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July 8, 1983


From the Circuit Court of Bollinger County, Probate Division; Civil Appeal; Judge William Hopkins.

Before Crow, P.j., Greene, C.j., Flanigan, Maus, JJ.

The opinion of the court was delivered by: Crow

This is an appeal from an order of the Probate Division of the Circuit Court of Bollinger County ("the probate division") denying an application for letters of administration by a putative daughter of a decedent, denying a like application by a sister of the decedent, and directing that letters be issued to the public administrator.

Robert A. Seabaugh ("Robert") died December 30, 1981, at age 65. On January 20, 1982, Ethel Taylor ("Ethel") filed a petition in the probate division to require administration of Robert's estate. § 473.020, RSMo 1978, as amended by Laws 1980, p. 455. Ethel's petition alleges Robert died intestate and that she, being his sister, is entitled to administer, as are two other sisters and a brother, the four being Robert's "lawful heirs at law." § 473.110.2, RSMo 1978, as amended by Laws 1980, p. 459.

On January 28, 1982, appellant ("Jacqueline") filed an application for letters of administration in the probate division, alleging she is Robert's daughter, and listing no other heirs. In a brief accompanying her application, Jacqueline states her mother ("Maxine") married Robert September 30, 1943, that Jacqueline was born June 24, 1945, and that Maxine and Robert were divorced October 24, 1947. Jacqueline supplied the probate division a copy of her "birth certificate" and copies of certain documents from the court records of the divorce case, including the decree as shown in a judgment book. Jacqueline asserts her status as Robert's daughter is res judicata by reason of the divorce decree, and that Robert's siblings are collaterally estopped from claiming Jacqueline is not Robert's child.

On February 16, 1982, Ethel filed a brief in the probate division, denying that Jacqueline is Robert's child and asserting that Jacqueline was not adjudicated to be so in the divorce case.

On March 3, 1982, the Judge of the probate division entered an "Order Directing Issuance of Letters." The order states "that there has been no evidentiary hearing and no determination of heirship proceeding nor other litigation in which an adjudication has been made as to who the heirs of Robert A. Seabaugh are and, hence, who is entitled to the issuance of Letters of Administration." The order continues, "The Court, in entering this order, makes no finding, determination or adjudication as to the heirship of Robert A. Seabaugh, deceased." The order further provides, "The Court does hereby find, order and adJudge that the divorce proceeding . . . and the judgment entered therein, does not make res judicata the issue of the parenty of Jacqueline K. Seabaugh Arseneau; and the Court finds that the issue of whether or not Jacqueline K. Arseneau was the daughter of Robert A. Seabaugh was not adjudicated in the aforementioned case . . . ." The order declares that by reason thereof, Robert's "heirs" are not collaterally estopped from challenging the allegation that Jacqueline is Robert's child. The order contains a finding that except for Ethel, Robert's siblings have not applied for letters of administration, and an additional finding that Jacqueline is not acquainted with the estate or any of Robert's assets "inasmuch as she did not associate with him prior to his death and is a nonresident of this state." *fn1

Having set out these findings and others, the order declares that neither Jacqueline nor Ethel is competent and suitable to serve as personal representative, and that letters of administration shall issue to the public administrator of Bollinger County ("Brown") upon his application.

On March 5, 1982, Brown made application, and letters were issued to him the same day. *fn2

Jacqueline's notice of appeal states she appeals from the Order Directing Issuance of Letters "in which the Court finds, orders, and adJudges that the heirs of Robert A. Seabaugh are not collaterally estopped from challenging the allegation that Jacqueline Kay Seabaugh Arseneau is the child of Robert A. Seabaugh, entered in this section on the 3rd day of March, 1982." el did not appeal.

Brown filed a motion in this Court to dismiss the appeal, the basis of the motion, as we understand it, being that the order of March 3, 1982, is not final for purposes of appeal because it does not dispose of all issues between all parties. Specifically, Brown's motion states that the probate division determined it did not have jurisdiction to determine whether Jacqueline is Robert's daughter. *fn3 Brown's motion adds that until "a proper action is filed by an interested party" and a final judgment is entered on the paternity issue, there is no appealable order.

Brown's motion was taken with the case.

We hold the probate division's order is not appealable, but for different reasons than those asserted by Brown.

Historically, Missouri has allowed no appeal from an order granting, or denying, an application for letters of administration. Maus, Probate Law and Practice (3 Mo. Prac. Series) § 565 (1960). The rule originated in State ex rel. Grover v. Fowler, 108 Mo. 465, 18 S.W. 968 (banc 1891). There, a daughter and a son applied separately for letters of administration on the estate of their deceased mother. The probate court *fn4 heard both applications simultaneously, denied the daughter's application, and issued letters to the son. The daughter appealed *fn5 and also commenced an original proceeding in prohibition in the Supreme Court to prevent her brother from acting as administrator and to prevent the probate Judge from recognizing him. Then (as now) there was a statute listing the types of probate court orders from which an appeal was allowed. *fn6 One type was "all orders revoking letters testamentary or of administration." Orders granting or denying letters of administration were not lited. Following the list (14 in all) was a provision allowing an appeal "in all other cases where there shall be a final decision of any matter arising under the provisions of this chapter." The Supreme Court stated that if appeal lay from an order appointing an administrator, it must be by force of this latter provision. Observing that the legislature provided specifically for an appeal from an order revoking letters, but made no mention of an appeal from an order appointing an administrator, the Supreme Court held this raised a strong inference that it was not the intention to allow an appeal in the latter case. The Supreme Court held that where there are competing applications by persons equally entitled to administer, the decision as to whom to appoint is left to the judgment and discretion of the probate court, not reviewable by appeal. If one applicant has statutory priority over others, the probate court is ...

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