DISSENTING OPINION. I concur in the majority opinion in so far as the question of respondent's right to appoint coadministrators is concerned.
I cannot agree with the sustaining of the compelling orders of the alternative writ in respect to compelling the appointment of relatrix or recognizing relatrix as sole administratrix by annulling in part and, by the judgment of this court, compelling respondent to recognize her.
I conclude, as it is stated in the alternative writ, that the appointment of coadministrators was in effect a refusal to appoint the relatrix herein or to grant letters of administration to her alone.
The orders contained in the alternative writ are conflicting in that the writ compels respondent to appoint relatrix and compels respondent to recognize relatrix alone as appointed by the very order that the writ declares was a refusal to appoint her to act alone.
If the orders and decrees made by respondent in fact do appoint relatrix and can be construed as conclusive as to her qualifications, then mandamus does not lie for the reason that such writ cannot lie *Page 31 to compel the doing of a thing already done. [Works v. Homer, 155 S.W. 405, 249 Mo. 58.]
If the majority opinion be right in the conclusion that relatrix stands duly adjudicated as qualified and appointed to administer alone, then the petition for mandamus should have been directed alone to the undoing of the orders made by the respondent in appointing of the Commerce Trust Company.
I conclude that the language as used by this court, in the alternative writ, is conclusive of the fact that the order of respondent appointing coadministrators did not adjudicate that relatrix possessed qualification to administer alone. While the respondent's order does not say, in express language, that the respondent had judicially passed adversely on relatrix' qualification, still there is sufficient expressed in respondent's order from which it may be concluded that in the exercise of the discretion, that respondent was clothed with, he had judicially determined that relatrix did not possess the necessary qualifications to act alone.
Further than above, in a mandamus proceeding directed to a judicial officer, said officer may impose defenses that are not fully disclosed in the record and can in his return assign reasons, which may not be clearly expressed as the grounds upon which his ruling was based when made. [Town Co. v. Mossman, 87 S.W. 75, 112 Mo. App. 540.]
If the above be not so, then our order for respondent to come into court and show cause serves no useful purpose.
If we give any credence or consideration of the reasons assigned by respondent in his answer herein, I conclude that it is shown conclusively that respondent, judicially and acting under his discretion, adjudicated as to relatrix' qualifications to act alone and that respondent found adversely as to her qualifications to act alone.
To my mind it is evident that the showing of the record herein is to the effect that respondent, after having concluded that relatrix did not possess the necessary qualifications to act alone, acting on an erroneous conclusion of fact, to-wit: that there was consent made to the order appointing coadministrators. This court should, of course compel the undoing of this act. However, for this court to say that said act is an adjudication of relatrix' qualifications to act and an appointment for her to act alone is in my mind a substitution of our findings and our judgment for that of the respondent, whose duty it was to adjudicate as to qualifications and whose duty it was to act.
As relatrix' petition states that the appointment of Commerce Trust Company was a refusal to appoint her alone and as the alternative writ so states, we conclude that there has been no orders made to appoint her alone, and to permit her to act alone would be to permit *Page 32 her to act alone in face of the refusal on the part of the respondent to find her qualified and to so appoint her.
Concluding as I do, that based upon the language of the order itself and based upon the language in respondent's return, and the record showing herein, there has been a judicial determination by respondent touching relatrix' qualifications as to act alone. I, of course, conclude that any permanent writ given by this court should be directed as a compelling order undoing of the unwarranted act and directing the respondent to proceed in due conformity with law in the making of an appointment.
Without distinguishing between the cases, my language might be construed as in conflict with State ex rel. Eva C. Fansher and Marjorie Fansher v. Guinotte, 227 Mo. App. 902,58 S.W.2d 1005.
In the Fansher case there were four persons who applied for letters. There was a judicial hearing had touching the qualifications of the applicants and testimony was heard by the court and the court made finding against two as not being qualified and for two as being qualified. After this hearing and finding, the court appointed as coadministrators the two that he had judicially found as qualified.
Our opinion determined in that case, that the appointment of coadministrators was unwarranted.
The only other question presented was the question of priority of right as to the two appointed.
In the Fansher case it is conclusively shown that one of the appointees, Eva C. Fansher had been duly approved as to qualifications to act and as it was conclusive that she had priority our writ compelled her to be recognized as such. Such order was well based upon the finding made in the trial of the question as presented and determined judicially by the court and it would be improper to base same from the act of appointing coadministrators.
The issues as presented in the case at bar are materially different. It is conceded by relatrix' petition that the respondent refused to appoint her alone and the writ so concedes.
The prayer of the petition in the present case asks this court to compel respondent to make appointment of relatrix and the writ itself compels respondent to appoint her as sole administratrix.
The petition, writ, answer and record in this case shows that the respondent has made what I conclude is a judicial determination as to relatrix' qualifications to act alone and that having so done mandamus will not lie as to such judicial determination. [Thompson v. Nortoni, 191 S.W. 429, 269 Mo. 562; State ex rel. Reismeyer v. Holtcamp, 200 S.W. 204, 273 Mo. 124.]
The writ that should be issued by this court, I conclude, should not go further than to compelling of the undoing of the act of respondent *Page 33 in appointing coadministrators and to direct future procedure in accordance with the law as expressed in the statutes and the law as determined by adjudications by the appellate courts.