State ex rel. Deems v. Holtcamp

BROWN, J.

— Relators petition for a writ of prohibition against the respondents on the ground that the probate court is proceeding without jurisdiction in the matter related below. The following facts appear from the petition and return thereto:

A-rrna Deems Ross died intestate, without issue, in the city of St. Louis, in April, 1909. At the time of her death she owned five parcels of real estate in that city, each one of which was incumbered by a deed of trust to secure certain promissory notes executed by her jointly with her husband.' In April, 1909, letters <of administration on her estate were granted to Augustus Ross, her husband. She left as collateral heirs the relators, Harry W. Deems and Laura V. Deems. Subsequently, August Ross presented a claim for *662 about $3000 against tbe estate, which, after due hearing, was disallowed in October, 1911, and an appeal taken to the circuit court, where it is now pending. No other claims are shown to have existed against the estate. On June 30, 1911, the respondent judge, on a petition filed by the administrator, entered an order of record directing the administrator to take possession and manage said real estate; which order was made under the provisions of the Act of 1911, known as section 139a, Laws 1911, page 80, the same being* an amendment to Art. 6 of Oh. 2, R. S'. 1909, and which reads as follows:

“Whenever letters of administration or testamentary shall have been granted on an estate, and it shall appear to the court or judge in vacation, that the decedent died possessed of real estate in the State, and his heirs or legatees have failed to take charge of same, or the identity or whereabouts of such heirs or legatees are unknown, then the court or judge in vacation may on its or his own motion, or that of any party interested, direct the administrator or executor in charge of said estate, to take charge and manage the real estate, until such time as such heirs or legatees shall appear and petition the court to turn the management of said real estate over to them, or until the same shall escheat to the State as is provided by the ‘Escheat Act.’ ”

The administrator is in charge of the real estate under said order. On the 10th day of July, 1911, said administrator, while his claim for allowance was pending in the probate court, filed in said court a petition in which he alleged that all of said real estate was incumbered with deeds of trust as aforesaid, and also with liens for taxes, and that the holders of the deeds of trust were threatening to sell under same; that if the equities should be sold under favorable conditions they would bring an amount considerably larger than could be realized at sale under the deeds of trust; that *663 Ms claim for $3004.28 was pending in said probate court, and that tbe personal assets were practically, valueless, the petition concluding with the following prayer:

“Inasmuch as there are no assets to redeem such real estate, the petitioner prays that the court shall make an order that all the right, title and interest of the decedent and her estate to such property, or so much thereof as the court shall determine, be sold at private or public sale, as the court in its judgment may determine.”

This petition was not accompamed by an account of the administration, nor by a list of debts due to and owing by deceased and remaining unpaid, nor was notice given to the heirs, relators herein, as required by Sec. 152, E. S. 1909.

Thereafter, on July 11, 1911, these relators appeared specially in the probate court and filed the following motion verified by affidavit:

“Now, at this day comes Harry W. Deems and Mrs. Laura Y. Deems, and, appearing for the purpose of this motion only give the court to be informed and understand that they are heirs at law of Anna Deems Eoss, deceased, and as such heirs, are entitled to distributive shares of the estate of said Anna Deems Eoss. That on Monday, January 10, 1911, one Augustus Eoss, administrator of the estate of Anna Deems Eoss, deceased, applied to this honorable court for an order to sell certain real estate in his petition described, and that such petition was not accompanied by a true account of said Augustus Boss’s administration nor accompanied by a list of debts due to and by the deceased and remaining unpaid, or an inventory of the remaining personal property, together with its appraised value, or of any other assets in Ms hands. That no notice has been given to the persons interested in said estate, and particularly this petitioner, of the filing of such petition, nor have they been given *664 until the first day of the next term of this court to show cause why such an order should not he made, nor has any such notice been published for four weeks in any newspaper in the city of St. Louis, nor has such notice been published by ten hand bills placed in ten public places in said city.

“Wherefore, petitioners say that this court is without jurisdiction to hear and determine the petition of said Augustus Ross, filed as aforesaid, and pray that the same may be dismissed.”

This motion was continued by the court to the next September term, at which term the court stated to counsel for relators that evidence would be heard, if offered, as to the imminent danger of a sale under the deeds of trust; but no such evidence was offered, relators electing to stand on their plea to the jurisdiction. On October, 1911, the probate court, being of the opinion that the application was under Secs. 147 and 148, R. S. 1909, entered the following order:

“Now at this day, the court being fully advised of and concerning the petition of Augustus Ross, administrator of the estate of Anna D. Ross, deceased, for an order of sale of all the right, title and interest of said deceased of, in and to certain real estate in said petition described heretofore, to-wit, on the 15th day of September, 1911, submitted and taken under advisement and it appearing that said real estate is incumbered by certain deeds of trust and liens in said petition described, that said deceased died without having devised said real estate or providing for the redemption thereof by will or otherwise, and that there would not be sufficient assets in the hands of said administrator to redeem said real estate after payment of the debts due by said estate, it is therefore ordered that the said administrator do, on such day as he may select, at the eastern front door of the court house of the city of St. Louis, and during the session of the circuit or probate court of said city, between the hours. *665 of ten o’clock in the forenoon and five o’clock in the afternoon of that day, expose to sale at public vendue or outcry, all the right, title and interest of said deceased of, in and to the following described real estate, to-wit [describing the same], and sell the same for the purpose in said petition mentioned, -for cash, with leave to sell the same at private sale, for cash, first having the same appraised, and if sold at public sale, notice of the time, terms and place of said sale to be published for four weeks prior thereto in some newspaper in the city of St. Louis, as directed by law, and that he make a full report of his proceedings within ten days after such sale.”

It further appears that there are no debts proven against the estate, and no creditors except said administrator, whose claim has since the filing of his petition for an order of sale been disallowed by the probate court, and, as stated above, is now pending on appeal in the circuit court. It also appears that since the institution of this proceeding one of the parcels of real estate has been sold under foreclosure of the deed of trust thereon.

On July 13, 1911, the relators filed a suit in the circuit court to partition the real estate involved herein, which suit is now pending. The respondent Ross charges that this partition suit was filed in order to oust the probate court of jurisdiction, and to defeat him in the collection of his claim for $3004, if it should be allowed in the pending appeal in the circuit court.

Respondents'Holtcamp, judge, and Ross, administrator, each filed a return conceding the facts substantially as stated above, both alleging that the order of sale is based on Secs, 147 and 148, R. S. 1909.

There is no important dispute about the facts. The relators claim that if it is intended as a proceeding to pay debts it is invalid, because there are no debts, and no notice was, given as required, by the statute, and because none of the provisions of the statute *666 in that regard were complied with. Relators further contend that the proceedings cannot be justified under the provisions of section 147, .which provides for the redemption of mortgaged real estate out of the personal assets or by the sale of other real estate. They further contend that the order to sell cannot be justified under the provisions of section 148, supra, and urge as reasons that under our system real estate descends directly to the heirs, and the administrator has nothing to do with it except that, first, he may take charge of and preserve it until the heirs apply to the court for permission to do so; second, that if there are debts, he may sell for the purpose of paying them.

OPINION.

Upon the foregoing facts, has the probate court of St. Louis City power to cause the real estate of. Anna Deems Ross to be sold by the administrator of her estate?

The power of this court to prevent all inferior courts from exceeding their jurisdiction by the writ of prohibition is not denied; but it is contended that the respondent court is not exceeding its jurisdiction in the proceedings set out in relator’s petition.

To acquire jurisdiction a court must (1) possess the power to determine the general class of cases to which the one belongs which it is attempting to adjudicate; (2) when its judgment, as in this case, will affect the title to particular property it is generally necessary that such property be situated within the territorial jurisdiction of the court; and (3) the court must by its process or by voluntary appearance acquire jurisdiction over the persons whose rights will be affected by its decree.

It cannot be denied that probate courts are, by Sec. 34, Art. 6, of-our Constitution, given express jurisdiction over “the sale of lands by administrators.”

*667 I. It is admitted that the land sought to be sold is in St. Louis City. This leaves for our determination only the first and third propositions above noted. In other words, has the General Assembly authorized probate courts to order the sale of real estate upon the facts presented in this case?

II. It is not necessary to consider the alleged indebtedness of the estate of Anna Deems Ross to the administrator (which indebtedness had not been finally ■established when this proceeding was instituted), for the reason that Secs. 147 and 148, E. 'S. 1909 (under which the probate court is proceeding), authorize a sale of incumbered real estate even though there be no general creditors. To direct such a sale as the probate court of St. Louis City has ordered, it seems to be only necessary for it to find that such sale will '“promote the interest of the estate and not be prejudicial to creditors.” If there are no creditors, then of course the sale could not prejudice them.

The phraseology of the statute, sections 147 and 148, supra,, clearly indicates that the sale to be made thereunder is not for the benefit of the party holding a mortgage or other incumbrance, but to “promote the interest of the estate;” that is, the parties entitled to the estate as heirs, legatees or devisees; so that in a proper case, after acquiring jurisdiction of the parties entitled to be heard, or whose interests will be affected by the intended sale, probate courts may order the sale of incumbered real estate of deceased persons.

Such sales, however, are not intended as a substitute for the action of partition, nor to afford an excuse for making fees or commissions for administrators. In the case before us there is no personal estate to be “promoted,” and the incumbered lands-belong to the heirs unless it be found necessary to sell them to pay the alleged' debt of the administrator.

*668 If the sale is being made, to pay tbe unprobatecl claim of tbe administrator or tbe debts due the incumbrancers, then clearly tbe administrator must proceed under Sees. 150', 151 and 152, R. S. 1909, and give tbe notice required by tbe latter section.

Under tbe facts in tbe case before us it is apparent that the administrator is proceeding with tbe sale of tbe real estate of deceased, not to “promote tbe interest of tbe estate,” nor of tbe relators as heirs thereto, but to prevent mutual or judicial partition among tbe heirs and as nearly as possible to eat up in fees and commissions all tbe equities that may exist in favor of tbe heirs. Estates are not supposed to be administered for tbe sole benefit of administrators; but on tbe contrary, they must be so administered as to promote in tbe highest possible degree tbe welfare of tbe heirs, legatees, devisees and creditors.

Courts take judicial notice that a very large per cent of tbe lands of 'this commonwealth and some of tbe most valuable thereof,- are incumbered for some amount, either great or small, and if such property is to be sold by administrators without giving tbe heirs an opportunity to partition tbe same among themselves and then pay off or assume tbe incumbrances (as may suit their convenience) many hardships and losses are likely to be sustained by persons who inherit incumbered property.

Tbe right of persons who have inherited real estate to partition tbe same among themselves is a very valuable privilege, and it cannot be successfully contended that a sale by tbe administrator which would destroy that right, would in any manner “promote tbe welfare” of tbe heirs.

In tbe instant case, tbe administrator seems to be an heir of bis wife, but in many cases administrators have no interest in tbe real estate of tbe person whose estate they are administering, and tbe fact that they. are ordinarily not entitled to commissions on tbe real *669 «estate unless they sell the same, would be a strong incentive to them to sell the real estate in order to increase their .fees. [Sec. 229, R. S. 1909.]

There is nothing in Secs. 147 and 148, R. S. 1909, indicating a legislative intent to repeal or modify the partition statute. There is no showing made why the lands of Anna Deems Ross cannot be partitioned in hind among her heirs; and there being a suit now pending for that purpose, we find nothing to justify the probate court of St. Louis City in making the order of sale it did make.

However, as the respondent court possessed the necessary power to determine for itself the propriety of making the order of sale and as its error can be corrected upon appeal, it should not on account of matters stated in this paragraph be prohibited from exercising its statutory jurisdiction in the matter.

This court will not undertake to prohibit a trial court from deciding a case incorrectly when such trial court has jurisdiction, but will review the error on appeal. What we have said in this paragraph about the invalidity of the order of sale is in a certain sense premature, but seems to be called for by the demand of the parties that the statutes under which respondents are proceeding be construed.

III. The assumed right of the respondent to order a sale of the real estate of Anna Deems Ross, without the service of process or notice of any kind to her heirs, raises a more serious issue.

We are aware that a somewhat similar sale was upheld by this court in Garrett v. Bicknell, 64 Mo. 404 ; but the objection to the administrator’s deed in that case was mainly on the ground that no petition was presented to the probate court asking that the sale be made, and the deed in that case was not assailed on thé ground that there was no notice to the heirs. Courts usually do not pass upon issues which are not specifically called to their attention. [How *670 ard v. Brown, 197 Mo. 36 , l. c. 45.] The lack of notice to the heirs was not called to the court’s attention in the Garrett case, supra, and therefore the opinion in that case is not authority upon the issue now under consideration.

The right of heirs to redeem the lands of their ancestors from incumbrances, the right to partition such incumbered lands among themselves, not to speak of the right to use and occupy the lands until they are actually sold under the incumbrances, are such substantial rights that it is difficult to understand how a sale cari be constitutionally made without notice to those whose rights are so vitally affected.

Our organic law ordains that “no person shall be deprived of . . . property without due process of law.” [Sec. 30, Art. 2, Constitution of Missouri.] No authority need be cited to demonstrate that an equity in incumbered real estate is property, and therefore under protection of the Constitution.

Due process of law is usually construed to be reasonable notice and an opportunity to be heard in defense of one’s rights.

It is true, as contended by respondents, that Secs. 147 and 148, R. S. 1909, do not require any notice to heirs or creditors of a proceeding to sell incumbered lands; but in the well considered case of State ex rel. v. Walbridge, 119 Mo. 383 , l. c. 394, we said: “The law in accordance with the principles of justice — principles which are fundamental and eternal — will require that notice be given before any person be passed upon, either in person, estate or any other matter or thing to which he is entitled. And though: the stat: utes do not in terms require notice, the law will imply that notice was intended.” See, also, State ex rel. v. Maroney, 191 Mo. 531 .

It is needless to multiply authorities in support of a proposition the mere statement of which demonstrates its correctness.

*671 It is contended by respondents that as relators appeared in tbe probate court and objected to the proceeding whereby the respondents sought to sell their property, therefore the court acquired jurisdiction over them to make the order of sale.

However, the record shows that the relators appeared specially for the sole purpose of objecting to •the jurisdiction of the court, and that they took no part in the pretended trial or investigation which resulted in the order of sale complained of, therefore the court acquired no jurisdiction over them. [Thomasson v. Mercantile Town Mutual Ins. Co., 217 Mo. 485 .]

It is not necessary to determine whether or not the notice specified in Sec. 152, R. S. 1909, would have been sufficient to confer jurisdiction upon the probate court of St. Louis City to proceed under Sees. 147 and 148, E. S. 1909, and make the order of sale it did make, for the reason that no notice of any kind was given in the instant case.

The probate court of St. Louis City exceeded its jurisdiction in making an order for the sale of property in which relators are interested without giving them notice or acquiring jurisdiction over their persons in any other manner; therefore, the preliminary writ of prohibition issued herein will be made absolute. It is so ordered.

Ferriss and Kennish, J.J., dissent, in opinion by Ferriss, J.; Vállicmt, G. J., concurs; Graves, Wood-son, and Lamm, JJ., concur in the result, and express the further opinion that probate courts have no jurisdiction even with notice to order the sale of lands of deceased persons for purposes of partition.