Lilly v. Tobbein

• Decision Date: 23 February 1891
• Citation: 15 S.W. 618
• Parties: LILLY et al. v. TOBBEIN et al.
• Court: Missouri Supreme Court

15 S.W. 618

LILLY et al. v. TOBBEIN et al.

Supreme Court of Missouri, Division No. 1.

February 23, 1891.

WILLS — ESTABLISHMENT — PARTIES — AMENDMENT — LIMITATIONS.

1. Where probate is refused of a will which devises land to an unincorporated church association, and the association gets itself incorporated, and, as a corporation, sues to establish the will, a judgment that such corporation was not a party in interest and could not maintain the suit will not bar a subsequent action to establish the will, brought by members of the unincorporated association in behalf of themselves and all others.

2. Under the Missouri statute providing that on a proceeding to establish a will an issue shall be made up whether the writing produced be the will of the testator or not, the question whether a devise therein to an unincorporated association is valid is foreign to the issue and cannot be determined.

3. This proceeding to establish a will, while technically at law, is so far equitable in its nature that, where an unincorporated association is a devisee under such will, some of its members may sue, on behalf of all, to establish it.

4. Where suit is brought in the name of the association itself, which is incompetent to sue, it is proper to allow an amendment substituting as plaintiffs certain of its members, under Rev. St. Mo. §§ 3566, 3567, which provides that, where a complete determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in.

5. Such amendment introduces no new cause of action, and relates back to the commencement of the suit for the purpose of preventing the bar of the statute of limitations.

Affirming 13 S. W. Rep. 1060.

On rehearing.

Wm. F. Woerner, for appellants. Alexander Graves and Mansur & McLaughlin, for respondents.

BLACK, J.

This case is now before us on rehearing. It was stated in the abstracts on both sides on the former hearing that the present suit was commenced by an incorporated association, and we decided the case on that theory of fact. It now transpires that it was commenced by an unincorporated association. While the error in this statement of fact affects but one or two questions, still it is deemed best to substitute this opinion for the one heretofore filed. Hett Tobbein died on the 25th September, 1879, leaving a wife but no living children. He left a will whereby he devised all of his property, real and personal, to his wife, Catharine, for her natural life, and at her death the one-half to go to her heirs, "and the other and remaining half of my said estate I give and bequeath to the Catholic Church at the city of Lexington, in the state of Missouri." The will goes on to make provision for the payment of the debts, and then declares that the nominated executor, William A. Donaldson, shall, after the death of the wife, sell at public auction all of the real and personal property, and "divide the proceeds equally between the heirs of my said wife and the said Catholic Church at Lexington, according to the provisions herein aforesaid." The nominated executor died prior to the death of the testator. The will was presented to the probate court of Caldwell county for proof and probate, but that court rejected the same on the 26th December, 1879. The estate of the deceased was then ordered into the hands of the public administrator. At and prior to the last-mentioned date the church was simply an unincorporated religious society. It was thereafter incorporated under the general laws of this state, and by its incorporated name commenced a suit in the Caldwell circuit court to establish the rejected will. That suit resulted in a judgment probating the will, but on the appeal prosecuted by the defendants the judgment was reversed without remanding the cause for new trial. 82 Mo. 418. Thereafter the church society, as an unincorporated association, brought this suit for the purpose of establishing the same will. The venue of the cause was changed to Jackson county, where a trial was had on an amended petition, resulting in a judgment that the instrument was the last will of Tobbein, to reverse which the defendants prosecute this appeal. To the original petition filed in this cause the defendants demurred, on the ground, among others, that the unincorporated church society had no power or legal capacity to sue. The demurrer was sustained, and thereupon an amended petition was filed, adding as plaintiffs John L. Lilly, Michael Howell, Patrick O'Malley, and Thomas Clark, members of and alleged to be trustees of the church. These persons sue for themselves and all other members of the association. The amended petition also names 100 or more persons, members of the church, as additional plaintiffs. To this amended petition the defendants demurred, and this demurrer was sustained as to the unincorporated association, but overruled as to the new plaintiffs brought in by the amended petition. The will is in due form, was properly signed by the testator, and was duly attested. It was admitted on the trial that the testator was, at the time of making the will, of sound and disposing mind, and that it was his own free act. The widow, it may be added, renounced the will, and elected to take under the law.

1. A point made in the trial court and urged here is that the judgment of this court in the former case is conclusive upon these plaintiffs, and that they are barred and precluded from again bringing forward the instrument for the purpose of having it established as the will of Tobbein. The incorporated society was the sole plaintiff in that case, and, as the corporation was not organized until after the death of the testator, the conclusion seems to have been reached that the corporation had no such interest in the probate of the will as would give it a standing in court as the proponent. The judgment was therefore simply one of reversal. Where the final judgment is one upon the merits it must be a judgment to the effect that the paper writing produced is, or that it is not, the will of the testator. This court gave no such a judgment. There was no judgment at all on the issue of will or no will. The judgment of reversal simply said the then plaintiff had no right to prosecute the suit, because it was not a party in interest. The final judgment in that case left no impediment in the way of a new suit by any one having the requisite interest.

2. The Catholic Church at Lexington was, at the death of the testator, an unincorporated association and not a legal entity. Ordinarily there must be a devisee in existence capable of taking, otherwise the devise is of no validity. But it is well-settled law that a charitable devise or bequest will be upheld and enforced, though it is made to a voluntary unincorporated association. 2 Perry, Trusts, (3d Ed.) § 730; Schmidt v. Hess, 60 Mo. 591. The defendants do not question the proposition just stated, but they do insist that this will fails to define, limit, or declare a charitable use. On the other hand, the plaintiffs insist that a devise to a designated church is ex vi termini a devise to charity. Many authorities are cited and arguments made on the one side and the other of these propositions. The statement of these issues of law present the inquiry whether the validity of the devise to the church can be properly determined in this suit, the object of which is to establish a rejected will. Under our law the will is first presented to the probate court to be proved and admitted to probate. The proceeding in that court is ex parte and without notice. The statute, however, provides that if any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and by a petition to the circuit court contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up whether the writing produced be the will...