Opinion
March 10, 1936.
1. WILLS: Relatives of Testatrix. The husband of a testatrix is not a relative within the meaning of Section 527, Revised Statutes 1929, providing that when any estate is devised to a relative who shall die before the testator, leaving lineal descendants, such descendants shall take the estate, as such devisee would have done.
Where testatrix devised her residuary estate to her husband and he died leaving no lineal descendants, before her death, the residuary clause of the will lapsed and testatrix died intestate as to that part of her estate.
2. WILLS: Heirs of Testatrix. Where testatrix left one dollar each to her brother and father who predeceased her, that part of her estate would go to their lineal descendants who are the sole surviving heirs of testatrix.
In such case the probate of the will would be useless since the property would go to the heirs of testatrix in any event.
3. MANDAMUS: Prohibition. Mandamus will not lie requiring the performance of a useless official act.
Prohibition will lie to prevent the circuit court from proceeding by mandamus to compel the probate court to probate a will where such probate would be useless.
PROVISIONAL RULE MADE ABSOLUTE.
Homer Hall and W.T. Ragland for relators; Ragland, Otto Potter of counsel.
(1) Relators in the mandamus proceeding in the circuit court, who claim as heirs and next of kin of William J. McAdams, deceased, have no interest whatever in the estate of Helen McAdams, deceased, regardless of whether her purported will is, or is not, probated. (a) Assuming that the purported will of Helen McAdams, deceased, is in fact her last will and testament, the devise therein to William J. McAdams, her husband, was a devise of the residuary estate; there is no provision in the will that another should take in the event he died before the testatrix, nor does the devise fall within the provisions of Section 527, Revised Statutes 1929. The devise, therefore, lapsed. 69 C.J., p. 1067, sec. 2301; 28 R.C.L., p. 336, sec. 327; Jones v. Patterson, 271 Mo. 9; Romjue v. Randolph, 166 Mo. App. 96; McMenamy v. Kemplemann, 273 Mo. 460; Snow v. Ferril, 8 S.W.2d 1017; Branell v. Adams, 146 Mo. 89. (b) With respect to the devise of the residuary estate to William J. McAdams, which lapsed, Helen McAdams died intestate, and that part of her estate passed to her heirs and next of kin under the Statute of Descents and Distributions. 18 C.J., p. 837, sec. 65; Jones v. Patterson, 271 Mo. 9; Romjue v. Randolph, 166 Mo. App. 87. (c) Under the Statute of Descents and Distributions relators here are the heirs and next of kin of Helen McAdams, deceased, and the legacies of one dollar each to Allen Cowden and Homer B. Cowden, their ancestors, would not, if the will were probated, render them "incapable of inheriting" that part of the estate of Helen McAdams, deceased, as to which she died intestate. Relators in the mandamus proceeding in the circuit court did not, therefore, as kindred of William J. McAdams, deceased, inherit from Helen McAdams, deceased, under Section 308, Revised Statutes 1929. Sec. 306, R.S. 1929; 18 C.J., p. 843, sec. 76; Watson v. Watson, 110 Mo. 170; Hurst v. Von De Veld, 158 Mo. 247. (2) Necessary grounds for the issuance of a writ of mandamus: "In order that a writ of mandamus may be available it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of respondent to perform the act required." State ex rel. v. Stone, 269 Mo. 342; State ex rel. v. Newman, 91 Mo. 451; State ex rel. v. Williams, 99 Mo. 303; State ex rel. v. McIntosh, 205 Mo. 610; State ex rel. v. Bridge Co., 206 Mo. 134. (3) Prohibition lies in this case: The office of a writ of prohibition is to keep an inferior court within the orbit of its jurisdiction. The lack of jurisdiction may exist with reference to the subject-matter generally, or it may exist with reference to the parties to the suit, or it may exist with reference to excess or abuse of jurisdiction in the concrete case itself. State ex rel. v. Burney, 193 Mo. App. 336; State v. Wood, 155 Mo. 445; State v. Westhues, 290 S.W. 447; State v. Bird, 253 Mo. 581; Dahlberg v. Fisse, 40 S.W.2d 610; State v. Mulloy, 331 Mo. 776; State v. Mulloy, 329 Mo. 1; State ex rel. v. Williams, 221 Mo. 246.
Cunningham Scott and H.J. Bain for respondent.
(1) There is nothing in the administration statute requiring that a will shall be first presented to the probate court for proof by a party in interest. R.S. 1929, secs. 528, 531. (2) The will of Helen McAdams presented on December 21, 1934, was exhibited to the probate court within a year from December 21, 1933, the date of first publication of notice of granting letters of administration. R.S. 1929, sec. 531; 38 Cyc., pp. 317, 318. (3) When a will is once filed in probate court to be proven there is no provision in law for it to be removed or withdrawn from the consideration of the court. Peters v. Peters, 343 Ill. 493, 175 N.E. 846. (4) When a will is presented to a probate court by a person who believes himself interested in its provisions he may ask that it be admitted to probate. Keniston v. Adams, 80 Me. 290; In re Rankins Estate, 127 P. 1034; Bent v. Thompson, 23 P. 234, 138 U.S. 114. (5) When a will is presented for proof in the probate court it is a proceeding in rem and the court has exclusive jurisdiction of the res which is the will itself. Its duty is to at once proceed to determine whether the writing is the will of the testator. Cash v. Lust, 142 Mo. 637; State v. Gideon, 237 S.W. 220; Hughes v. Burriss, 85 Mo. 663; Stowe v. Stowe, 140 Mo. 602. (6) If the will is properly executed and proved it must be admitted to probate although it appears to contain no provision capable of execution or valid under the law. Cox v. Cox, 101 Mo. 172; Conoway v. Fulmer, 34 L.R.A. (N.S.) 966. (7) The circuit court being the only court designated to construe the provisions of a will, it is not for the probate court to pass on the question of who are the distributees or interested parties under the will. 68 C.J., sec. 622, p. 893; Lilly v. Tobin, 103 Mo. 487; Powell v. Hays, 3 S.W.2d 947.
Original proceeding. Relators seek to prohibit the Circuit Court of Grundy County from further action in a mandamus proceeding.
The will of Helen McAdams, deceased, was exhibited and filed in the probate court within a year from the date of the first publication of notice of letters of administration. It was exhibited on the last day of the year of limitation. The final settlement of the administrator had been approved and distribution ordered. The court refused to take proof of the will. Thereupon the exhibitors of the will petitioned the circuit court to compel the probate court to "receive proof of the execution of said will and grant a certificate of probate, or, if the will be rejected, grant a certificate of rejection."
They contend that the probate judge was without discretion in the matter. It is unnecessary to consider this question for they amended the alternative writ by pleading the will and all the facts necessary to a determination of the issues on the merits. In other words, they sought the judgment of the circuit court on the merits. The amended writ was issued and served on the probate judge. He then petitioned this court for a provisional rule in prohibition. In the will all of her property is bequeathed and devised as follows:
"Second: I bequeath unto my father Allen Cowden the sum of One ($1.00) dollar and unto my brother Homer B. Cowden I also bequeath the sum of one ($1.00) dollar.
"Third: I give, devise and bequeath all of the rest and residue of my estate real and personal unto my husband William J. McAdams."
The legatees and devisee in the will predeceased the testatrix. The husband, William J. McAdams, deceased, left no children or other descendant, and the testatrix, Helen McAdams, deceased, left no children or other descendants. Relators in the mandamus proceeding are sisters, brother, nephews and nieces of William J. McAdams, and are his collateral heirs. Relators in this proceeding are the children of Homer B. Cowden, deceased, the brother of Helen McAdams, and are her collateral heirs.
Respondent circuit judge contends in this proceeding that the heirs of William J. McAdams take the estate of Helen McAdams, except the two dollars bequeathed to the father and brother, under the Statute of Descents and Distributions.
[1, 2] There are no words of substitution or other provisions in the will against a lapse of the devise to William J. McAdams. And the only statute on the question follows:
"When any estate shall be devised to any child, grandchild or other relative of the testator, and such devisee shall die before the testator leaving lineal descendants, such descendants shall take the estate, real or personal, as such devisee would have done in case he had survived the testator." [Sec. 527, R.S. 1929.]
The husband, William J. McAdams, was not a "relative" of the testatrix within the meaning of the statute. [Bramell v. Adams, 146 Mo. 70, 47 S.W. 931.] Furthermore, he died without leaving lineal descendants. It is clear that the devise to him does not fall within the provisions of the statute, and the residuary clause of the will lapsed. [69 C.J., p. 1067, sec. 2301; Romjue v. Randolph, 166 Mo. App. 87, 96, 148 S.W. 185; McMenamy v. Kempelmann, 273 Mo. 450, 459, 460, 200 S.W. 1075; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008, 1017; Bramell v. Adams, supra.] If so, Helen McAdams died intestate as to that part of her estate. [18 C.J., p. 837, sec. 65; Romjue v. Randolph, supra.] And the "relatives" of William J. McAdams did not inherit from Helen McAdams. [Secs. 306, 308, R.S. 1929; 18 C.J., p. 843, sec. 76; Watson v. Watson, 110 Mo. 164, 170, 19 S.W. 543; Hurst v. Von De Veld, 158 Mo. 239, 247, 58 S.W. 1056.]
Relators in this proceeding correctly summarize the facts as follows:
"When the amended alterative writ of mandamus, commanding the Judge of the Probate Court to probate the will of Helen McAdams, deceased, was laid before respondent as Judge of the Circuit Court, it disclosed upon its face: That said will purported to have been executed by said Helen McAdams in the lifetime of her husband, William J. McAdams; that said William J. McAdams, the devisee of the residuary estate in said purported will, predeceased the purported testatrix; that said William J. McAdams left no lineal descendants; that the relators in the mandamus proceeding before respondent were the collateral heirs of said William J. McAdams and were not in any way related to said Helen McAdams; that the legatees in said purported will, Allen Cowden and Homer B. Cowden, to whom were bequeathed one dollar each, were the father and brother, respectively, of the said Helen McAdams, deceased, and predeceased her; and that Alice M. Cowden, M'Liss Cowden, Joseph H. Cowden and Peter H. Cowden, were the children of said Homer B. Cowden, deceased, and consequently were the lineal descendants of said Allen Cowden and Homer B. Cowden, deceased, and were the sole surviving heirs at law of the said Helen McAdams, deceased. From these facts respondent knew as a matter of law that, if the will were probated, Helen McAdams died intestate as to all of her estate except two dollars, the legacies to Allen and Homer B. Cowden; that the part of her estate as to which she died intestate was cast upon Alice M. Cowden, M'Liss Cowden, Joseph H. Cowden and Peter H. Cowden, as her heirs at law and next of kin; that the legacies amounting to two dollars would go to the same persons, as lineal descendants of the deceased legatees named in the will; and that if the will were not probated the estate as a whole would go to the same persons and in the same proportions.
Thus it appears that it would be useless to probate the will. If so, the probate judge should not be compelled to do so. The rule is stated as follows:
"In accordance with principles heretofore considered, the writ will not be issued against a judicial officer if for any reason it would be useless or unavailing." [38 C.J. 614.]
On the face of the amended writ it appeared that the issuance of a peremptory writ would be uselelss. It follows that the circuit court exceeded its jurisdiction and should be prohibited from further action in the mandamus proceeding. [State ex rel. v. Burney, 193 Mo. App. 326, 336, 186 S.W. 23; State v. Westhues, 316 Mo. 457, 290 S.W. 443, 447; State v. Bird, 253 Mo. 569, 581, 162 S.W. 119; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606, 610.]
The provisional rule should be made absolute. It is so ordered. All concur.