [Lancaster v. Wilson, 27 Gratt. 624; see, also, Adams v. Cowles,. 95 Mo. 506; Rosenheim v. Hartsock, 90 Mo. 365; Morris v. Gentry, 89 N. C. 248; Porter v. Gile, 47 Vt. 620; Paul v. Smith, 82 Ky. 451; 1 Black on Judg., sec. 245.]”

In a later case (Fiene v. Kirchoff, supra) Marshall, J., quoting with approval from 21 Am. & Eng. Ency. Law, 134, thus states the applicability and continuance of the rule:

“ ‘The doctrine of res ad judicata applies so long as the issue is between the same parties, and whether they continue, respectively, as plaintiffs' and defendants, or reverse their positions, is not material. They must, however, have'been and continue to be adversary parties. But when issues between various defendants are actually decided by the court they become res adjudicaba, the same as if they arose between opposing parties.’ [21 Am. & Eng. Ency. of Law (1 Ed.), p. 134.]”

By the Constitution the Supreme Court is given “a general superintending control over all inferior courts,” with power to “issue writs of . . . certiorari and other original remedial writs, and to bear and determine the same.” [Constitution of Missouri, sec. 3, art. 6.] Likewise by the Constitution circuit courts are empowered to “exercise a superintending control over criminal courts, probate courts . . . and all inferior tribunals in each county in their respective circuits.” [Constitution of Missouri, sec. 23, art. 6; Owens v. Andrew County Court, 49 Mo. 375; State ex rel. v. Walbridge, 116 Mo. 656; State ex rel. v. County Court, 64 Mo. 170.] So far as this superintending control is directed by the circuit court toward a court having jurisdiction inferior to such circuit court, the jurisdiction of the latter court in such case is concurrent with that of the Supreme Court. That in a proper case our jurisdiction as to the same action may also be appellate, does not militate against this view. the tendency of the ruling of the Supreme Court has been in such cases to compel resort to the circuit court “until a case of far more than ordinary magnitude and importance induces a departure from our general rule.” [State ex rel. v. County Court, 64 Mo. 170.]

Petitioner saw fit to invoke the superintending control of the circuit court — a court having full and ample power to examine into and to determine the legality of the action of the probate court of the city of St. Louis, in the matter now before us, i. e., as to whether the probate court acted legally in refusing to confirm Tebbetts as testamentary guardian and in appointing Rebecca Rickart as statutory guardian — being cast, be appealed to the St. Louis Court of Appeals, a forum also having jurisdiction, where again the holding is adverse to him on the point involved. May he again raise it here in an original proceeding, not in review of the action of the circuit court, or of the St. Louis Court of Appeals? We think not. We may not by any original process allowed by law or by the Constitution, by which we exercise the Constitution-conferred power of superintending control, make an inferior court adjudge cases as we might adjudge them, when it stays within its jurisdiction, and where we have not passed on the point. Courts inferior to this have the inherent, if not the Heaven-born power to make errors in judgment and discretion. [State ex rel. Brown v. Broaddus, 216 Mo. 336.] These errors we can correct only by appeal or by writ of error; we cannot if we have not blazed the way and they have refused to follow, control them by mandamus, certio-rari or prohibition, when they are lawfully pursuing their jurisdiction. The point has been ruled by this court in the case of State ex rel. v. Walbridge, 123 Mo. 1. c. 532, by Macfarlane, J., in which he says:

“Whatever may be the power of the superior court, according to the rules of the common law, to keep its hand upon those over which it has supervisory control, and guide them in each of their rulings in the progress of the cause, this court has ever refused, by writs of mandamus, prohibition or certiorari, to exercise it; but, when the court or tribunal has jurisdiction to proceed correctly, the right' to commit errors, and the opportunity to make corrections themselves has never been denied. [State ex rel. v. Court of Appeals, 99 Mo. 221; State ex rel. v. Burckhartt, 87 Mo. 533; State ex rel. v. Smith, 104 Mo. 419; State ex rel. v. Withrow, 108 Mo. 1; State ex rel. v. Edwards, 104 Mo. 125.]

“The circuit courts of the State are, under the Constitution and laws of the State, possessed of original common law jurisdiction, and have inherent authority, in all proper cases, to issue the writ of cer-tiorari. This authority has ever been recognized, and, so far as we find, has never been questioned. [State ex rel. v. Dowling, 50 Mo. 134; State ex rel. v. City of Kansas, 89 Mo. 37; Owens v. Andrew Co., 49 Mo. 375; State ex rel. v. Walbridge, 116 Mo. 656.]”

We conclude that the fact of former adjudication by a court of competent jurisdiction precludes us from again examining these questions, both in -the instant case and upon the certiorari case ancillary hereto.. [State v. Water Commissioners of Jersey City, 30 N. J. L. 247; State v. Bich, 58 N. J. L. 507; Broder v. Mono County Court, 33 Pac. 630; Olcese v. Justice’s Court, 156 Cal. 82; Sampson v. Commissioners, 115 Ill. App. 443.]

II. This conclusion renders unnecessary the expression of any opinion upon the question of the com rectness of the action of the probate court in refusing to permit petitioner Tefrbetts to qualify as. testamentary guardian. But in , . ., , . -, , ,, passing, since the point urged is or some importance, we may well look at the law qn the point and the facts,- and see who hath the right of it. The statute, the meaning of which is in dispute, reads thus:

“Sec. 409. If any testamentary guardian shall fail to notify the probaté court, or judge thereof in vacation, of its acceptance of the guardianship, and give bond and security within six months after the probate of the will, the court, or judge in vacation, may appoint a guardian, as if no appointment had been made by the testator.”

The cold question, stripped of all extrinsic defenses is: Whether the failure of one nominated as testamentary guardian to “.notify the probate court of his acceptance within six months,” ipso facto voids the testamentary appointment and leaves the minors g,s wards of tbe court, to be disposed of by tbe court sua sponte, even tbougb sucb testamentary nominee becomes by bis acts tbe de facto guardian of tbeir persons and property.

The facts in this case show that the petitioner Tebbetts took the Breck children into bis care and custody following the death of their mother and at once, upon bis nomination by her will as their testamentary guardian; that be expended over six thousand six hundred dollars of their money; that he cared for them continuously till they were taken from bis custody by a writ of habeas corpus, issued on the 12th day of March, 1912, and finally decided adverse to bis contentions on the 24th day of February, 1913. So, without notifying the probate court of bis acceptance, and without filing bond and security within six months of the probate of the will, Tebbetts took upon himself all of the duties, care and custody of an actual guardian of the Breck children, and so acted as such guardian de facto from January 16, 1905, till September 6, 1911, at which time he filed in vacation with the probate judge the written acceptance set out in the statement, and prayed that he be appointed guardian of the persons of said minors. Thirty minutes - thereafter Lloyd H. Rickart, one of the respondents herein, filed bis application to have a guardian appointed. No appointment of. any person as such guardian was made till February 3 1912, when in vacation of the probate court, after the lengthy- hearing above referred to, Lloyd H. Rickart was appointed curator of their estates, and on March 11, 1912, Rebecca Rickart was appointed guardian of their persons by the said court.

When no act in pais is done by the testamentary guardian nominated by the will, evidencing acceptance of the guardianship, then clearly the welfare of the child, the necessity of housing, clothing,'feeding and-caring for him, requires that the section of the statute under discussion should be construed as mandatory. Ordinarily the conservation of the property of a minor would require that a strict construction of this statutory requirement be had, because, even if the infant be housed, clothed, fed and schooled, his property ought to be looked after and preserved by some one answerable to a court of competent jurisdiction by a good' and sufficient security for the safety of such property.

The guardianship sought to be conferred here being conferred by general words was a general guardianship, i. e., both a guardianship of the persons and a curatorship of. the estates of the Breck children. [In re Grimes, 79 Mo. App. 274.] Petitioner, acting in a sense as guardian by his. own wrong, spent more than six thousand dollars of the money of these minors without giving bond for it, and without accounting in anywise to any court for the manner of its disbursement. Whether he spent this money wisely or unwisely, honestly for their sole behoof, or otherwise, we do not know and obviously can never know, neither can the probate court know, nor can the probate court enforce against any bond known to the law given or to be given,-any penalty for an unwise or a dishonest spending. The wisdom of the lawmakers may have led them to enact this provision in order to prevent this condition, as well as for the reasons we have just pointed out; the one looking to the personal and bodily welfare of the minor, and the other toward the safety and conservation of his property. Surely six. months is long enough for an infant, perhaps of tender years, to subsist without some one standing toward him w loco parentis, having him under care and protection, and it is long enough time to permit the property of a' minor to be handled by one, perhaps insolvent, and not answerable to a superintending court of competent jurisdiction, by a solvent bond for the safe-keeping thereof. Likewise, it -is long enough to let the minor’s property lie wholly without care. To convict the probate court of error in the case at bar, simply because the instant case is in a sense sui generis, and because being so, there are strong pleading equities excusing Tebbett’s delay, and because it may be that no one was hurt by this delay, would make necessary the enunciation of a general rule, which,.for the reasons we point out, would not fail to work hardships either upon the person or the property of a minor. When a delay beyond six months in complying with the provisions of said section 409 has occurred, we think the matter of appointing a guardian should be relegated to the sound discretion of the probate court. That the wishes of the testator should be strongly persuasive, we feel no doubt; that the court should give preference in appointing to the nominee in the will (other things being equal, absent recalcitration on the guardian’s part, and absent harm and neglect of the person, or property of the minor), we concede; but for the neglect of the testamentary guardian to comply with the law, he should be penalized by being compelled to stand in the discretion of the court upon an equality with others. We ought not to lay hands of violence upon this statute, when we consider the ills that might flow to the person of an infant, or to his property by holding that it is directory merely. 'We hold that it is so far mandatory, as that when a nominee in a will as testamentary guardian fails for six months to accept as provided in said section, we will not interfere with the exercise by the probate court of its sound discretion in appointing another and different person as guardian.

So viewing the many strong reasons in favor of a general rule of strict construction of this statute and the paucity or entire lack of argument against such rule when based upon the welfare of the wards’ view, which the courts have said is the guiding-star to light their path (West v. West, 94 Mo. App. 683; Campbell v. Campbell, 76 Mo. App. 396; Lusk v. Lusk, 28 Mo. 91), it is beside the question and performs no good office to say that, if the matter had come to ns shorn of its manifold complications of former adjudication as to all questions in issue, we might for the sake of the many appealing equities have ruled otherwise.

For the reasons set out herein the writ of habeas corpus should be ‘quashed and Letitia Todd Breck and Barbara Breck should be remanded to the custody, of Rebecca Rickart; and it is so ordered.

Brown, Bond, and Wother, JJ., concur; Graves, J., concurs in separate opinion in which Lamm, G. J., and Woodson, J., concur.

SEPARATE OPINION.

GRAVES, J.

I am forced by the reasoning of my brother to concur in the first paragraph of the opinion, and therefore in the result. I do not concur in the second paragraph, but this is of no avail to re- lator here, and a discussion of the statute pertaining to testamentary guard- . . íans-is really to no purpose m the case. In my judgment when the testamentary guardian filed his acceptance of the trust with the probate court prior to any action having been taken to invoke the jurisdiction of the court in the appointment of another and different guardian, such act deprived the court of any jurisdiction further than to fix a bond for the testamentary guardian and thereafter see that the trust imposed by the will was carried out. In other words, I am of opinion that both the circuit court and the St. Louis Court of Appeals were in error in not quashing the record of the probate court. However, I leave a discussion of the question to a case where the point becomes a live issue.

Lamm, G. J., and Woodson, J., concur in these views. ‘


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE ex rel. LEWIS B. TEBBETTS v. CHARLES W. HOLTCAMP, Judge of the Probate Court, et al.
    In Banc,
    July 10, 1913.
    For the reasons stated in In re Breck; Tebbetts, Petitioner, v. Rickart et al., ante, page 302, the writ of certiorari issued herein, as ancillary to the writ of habeas corpus, is quashed.
    Certiorari.
    Writ quashed.

      J. D. Johnson and Loomis G. Johnson for relator.

      Frank X. Hiemens for respondents.
   FARIS, J.

This is a companion case to that of In re Letitia Todd Breck and Barbara Breck, Minors; Lewis B. Tebbetts, Petitioner, v. Rebecca Rickart and Lloyd H. Rickart, Respondents, decided at this term, involving the writ of habeas corpus. [Ante, p. 302.] In the latter case the points involved here were fully considered; the two cases having been argued and submitted together. For the reasons given in the habeas corpus case, just decided, it results that the writ of certiorari issued herein should be quashed, and it is so ordered.

Brown and Walker, JJ., concur; Lamm, G. J., and Woodson, J., concur for reasons set out in concurring opinion of Graves, J., in In re Letitia Todd Breck et al., minors, Tebbetts, petitioners v. Rebecca Rickart et al., Respondents.


author: CRAVES, J.

text:
    THE STATE ex rel. JOSEPH A. WRIGHT v. EUGENE McQUILLIN, Judge of Circuit Court.
    In Banc,
    July 10, 1913.
    1. PROHIBITION: Motion for Judgment on Pleadings: Facts Taken from Return. In prohibition, where there is a motion for judgment on the pleadings, the facts stated in- the return, in so far as they controvert the facts stated in relator’s petition, must be taken as the facts of the case.
    2. REFEREE: Right to Resign: Officer. A referee is not an officer within the meaning of section 5 of article 14 of the Constitution, guaranteeing to public officers the absolute right to resign.
    3.-: -: Not Absolute. A referee, duly appointed by the court, has a qualified, rather than an absolute, right to resign. He cannot be permitted to resign for mere captious or capricious reasons, but he does have the right to resign for good and sufficient causes. The things that would authorize the court to remove him will authorize him to resign; and that, notwithstanding the fact the statute says nothing about the removal of a referee for cause.
    4. -: -: Bias and Prejudice. A referee who is biased and prejudiced against one of the parties to the suit should .be permitted to resign, especially where he asks to resign on that ground, and the good faith of his confession is not questioned. Referees are charged with a responsible trust, and take the place of juries and courts, and jurisprudence despises bias and prejudice in the administration of justice. Bias and prejudice against one of the parties to the suit is the best of all reasons for removing a referee or for permitting his resignation.
    ProMbition.
    Writ allowed.

      tJoseph A. Wright pro se.

    The right to resign without the consent of the appointing power is settled. Sec. 5, art. 14, Constitution of Missouri; State ex rel. v. Bus, 135 Mo. 325; Eeiter v. State ex rel., 51 Ohio St. 74, 23 L. E. A. 684; Olmsted y. Dennis, 77 N. Y. 378. (2) A referee may resign in- the absence of a statute forbidding it. 34 Cyc. 809; Brooklyn Heights Railroad v. Brooklyn City Railroad, 93 N. Y. Supp. 849. (3) Where a judge or referee believes himself prejudiced, he has both the right and is under the duty of resigning. 23 Cyc. 590; 34 Cyc. 809; State v. Fort, 178 Mo. 518; State v. Gilham, 97 Mo.. App. 296.
    Fordyce, Holliday & White and Fred Armstrong, Jr., for Eliza P. O’Hara.

      Eugene McQuMin pfo se; Edw. C. Kehr for Ber-thold & Jennings.
    The question is whether the circuit court, which has undoubted jurisdiction of the cause in which the referee is appointed, exceeds its authority in requiring the referee, before accepting his resignation, to file a report of his actions and proceedings as referee in said cause. “The whole subject of reference is governed by the statute.” Caulk v. Blyth, 55 Mo. .294. On the 5th of April, 1905, the relator was appointed referee to try all the issues in this cause “and report his findings therein with convenient speed. ’ ’ The statute provides that the referee shall take and subscribe an oath faithfully and fairly to hear and examine the cause and to make a just, impartial and true report according to the best of his understanding. R. S. 1909, sec. 2001; R. S. 1899, sec. 703. The reference in this case is compulsory, and the parties having failed to agree, the court of its own motion appointed the referee. He accepted the appointment and qualified as-such. He thereby became an officer of the court appointing him. Higgins v. Wright, 43 Barb. 461. And as such is subject to its orders and control. Ford v. Ford, 53 Barb. 525. It will be perceived that the statute of Missouri contains no provision authorizing the resignation of a referee. Having accepted the appointment it bas become bis duty to perform tbe functions wbicb tbe court bas assigned to him. If circumstances should arise wbicb make it impossible for him to discharge that duty, be should report .to tbe court bis actions and proceedings up to that time, advising tbe court of what bas been done and what remains to be done, and of tbe facts making it necessary for. him to discontinue bis labors; and upon tbe coming in of such report tbe court will be in condition to judge whether or not tbe referee should be relieved from, further performance of bis duties. Tbe referee remains tbe court’s appointee'and subject to its order until bis resignation is accepted by tbe court. Respondent moreover submits that sections 2006 and 2011 of the Code are ample warrant for tbe rule wbicb tbe court made on relator to report bis actions and proceedings in a case wbicb be bas bad under submission for practically eight years.
   CRAVES, J.

Original action in prohibition. The facts may be thus summarized: On April 5, 1905, there was pending in the circuit court of St. Louis City an action wherein Elizabeth O. O’Hara, executrix of the estate of Henry O’Hara, was plaintiff, and the firm of Berthold & Jennings were defendants. the suit and a counterclaim filed therein by defendants (both in large sums, requiring an extensive accounting between the parties) rendered the case one for compulsory reference. This action fell by allotment to Division No. 6 of the St. Louis City Circuit Court over which respondent has presided since January 1, 1913. On April 5, 1905, respondent’s predecessor appointed relator, Wright, as referee in said cause by the usual order in such cases made, and Wright qualified and proceeded to act, but to what extent does not appear in the record before us in the instant case. It does appear that a previous referee bad taken, all'the evidence in the case, and Wright was appointed on the death of the first referee. The facts we take from the respondent’s return in so far as they controvert the allegations of the relator’s petition. This we do because the case is submitted here upon a motion for judgment on the pleadings. In such case, so far as the facts stated in the return controyert the facts stated in the relator’s petition the return must govern. :

On December 31, 1912, the referee Wright filed his written resignation in said cause, assigning as one of his reasons therefor that he was biased and prejudiced in the cause as to the plaintiff therein. Other reasons we omit. January 2, 1913, the defendants in the cause pending nisi filed their application for a rule upon the referee to report on said cause. This application on January 24, 1912, the court sustained in a summary way and directed the referee to report forthwith his actions and proceedings in said cause. January 30, 1912, the plaintiff by proper motion and application asked the court to vacate its order of January 24, 1912, and either accept the resignation of the referee, or remove him from office, because of his bias and prejudice against her, and appoint another referee in said cause. This application, which was duly verified by oath, contains among other things the following :

“That said Joseph A. Wright, the present referee, is prejudiced and biased against plaintiff in this cause, and has expressed a prejudice and bias against plain tiff in this cause, and consequently is not a proper person to act as referee herein, and is not competent to render a report on the merits of the cause.”

This application, verified as aforesaid by the affidavit of one of plaintiff’s counsel, was summarily overruled, and the referee left to make immediate report or take other steps. The referee in this situation applied to this court for a writ of prohibition, and an order to show cause was issued. The return of the respondent does not question the fact of Wright’s prejudice and bias. It proceeds on the broad ground that the court can direct Wright to report until such time as the resignation is accepted or he is removed— and although not in expressed terms, the return in fact denies the right of the referee to resign for any reason. Other matters will be left for the course of the opinion.

I. I am impressed that both parties to this action have an erroneous view of the law of the case. Be ■ lator urges an absolute and unqualified right to resign his position, and cites us to section 5 of article 14 of the Constitution, and some case law. The constitutional provision cited has no reference to a referee. This provision has reference to officials of a different hind and character. The section does recognize the absolute right to resign in the class of officers to whom it refers, but -relator does not belong to this class. The cases cited likewise do not support the contention, and for the same reasons. Whilst in a sense a referee is an officer of the court, he is not an officer within the meaning of this constitutional provision. A referee is thus defined in '24 Am. & Eng. Ency. Law (2 Ed.), p. 219:

“A referee is a person to whom a cause pending in court is referred by the court, to take testimony, hear the parties, and report thereon to the court, and upon whose report, if confirmed, judgment is entered.”

Another authority, 34 Cyc. 774, thus defines “reference” and “referee:”

“A reference is- a sending of a pending cause or some question therein by the court in which it is pending to a private person to hear and determine the cause or some question therein or to take evidence and report the same, with or without his opinion thereon, to the court. Before there can be a reference there must be an action pending, and generally only matters connected with, the pending snit can be referred. The person to whom the reference is made is usually termed a referee; but various other names are given to such persons in different jurisdictions, there sometimes being, however, a difference between a referee and such other person. The terms auditor, commissioner, arbitrator, examiner, assessor, etc., are often used. A referee is to be distinguished from a master who is appointed only in equity suits pursuant to the old equity practice, although in some jurisdictions a referee in an equity suit appointed pursuant to statute is now termed a referee rather than a master. In so far as such officers perform the duties of a referee, the difference in title may be disregarded' and the title of referee is therefore used generically throughout this article except where there is a difference of importance between the particular officer and a referee.”

No definition brings a referee within the class of officers held in view by the constitutional provision, supra. On the other hand respondent apparently denies the right to resign in toto. To our mind the true rule lies between the two extremes. I do not believe that a referee should, be permitted to resign for mere captious or capricious reasons, but that there is a right to resign for good and sufficient reasons, I. have no doubt. The right to resign is in my judgment a qualified, rather than absolute one. In other words it is a right dependent upon the the reasons for its exercise. If the reason assigned is good and valid the right is there, but not so if the reasons are otherwise. The right of the court to remove a referee for good cause, and the right of the referee to resign for good cause, should go hand in hand. If the one is recognized, the other should be recognized. The thing which would authorize the court to remove the referee should authorize the referee to resign, and force the acceptance of such resignation, if acceptance be necessary.

It is urged that our statute makes no provision for the resignation of a referee and this is true. Nor does the statute provide for the court’s removal of. the referee for cause. The only statutory provision is one authorizing the court to appoint another referee in the event the first appointee dies or removes from the State. [R. S. 1909, sec. 2000.] Not a word is said about removing for cause, yet the courts all recognize that a referee may be removed for cause, and one of the chief causes is bias and prejudice. It is also true that our statutes make no specific provision for the resignation of a referee for good cause or reasons, yet it does not necessarily follow that- such right does not exist. Our statutes with regard to references and referees are but additions to the old chancery idea of masters in chancery. The statutes merely broaden the common law field for references. For this reason the statutes are not full and complete, but much is left to be gathered from the old chancery rules as to references in chancery. In chancery practice the right to remove a master in chancery for good cause was always recognized, and- the same doctrine has been followed under statutory provisions for reference.

“In 34 Cyc. 809, the law is thus stated:
“A referee is subject to removal by the court, even where appointed by agreement of the parties, but only for good and substantial reasons. For instance the referee may be removed because of prejudice or bias, or misconduct, or by the expression of an opinion on the facts before the hearing.”

In Bowen v. Steere, Executor, 6 R. I. 1. c. 253, Ames, C. J., says:

“The motion to discharge the rule altogether, upon the ground that two of the referees after their appointment, and before they had heard the case of the claimant, expressed opinions unfavorable to it, demands, on account of the nature of the cause alleged, the careful consideration of the court. Whilst in modern times courts have been more liberal in overlooking bonest errors in referees and arbitrators, and mere defects of form in their reports and awards, they have been more strict in requiring from them the integrity and impartiality which belong to the judicial character. [Cleland v. Hedly, 5 R. I. 163; Strong v. Strong, 9 Cush. 573.] The partiality betrayed by the expression of an opinion by a referee for or against the case of either party before he has heard it, would, unless the parties had agreed to. waive impartiality in the tribunal selected by them, be a good cause to invalidate his report, and to discharge the rule which appointed him. Under such circumstances the court would be bound to presume, notwithstanding the referee swore that his prejudice did not sway him,'that the report was not the result of his fair and deliberate judgment, but of preconceptions, which placed him beyond the influence, of both law and fact. [Fox v. Hazelton, 10 Pick. 275; Boston Water Power Co. v. Gray, 6 Met. 169.]”

So in the case at bar, what court could say that a fair report had been given by the biased and prejudiced mind of the referee. This, too, in the face of admitted' bias and prejudice.

In the case of Goldberger v. Railroad, 23 N. Y. Supp. 1. c. 178, it is said:

“Referees are judicial officers, charged with a responsible trust. They take the place of the jury as well as of the court, and their finding upon the facts is generally accepted as conclusive. Like jurors or arbitrators, they should be persons entirely unbiased and indifferent between the parties, or their competency to act may in like manner be challenged, and any secret understanding as to receiving fees in advance from one party (Russ. Arb. 129; Morse Arb; Redm. Arb. 93) or any other act of misconduct, calculated to bias or influence any one of the referees in his conduct, or to prejudice -either party, is generally regarded as ample cause for removal, and for setting aside the award when made. For example of the stringency of this rule, see Forrest v. Forrest, 3 Bosw. 650; Dorlon v. Lewis, 9 How. Pr. 9; Yale v. Gwinits, 4 How. Pr. 253; Livermore v. Bainbridge, 44 How. Pr. 362, affirmed 47 How. Pr. 354; Marie v. Garrison, 1 How. Pr. (N. S.) 32; Devlin v. Mayor, 7 Daly, 466; Carroll v. Lufkins, 29 Hun, 17; Burrows v. Dickinson, 35 Hun, 492; O’Brien v. Long, 49 Hun, 80, 1 N. Y. Supp. 695. Misconduct or bias upon the part of referees may he of two kinds — either positive, as by some act that can he directly proved, or inferential, where the circumstances so strongly point to undue influence that the presumption alone will be taken as conclusive.”

In the case at bar we have confessed bias toward one of the parties upon the part of the referee. The good faith of this confession is not questioned and cannot well he questioned. To force a biased and prejudiced mind to try a cause would he a travesty upon justice. Other cases as strongly recognizing the right of the court to remove a referee for bias and prejudice will be found cited in 34 Cyc. supra, and we need not go further.

As above indicated “the reason assigned by this referee is the very best of all reasons.” The law contemplates a fair and impartial trial of all issues before a fair and impartial tribunal. Jurisprudence despises bias and prejudice in the administration of justice. Bias and prejudice saps the very life blood of even-handed justkié. For that reason we exclude proffered jurors from service. For that reason circuit judges are temporarily dethroned and new judges called to try the cases. In fact,.bias and prejudice are shunned at every step of legal proceedings, and rightfully so. Now to the case at bar. The referee openly admits his bias and prejudice as against one of the parties litigant and he asks the court to relieve him of the situation to the end that untrammeled justice may prevail. Not only so, but the party aggrieved by the feelings of the referee moves to have him removed and another appointed, and both of these requests are summarily disposed of by the court by another directing the referee-to proceed to report. To my mind such condition is anomalous. All the case law holds that a referee should be removed for prejudice, and yet the court nisi held relator could neither resign nor be removed. If he can be removed for prejudice, as the case law holds, should we hold that he cannot resign for the same cause? If he can be removed for prejudice, he certainly should be permitted to resign for the same reason. In other words, if the law imposes upon the judge the duty to remove a referee for bias and prejudice, the same law should impose upon the referee the duty to resign for the same cause. This is particularly true, because the referee more fully than any other has the knowledge of the condition of his own mind. Bias and prejudice is a good cause for the resignation of a referee, and when such reason is assigned for the act the resignation should go as a matter of course and right, and not as a mere matter of grace. We shall, however, approach the question from another angle or viewpoint.

II. A referee is but an arm of the court, created by the court, to do things which the court could itself do, but for the inconvenience and time. His qualifications should be along the lines of required of a trial judge, because he performs duties that otherwise would have to be performed by such judge. Not only should his qualifications be along lines of those required of the trial judge, but the things which disqualify the one to act should disqualify the other. Bias and prejudice has always disqualified the judge in Missouri, and it should likewise disqualify the referee. As to the judge, the rule is tersely stated in 23 Cyc. 590, in this language:

“A judge may take judicial notice of matters affecting his qualification and refuse to act if disqualified within his own knowledge and without any extrinsic evidence' of such disqualification; and it is not only the right but the duty of a judge to refuse to preside at the trial of a case in which he is disqualified, without regard to the manner of receiving information of his disqualification.”

So in the case at bar, if the referee, acting in good faith (and there is nothing to the contrary in this record) discovered that he was prejudiced against one of the parties, he had the right to resign in the interest of justice and fair play. In some States the final report of referees have been set aside on the ground of bias and prejudice upon the part of the referee.

We have in the case at bar the solemn' admission of his bias and prejudice. We have also an affidavit to the same fact, and yet without further information the trial judge summarily directs the referee to proceed to determine the issue between the parties. This should not be — in the interest of jurisprudence. A referee should have the right to resign for the same reasons and upon the same grounds, as would authorize the court to depose him'. That such grounds exist in this case is not denied by the respondent’s return. With the trial judge it seems to have béen a mere question of the right of a referee to resign under any circumstances and he adjudged that the referee had no such right. We hold that where bias and prejudice is admitted, as in this case, the referee has the right to resign, and the trial court exceeded his authority in directing the referee to proceed further with the case. Let the writ of prohibition go. Cost to be taxed to relator.

All concur except Brown and Walkerf JJ., who dissent.