Ex parte Slater Public Administrator

This is a petition for a writ of mandamus against the judge of the District Court for the Eastern District of Missouri directing the revivor in the petitioner's name of a suit in equity. The facts, about which there is no dispute, are these: In 1916 the District Court by a decree in a pending suit awarded $95,770, then in the registry of the court, to five solicitors as the balance due to them collectively for services in the suit, and directed that this sum be apportioned among them according to the relative amount and value of the services of each, due regard being had for payments already made. Control of the suit and fund was retained to enable the court to make the apportionment and carry it into effect. The solicitors appeared in the suit and while proceedings looking to an apportionment were pending one of the solicitors died. He was a resident of Texas and was survived by a widow and son, both living in that state. By his will, regularly presented for probate in Texas, his entire estate, excepting $1 bequeathed to the son, was devised and bequeathed to the widow, and she was named as sole executrix. The will was what is known under the laws of Texas as an 'independent' will, the same containing a direction that no action should be had thereunder other than to probate it and to return an inventory and appraisement. See Tex. Civ. Stat. 1914, art. 3362 et seq. After the will was presented and while it was awaiting probate in regular course the court in Texas appointed the widow temporary administratrix and directed her in that capacity to take charge of the estate and do whatever was necessary to obtain the deceased's portion of the fund awaiting distribution in the District Court. She qualified as temporary administratrix and as such presented in the suit a motion asking that it be revived by substituting her as a party in the place of the deceased. A few days later the public administrator of St. Louis, Missouri, acting under an order of the probate court of that city, presented in the suit a motion, erroneously styled an intervening petition, asserting that he was the deceased's only legal representative in Missouri and insisting in effect that the revivor be in his name.

These conflicting motions were heard together, were argued orally and in elaborate briefs by counsel for the respective applicants for substitution, and were considered in a memorandum opinion wherein the judge, after indicating that a revivor was essential and that the question for decision was as to which of the two applicants was the proper party to be substituted in the place of the deceased, reac ed the conclusion that the revivor should be in the name of the widow as temporary administratrix. An order was accordingly entered granting her motion and denying that of the public administrator. That order was dated October 29, 1917.

November 6, 1917, the will was regularly admitted to probate in Texas, and the judgment by which this was done contained an express finding that there was no debt to be paid and no occasion for administration upon the estate. The widow then presented in the suit a motion setting up the probate of the will with the finding made in that connection and insisting that this and the terms of the will operated under the laws of Texas to invest her in her individual capacity with the full right, title and interest of the deceased in the fund as of the date of his death. The motion concluded by asking for an order recognizing and substituting her in her individual right as the successor in interest and title of the deceased. A hearing was had upon this motion and the same was granted November 19, 1917.

That was the date on which this court, after examining the present petition of the public administrator, granted leave to file the same and ordered that a rule to show cause issue against the defendant judge.

Mr. George B. Webster, of St. Louis, Mo., for petitioner.

Mr. Jacob Chasnoff, of St. Louis, Mo., for respondent.

Mr. Justice VAN DEVANTER, after making the foregoing statement, delivered the opinion of the Court.