USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 5
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A change is also noticeable in reference to the distributive share of a widow in her husband's estate. This provision was omitted from the statute of Descents and Distribu- tions in 1825 and has remained so until this day; her share in the personal estate, after the absolute allowance, being given by the Statute of Dower. But in 1825 she was entitled to "one full and equal third part" of the real estate and slaves for life, and one equal third part of the other personalty absolutely as her dower, while at this pres- ent time she gets a child's share of the personalty absolutely; and one-half if there be no child.
The superiority of the Missouri system of administration over the English system (before the Probate Court Act in 1858), is thus described by Judge Wagner, in the case of Pearce vs. Calhoun, 59 Mo., 271, 274: "In the recent case of Tetterington vs. Hooker (58 Mo., 593), the opinion was expressed that the simple yet effective provisions of our administration law, whereby the whole estate of a deceased, both real and personal, is subjected to the payment of his debts, were designed to supersede the cumbrous machinery of the common law, and afford an ample and complete remedy in themselves. Our Pro- bate Courts were established with extensive powers and jurisdictions, for the purpose of doing everything necessary to the full and final administration of an estate. Botlı real and personal property are under their control for the payment of debts. They possess about the same powers formerly exercised in England by the Ecclesiastical and Chancery Courts. They are authorized to collect the assets of the deceased, to allow claims, to direct their payment, and to subject the realty to sale where there is a deficiency of per- sonal property to satisfy creditors, and to make distribution to the parties entitled thereto, and, in general, to do everything essential to the final settlement of the affairs of the deceased, and the claims of creditors against the estate."
I may be allowed to close these remarks with a quotation from my work on "The American Law of Administration," § 384, having reference to that most important function of the administration law, which treats of the payment of debts of the deceased :
"It appears from the foregoing brief sketch of the common law applicable to the pay- ment of debts of deceased persons, that executors and administrators are thereby burdened with a grave responsibility, calling for close watchfulness and the exercise of enlightened judgment upon nice and often doubtful points arising upon demands or suits by creditors.
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
A mistake as to the proper plea to be made, or the line of defence to be adopted, or whether defence ought to be made at all, may be fraught with mischievous results, not only in the shape of costs and counsel fees, but entailing personal liability, even though there be no assets, or assets not sufficient, to meet the judgment rendered. It has also been remarked, that the highly artificial and perplexing system of the common law has been supplanted in most States by statutory regulations, promoting by their simplicity and directness the safe, speedy and inexpensive settlement of estates, particularly in the matter of paying debts. The power conferred upon Probate Courts, in many States, to apportion among creditors the assets of the estate, after a sufficient period has elapsed to enable them to establish their claims, and barring them from further proceeding against the executor or administrator subsequently thereto, simply and efficiently secures creditors, heirs and distributees, and executors and administrators in their rights, doing away with the abstruse theory of plead- ing, and enabling the several issues that may arise in respect of the liability of the deceased, as well as of that of the personal representative, to be tried separately. Persons of ordinary intelligence and business capacity will generally find but little difficulty in complying with the duties imposed by law upon executors and administrators; and if confronted with ques- tions which they are not able readily to decide, touching the rights of creditors, or the course of their own duty, they should avail themselves of professional advice, at once to protect themselves and their bondsmen, and to secure the rights of creditors and distributees accord- ing to law. The compensation to counsel and practitioners in probate matters, for advice and services which may be necessary in the course of administration, is payable out of the estate or fund to be protected; and while most estates may be administered by competent business men without professional assistance, yet it would be wrong for any person to dis- pense with such assistance in any matter or question concerning which he is not perfectly sure of the requirement of the law. Instances, not rare, of loss and financial ruin to execut- ors and administrators, to their sureties, and to the creditors and distributees of the estate, attest the folly of parsimonious executors and administrators in saving counsel fees to the estates under their charge."
St. Louis, Mo.,
November, 1897.
ST. LOUIS COURT OF APPEALS.
BY HENRY W. BOND.
C OURTS constitute one of the three primary and co-ordinate divisions of political power. It is so ordained by the people-the source of all government-in the exer- cise of their natural right to appoint agencies for making, expounding and executing such laws as are designed to promote the good of all. A court is defined to be "a place where justice is administered." To this definition Sir William Blackstone adds, "the King is there in the person of his Judges, whose power is an emanation of the royal prerogative." This venerable fiction as to the origin of judicial authority has 110 counterpart under our institutions. American Judges derive all their power and authority from the limitations of the Law, and acknowledge no higher source. 1349169
The Constitution of 1875 created the St. Louis Court of Appeals as one of the depos- itaries of the judicial power of the State of Missouri. At that time the territorial jurisdic- tion of this Court was confined to the city of St. Louis and the counties of St. Louis, St. Charles, Lincoln and Warren. It was empowered to issue writs of liabeas corpus, quo warranto, mandamus, certiorari, and other original remedial writs, and to hear and deter- mine the same. It was vested with superintending control over all inferior courts of rec- ord in said district. Its decisions upon appeals and writs of error were final in all cases except " where the amount in dispute, exclusive of cost, exceeded the sum of twenty-five hundred dollars; in cases involving the construction of the Constitution of the United States or of this State; in cases where the validity of a treaty or a statute of, or authority exercised under the United States is drawn in question; in cases involving the construction of the revenue laws of this State, or the title to any office under this State; in cases involving the title to real estate; in cases where a county or other political subordinate officer of the State or any State officer is a party; and in all cases of felony."
In the foregoing excepted cases, appeals could be taken from the St. Louis Court of Appeals to the Supreme Court of the State. As thus constituted the St. Louis Court of Appeals was one of last resort in certain matters and of intermediate appeal in all others. The obvious purpose of its establishment was to relieve the over-crowded docket of the Supreme Court and to secure a speedier dispatch of the business of suitors. It was found in practice that these objects were not subserved, in so far as the constitution of this court permitted appeals and writs of error to be taken from its decisions to the Supreme Court, for in most of these cases the defeated party took advantage of the right of further appeal and thus postponed the ultimate decision of the controversy, by so much time as had been consumed in its appeal and hearing in the intermediate court. It was also experienced that the territorial jurisdiction of the St. Louis Court of Appeals was too limited to afford substantial relief to the Supreme Court by taking from its consideration that class of cases within the power of final disposition accorded to the St. Louis Court of Appeals by the
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
organic act. To remedy these evils a Constitutional amendment was adopted in 1884, which increased the territorial jurisdiction of the St. Louis Court of Appeals by making it co-ex- tensive with half of the State, allotting the remainder to the Kansas City Court of Appeals, vested witli a similar jurisdiction, and created by the same act. The amendment also made the Courts of Appeal, courts of last resort in all cases, by depriving them of any appellate jurisdiction of those causes or proceedings from which an appeal might have been taken to the Supreme Court from the decision of the St. Louis Court of Appeals prior to the adop- tion of the amendment. In order to secure harmony and uniformity in the decisions of the three courts, the amendment further provided, to-wit: "When any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the Judges therein sitting shall deem contrary to any previous decision of any one of said Courts of Appeals, or of the Supreme Court, the said Court of Appeals must, of its own motion, pend- ing the same term and not afterward, certify and transfer said cause or proceeding and the original transcript therein to the Supreme Court, and thereupon the Supreme Court must re-hear and determine said cause or proceeding, as in case of jurisdiction obtained by ordi- nary appellate process; and the last previous ruling of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals."
Between the date of its organization, January 1, 1876, and the above amendment, the St. Louis Court of Appeals delivered the opinions contained in the first sixteen volumes of the books now termed, by the act of the Legislature, "Missouri Appeal Reports." These contain its rulings upon the whole domain of the law, civil and criminal, irrespective of the amounts involved, or the nature of the questions presented, for during that period, as has been seen, its appellate jurisdiction, though final as to certain matters, and provisional as to the remainder, extended in the first instance to all causes determined in the Circuit Courts of a defined territory. These decisions have been received with unstinted commen- dation by the bench, the bar, and the text writers. Their merit grew out of the ability learning and fidelity of the Judges who occupied the bench of that Court during this era.
The first appointees inade under the power vested in the Governor when the court was established, were T. T. Gantt, R. A. Bakewell and E. A. Lewis. These gentlemen occu- pied a plane of primacy at the bar, and their selection was amply justified by their admirable performance of the multiform duties imposed by the organization of the court. The next change in the personnel of the bench was made by the substitution of Charles S. Hayden for Judge Gantt, which took place at the election held to fill the vacancies caused by the expiration of the term of the appointees of the Governor. In casting lots for the terms four, eight and twelve years, for which that election was held, Judge Hayden drew the short term. He was succeeded in 1880 by Seymour D. Thompson. Judge Bakewell, who drew the term of eight years, was succeeded in 1884 by Roderick E. Rombauer. No other changes took place until the resignation of E. A. Lewis, owing to failing health. This occasioned the appointment of Charles E. Peers for a term beginning March 12, 1888, and ending January 1, 1889, when he was succeeded by W. H. Biggs, of Pike County, at the first election held after the adoption of the Constitutional amendment. In 1892 at the conclusion of Judge Thomp- son's term, Henry W. Bond, of St. Louis, was elected. In 1896 Charles C. Bland, of Phelps County, was elected, and having the oldest license to practice law, is the Presiding Judge, under a provision to that effect in the Constitution of the State.
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ST. LOUIS COURT OF APPEALS.
The second epoch in the history of the Court begins with the adoption of the Constitu- tional amendment of 1884. From that date until the present time the labors of the two Courts of Appeals have added fifty-one to the sixteen previous volumes of Reports, making a total of sixty-seven at this writing. Of the Judges of this Court who have shared in this result, it is most befitting to say that their meed of praise is best expressed in their respective opinions; for after all, these are the supreme test of judicial worth. Neither commendation or criticism can exalt or lower the reputation of a judicial officer, unless justified by his utter- ances from the bench. If these are marked by learning and impartiality, they will merit and receive the applause of all lovers of legal science. If they fail in either respect, neither compliment or flattery can restore the confidence of a discriminating profession. For Judges, the highest terms of honor should be couched in impersonal language, and must be measured solely by the excellence of judicial workmanship. Of all men they are the surest architects of their own fortunes; for while Chance or Circumstance may prosper others, neither of these can give that knowledge and sense of justice which are the basic principles of judicial renown. Leaving the fame of the Judges of the St. Louis Court of Appeals to rest upon the monuments erected by theinselves and without more particular mention of their several mental characteristics and qualifications, let us turn to a brief inention of the extent and variety of their labors.
According to a report made to mie by the Clerk of this Court, the number of cases appealed to it during the last judicial year (Marclı 27, 1896-March 27, 1897), was 308. According to a similar report made by the Clerk of the Supreme Court, the number of appeals and writs of error to that court for the same time and from the same territory was 211. Assuming that the same proportion obtains in the territory allotted to the Kansas City Court of Appeals, we have as a result 616 cases brought to the two Courts of Appeals for review from the State at large, and 422 cases brought to the Supreme Court. When it is remembered that the St. Louis Court of Appeals invariably disposes of all cases on its docket prior to the adjournment for the summer vacations, it will doubtless be conceded that this showing presents a record for industry beyond just criticism, and that it also proves that the Supreme Court is relieved from the consideration of a large majority of the entire appeals and writs of error from a common territory, thus effecting the purpose had in view by the Constitutional amendment when it allotted the two Courts of Appeals the final deci- sion of so large a proportion of the litigation of the State.
The extent of the subjects of review in the Courts of Appeals, while limited as to amount and exclusive of certain questions, is yet sufficiently broad to embrace some of the most interesting and important departments of the law. They include, among others, the doctrines of the law merchant in the widest sense; the law of contracts (not involving title to real estate) ; the law of corporate powers, franchises and duty; the law of insurance; rights arising from personal relations and springing from torts, negligence and other actions sounding in damage; the application of equitable rights and remedies; the entire code of pleading and practicing and statutory construction, and many others. The bearing of a correct solution of these diverse questions on human life and affairs cannot be over-stated. Covering, as they do, the bulk of the transactions of ordinary business, the litigation arising out of them becomes a matter of prime concern to the people, and the promptitude with which this court has rendered its judgments has been no mean factor in the public respect and esteem which its labors have won. Confidence in the judiciary is one of the safe- guards of that government of laws which has come as a part of our priceless heritage of
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
freedom. This sentiment is deeply rooted in the inind and character of the American peo- ple. That it has survived the strain and difficulty of War and Party and is universally avowed to-day, is conclusive evidence that the men who sat in judgment in our courts have unflinchingly met the duty to judge with wisdom and righteousness and to measure their decrees by the "golden mnetewand of the law."
St. Louis, Mo.,
January, 1898.
ST. LOUIS LAW SCHOOL.
BY CHARLES NAGEL.
THE criticism has often been made that the legal profession is primarily responsible for the confessedly unsatisfactory condition of the law; and more especially for such short- comings as must be admitted to exist in its administration.
As to the former, the exaggeration, if not the entire fallacy of the charge, is manifest. For many years the strongest men in the profession have been active to simplify and to harmonize the laws of our country upon subjects which ought to admit of final legislative expression and definition. The fact that these efforts, even upon so simple and well under- stood subjects as promissory notes, etc., have met with almost universal discouragement at the hands of State Legislatures, is surprising, but not more so than the further fact that the profession, far from being discouraged, is still intent upon its purpose. Superficially speak- ing, no one could so well afford to permit the science to rest in confusion. Uncertainty and doubt make occasion for interpretation and advice, and the one obvious result of these, is employment for the lawyer. But considering the problem more seriously, the profes- sional man must appreciate, if anything more clearly than the layman, the pressing neces- sity for a more uniform and harmonious systein of law. While in one sense it may be important to have each State develop upon its own lines in reference to all new and unset- tled questions and problems, it is at least equally true that the great diversity of statutes upon subjects of comparative unimportance and simplicity, involves an altogether unneces- sary if not intolerable burden and expense to its citizens. Quick to see this, the lawyer has probably also recognized in this needless and thoughtless conflict between State Legis- latures, a dangerous incentive for the Federal Congress to assume to itself a larger authority for the regulation of general commercial interests. There can be no doubt that the failure of State Executives to enforce State laws for the protection of person and property, has been the most potent invitation for the interference of Federal authority. And it is not impossible that the unwillingness or inability of State Legislatures to come to a voluntary understanding upon subjects of common interest may, not unlike the failure of State Executives to afford protection, serve to pave the way for the very assumption of Federal authority, which the States profess to have been inost zealous to prevent. Whoever else may doubt the existence of this tendency, the thoughtful lawyer certainly does not; and whatever the accusations in the future, he may say for himself that he has earnestly sought to stem the tide.
Unfaltering as has been the lawyer's course in recommending and urging the improve- ment and correction of general legislation in this respect, it may be doubted whether as much can be said for him, as an active legislator. Much of the criticism of the profession is based upon the circumstance that so large a proportion of our legislative bodies is com- posed of members of the bar. Perhaps no complete answer is to be made to this attack;
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
but a fairly good defense for the profession may be found in an analysis of the work of those modern legislative assemblies from which the lawyer's advice has been more especially excluded. Even here the conclusion should probably be, that as the study of the law may be attributed to a more or less conscious or direct interest in broad questions of human right and wrong, so generally speaking, the desire to participate actively in the framing of laws may find its excuse in many instances in just as laudable a motive. And if the lawyer occupies higher ground as a general adviser than as a representative in the cause of wholesome legislation, the explanation is probably to be found in a universal political condition which is calculated to exclude from active participation those who ought by experience and train- ing to be best qualified to serve; and the solution of which condition really belongs to all citizens alike.
But if the defense be to this extent conceded, there will be the stronger insistence upon the second charge, that the lawyer is responsible for the many shortcomings in the imme- diate administration of justice. No doubt there is fairness in looking to every profession and occupation for the development and reputation of its particular calling. Perhaps it is true that the profession of the law is not held accountable for a disproportionate share of responsibility; and perhaps it is also true that this profession is not, relatively speaking, responding to its proportion of social obligation. Such questions are not easy to discuss, and are more difficult to determine. But without undertaking to do either, the following suggestions may be made in behalf of the profession.
The administration of justice is much more closely associated with the management of general political affairs, than is the pursuit of most other professions. The constant inter- ference of foreign forces is calculated to make the problem much more difficult, and must to that extent relieve the burden of sole responsibility. It is as easy for lawyers, as it is for doctors or other scientists, with reasonable certainty and unanimity to designate their recog- nized leaders. It is quite another thing for lawyers to have placed upon the bench the men who in their minds are best fitted for such distinction. And yet with the Judge rests in the largest measure the proper administration of justice. It is only fair, therefore, to say that to this extent the lawyer, at most, divides responsibility with all other citizens; for in many localities he is glad enough if his recommendation does not excite a prejudice against his choice. The only profession whose experience in its relation to and dependance upon gen- eral political conditions can be at all likened to his, is that of the teacher in the public schools, who will scarcely claim to have met with better success.
It would not seein an unfair conclusion, therefore, to say that really the one special and distinct responsibility of the lawyer to society begins and ends with his education and con- duct as an active member of the bar. It would serve no purpose to discuss how far, com- pared to other professions and callings, he has met his obligation. It will be readily con- ceded on all sides that the general training of the profession is very far from what it ought to be. This inuch will be admitted by the best as well as the least equipped. The practical question now is, not so much what has been done, but what is being done to improve the existing situation. Men of genius have at all times and under all conditions found the ways and means for training and education, if not culture. Hamilton without the aid of schooling in the modern sense became a great financier, a distinguished lawyer, and a famous statesman. Marshall might not have been as well equipped to successfully grapple with the all-important problems in the development of our Constitutional history, had his training been exclusively that of the school. Similar things might be said of many
EDWARD
ELIC
BISHO
PAULF
COSTE
CHAS P JOHN 5
JACOB K
JAMES O BROADHEAD
RE ROMBAUER
WMS CURTIS . DEAN
A.M.THAYER
CHARLES NAGEL
LONBERGER
FN. JUDSON
F.A. WISLIZENUS
P.TAYLOR
FAN
LEE
SALE
BR
FACULTY ST. LOUIS LAW SCHOOL.
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ST. LOUIS LAW SCHOOL.
of the truly great figures in our history, and yet it is accepted now that common justice to the individual as well as the interest of the State at large, make the opportunity for thorough schooling essential. The aim is to make the competition with transcendant ability and genius more easy, and to establish the equality of opportunity as far as inay be. Broadly speaking, the best that can be said of a large part of the past in respect to the lawyer, is that he at all times was ready to extend to the willing student every advantage that experience and training in an office could afford. The successful lawyer was always as generous in offering every facility to the young aspirant, as he was awkward in availing himself of such help and labor as the beginner might have been able and was always willing to give in return. In this the lack of thorough training manifested itself in the work of the leaders themselves; and convincing proof was thus furnished that the entire system stood in need of something better than had been enjoyed.
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