Gruender v. Frank
| Decision Date | 31 May 1916 |
| Citation | 186 S.W. 1004,267 Mo. 713 |
| Parties | AUGALA GRUENDER et al. v. ELIZABETH FRANK et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. John M. Williams, Judge.
Reversed and remanded.
Gove & Davidson and Pope & Lohman for appellants.
(1) The court erred in not giving the instructions asked by defendants in the nature of a demurrer to the evidence, for the reason that the petition is fatally defective in failing to allege that plaintiffs were interested in the disposition or devolution of the estate of deceased, and no evidence was given or offered to show such interest. Borland on Wills (Enlarged Ed.), sec. 74; R. S. 1909, sec. 555; State ex rel. v. McQuillin, 246 Mo. 689; Lilly v Tobbein, 103 Mo. 477; Church v. Tobbein, 82 Mo 418; Hans v. Holler, 165 Mo. 47; Stowe v Stowe, 140 Mo. 594; Wells v. Wells, 144 Mo. 198; Kishman v. Scott, 166 Mo. 215; Vaile v. Sprague, 179 Mo. 393; Watson v. Anderson, 146 Mo. 333; Eddy v. Park, 31 Mo. 518; Stewart v. Coshon, 238 Mo. 662; Kelley's Probate Guide (4 Ed.), sec. 86, p. 74, ch. 10. (2) The petition fails to state facts sufficient to constitute a cause of action. Pier v. Heinrichhoffer, 52 Mo. 333; Scott v. Rombard, 67 Mo. 289; Christian v. Ins. Co., 143 Mo. 460; Chitty v. Railroad, 148 Mo. 64; Land v. Live Stock Co., 163 Mo. 342. (3) All interested parties must be before the court in a contested will case, otherwise the case will be dismissed. Eddy v. Park, 31 Mo. 518; Wells v. Wells, 144 Mo. 198; Kishman v. Scott, 166 Mo. 215; Vaile v. Sprague, 179 Mo. 393; Watson v. Anderson, 146 Mo. 333; Scott v. Rombard, 67 Mo. 289; Land v. Live Stock Co., 163 Mo. 342.
Irwin & Peters and D. F. Calfee for respondents.
(1) Proceedings in reference to contest of a will are proceedings in rem. The heirs at law and devisees are made nominal parties, but the proceeding is ex parte. Garvin's Admr. v. Williams, 50 Mo. 212; Vaile v. Sprague, 179 Mo. 396. In this suit plaintiffs do not seek to establish any right in themselves. The action is in the nature of a proceeding in rem and any question as to the interest or lack of interest of plaintiffs, relates only to their legal capacity, or incapacity, to sue. Any objection therefore, as to plaintiffs' supposed lack of interest, if such lack of interest appeared on the face of the petition, should have been taken by demurrer; and if it did not appear on the face of the petition, the question should have been raised by answer. Defendants having failed to raise the question by either answer or demurrer, the objection is waived. R. S. 1909, sec. 1804. Appellants contend that plaintiffs' lack of interest (or capacity to maintain the suit), if there was any lack of interest, appeared on the face of the petition; this issue could have been raised only by special demurrer, and appellants having failed to raise it in this manner, the question of plaintiffs' interest was not in issue and it was not necessary for plaintiffs to introduce any evidence as to such interest. Baxter v. Transit Co., 198 Mo. 1. Want of legal capacity to sue and the objection that the action is not brought in the name of the real party in interest is waived where the objection is not urged by demurrer where apparent on the face of the complaint and by answer where not so apparent. 31 Cyc. 737. (2) There was not a total failure to allege plaintiffs' interest; such interest was shown by the petition. The body of the petition states that Rev. Gruender left surviving him, as his heirs, certain persons, naming them. The caption shows that plaintiffs were the heirs at law of three of these persons, and the other one of the four was made a party defendant. A pleading must be construed as an entirety, including the caption. 31 Cyc. 83; McCloskey v. Strickland, 7 Iowa, 259. And especially, after verdict, resort may be had to the caption to show interest, or capacity, on the part of plaintiff, where by reasonable intendment a sufficient cause of action can be made out. State ex rel. v. Crow, 8 Mo.App. 596; 31 Cyc. 82; Goode v. Coal Co., 167 Mo.App. 173. If defendants desired that the averments of plaintiffs' petition should be made more definite and certain, the proper mode of correction was motion before the trial. Pomeroy's Code Remedies, 596. (3) Admitting that the allegation in plaintiffs' petition, as to their interest, was defective, such defect was cured by the verdict. R. S. 1909, sec. 2119. By pleading to the merits, defendants waived all objections to mere formal defects; the only objection they can raise in this court is, that the petition, when taken altogether, fails to state a cause of action; not that a cause of action is defectively stated. Seekinger v. Mfg. Co., 129 Mo. 598; Reineman v. Larkin, 222 Mo. 172. (4) If the question of the pecuniary interest of the petitioners in a proceeding for the revocation of the probate of a will is not raised before the surrogate, it will not be considered on appeal from a judgment revoking such probate. In re Liddington's Will, 4 N.Y.S. 648; Thompson v. Farr, 1 Spear's L. (S. C.) 100; In re Robinson, 106 Cal. 496. (5) Plaintiffs' statement that they were the heirs at law of three of the persons named in the body of the petition as the surviving heirs at law of Rev. Gruender at the time of his death, is a sufficient allegation that plaintiffs would be entitled to share in the distribution of the estate in case of Rev. Gruender's intestacy, and is therefore a sufficient allegation of such interest in plaintiffs as enabled them to maintain this suit. Especially is this true after verdict, the petition being aided by all reasonable inferences and intendments. An heir is one on whom the law casts an estate upon the death of the ancestor. Desloge v. Tucker, 196 Mo. 599; Brown v. Bank, 66 Mo.App. 431. The term "heirs at law," when used with respect to personal property, may properly be regarded as meaning next of kin. Train v. Davis, 98 N.Y.S. 820. An heir at law is one who succeeds to the estate of a deceased person. McKinney v. Stewart, 5 Kan. 394; 4 Words and Phrases, 3265.
Revelle, J., not sitting.
This is a suit to set aside the will of Rev. John Gruender, deceased.
From a verdict and judgment revoking the will, upon trial in the circuit court of Cole County, defendants have duly appealed to this court.
The case was argued and submitted at the April (1915) term of this court, and was then assigned to the late lamented Judge Brown. His untimely death intervening necessitated a reassignment of the case which was recently done. Hence the delay in delivering an opinion in the case.
The conclusion that we have reached in the case renders it unnecessary that we should burden this opinion with a detailed statement of the facts disclosed by the somewhat voluminous record in the case, but we shall confine the statement to such facts only as shall be necessary to a determination of the case upon this appeal.
That portion of the caption of the petition describing the plaintiffs was as follows:
The petition contained the following allegation:
"Plaintiffs for their cause of action say that John Gruender died testate at the county of Cole and State of Missouri on the 20th day of March, 1909, leaving surviving him as his heirs at law, Joseph Gruender, Lissette Beller, Antoinette Amelunsen and Ignatz Gruender."
There was no further allegation in the petition as to the interest of plaintiffs in the estate of the deceased in the event his will should be revoked.
Neither was there any proof offered at the trial to show that the plaintiffs or either of them would share in the distribution of the testator's estate in the event the will should be set aside.
Appellants, seeking a reversal of the judgment below, urge among other grounds the following:
(1) That there was no evidence introduced tending to show that the plaintiffs or any of them would share in the distribution of decedent's estate if the will were revoked and that, therefore, the court erred in overruling the defendant's demurrer to the evidence which was offered at the close of all the evidence.
(2) That the petition fails to state facts sufficient to constitute a cause of action in that the petition does not allege sufficient facts to show that the plaintiffs were interested in the probate of said will.
I. In this State, a suit to contest a will is a statutory proceeding (Sec. 555, R. S. 1909), and the statute requires the contestant to be a person interested in the probate of the will. The interest required by said statute was defined by Court in Banc in the case of State ex rel. v. McQuillin, 246 Mo. 674, l. c. 691-692, 152 S.W. 341, to be "a financial interest in the estate and one which would be benefited by setting the will aside."
Since it is necessary that the plaintiff have such an interest to enable him to institute the suit to contest the validity of the will, it, necessarily, follows, we think, that such facts must be alleged and proven upon the trial unless admitted by the pleadings of the proponent.
It has long been the rule in this State that in statutory actions "the party suing must bring himself strictly within the statutory requirements necessary to confer the right [of action], and this must appear in his petition; otherwise, it shows no cause of action." [Barker v. Hannibal & St. Joseph Ry. Co., 91 Mo. 86, 14 S.W. 280...
To continue reading
Request your trial