Wanstrath v. Kapel

• Decision Date: 05 November 1945
• Docket Number: 39338
• Citation: 190 S.W.2d 241,354 Mo. 565
• Parties: Gertrude Wanstrath v. John C. Kappel, Jr., et al., Defendants, George B. Wanstrath, Appellant
• Court: Missouri Supreme Court

190 S.W.2d 241

354 Mo. 565

Gertrude Wanstrath v. John C. Kappel, Jr., et al., Defendants, George B. Wanstrath, Appellant

No. 39338

Supreme Court of Missouri

November 5, 1945

Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.

Affirmed.

Lashly Lashly, Miller & Clifford for appellant George B Wanstrath.

(1) The circuit court erred in sustaining respondent's motion to strike from appellant's answer and cross bill the allegations relating to settlor's will and the relief prayed for with respect thereto. Because the allegations in appellant's answer and crossbill relating to said will and the relief prayed for with respect thereto, are germane to respondent's suit and necessary to do complete justice in one suit between all the parties and to adjust all the equities between them connected with the subject of the original bill. Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W.2d 611; Irwin v. Burgan, 325 Mo. 309, 28 S.W.2d 1017; 2 Bogert, Trust & Trustees, pp 1274-1275; Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49; Hollen v. Kepner, 297 Ill. 332, 130 N.E. 699; Queenan v. Mays, 90 F.2d 525. (2) Where, as here, a suit is properly instituted in a court of equity, under some of its recognized heads or subjects of jurisdiction, and the question of the construction of a will arises in determining the rights of the parties in connection with the relief sought, the court has the right and duty to construe the will. 69 C.J., sec. 1976, p. 859; 4 Page on Wills (Lifetime Ed., 1941), pp. 568-569, 582-583; Davidson v. Davidson, 226 Mo. 1, 125 S.W. 1143; Andre v. Andre, 288 Mo. 271, 232 S.W. 153; Neill v. Harris, 329 Mo. 357, 44 S.W.2d 625; Courtney v. Daniel, 124 Okla. 46, 253 P. 990; Peck v. Peck, 76 Wash. 548, 137 P. 137; Hiles v. Garrison, 70 N.J.Eq. 605, 62 A. 865. (3) The circuit court erred in sustaining respondent's motion to dismiss cause as to appellant George B. Wanstrath and to strike his answer and cross bill from files. Because only a party who is aggrieved may make a motion in regard to a pleading. No relief is sought in appellant's answer and cross bill as against the respondent, hence respondent is not aggrieved by anything that is alleged in or claimed to have been omitted from appellant's answer and cross bill. 49 C.J. 749. (4) A dismissal as to one of a number of defendants does not carry with it the dismissed defendant's claim for affirmative relief against a co-defendant. 27 C.J.S., p. 200. (5) Appellant's answer and cross bill alleged a cause of action for the relief sought therein, namely, that the declaration in trust be set aside in toto. 2 Bogert, Trust & Trustees, pp. 1274-1275; 65 C.J., pp. 332, 333; Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W.2d 611. (6) Respondent's motion to dismiss cause as to appellant (a defendant) and to strike said appellant's entire pleading will not lie upon the asserted ground that there is another action pending between the same parties for the same relief. State ex rel. Dunn v. Cowan, 231 Mo.App. 717, 105 S.W.2d 1009; 1 C.J.S., sec. 81, pp. 119-122; 42 C.J., sec. 154, p. 507; Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274. (7) A motion to strike an entire pleading of a party will not lie upon the ground that such party is not a necessary party to the action. 47 C.J., p. 166. (8) Appellant George B. Wanstrath was a necessary party to respondent's action. Kidd v. Schmidt, 345 Mo. 645, 136 S.W.2d 74; 30 C.J.S., pp. 575-576; Growney v. O'Donnell, 272 Mo. 167, 198 S.W. 863.

Daniel Bartlett and Thomas F. Muldoon for respondent.

(1) The issue between the respondent on the one hand and the trustees, executors and beneficiaries on the other was distinct and separate and the court could properly order a separate trial thereon. New Code of Civil Procedure, Sec. 847.97; New Code of Civil Procedure, Sec. 847.16, Sub-section (b). (2) Appellants' appeal is premature and was improperly allowed. 2 Am. Jur., sec. 27; Conrath v. Houchin, 226 Mo.App. 261, 34 S.W.2d 190; Ray v. Mo. Christian College, 93 S.W.2d 1030; Ford v. Ford, 24 S.W.2d 990. (3) The circuit court had power to proceed to determine the widow's rights. State ex rel. Rielfling v. Sale, 153 Mo.App. 273, 133 S.W. 119; State v. Ashworth, 346 Mo. 869, 143 S.W.2d 279.

OPINION

Clark, J.

This is an appeal by George B. Wanstrath from an order of the circuit court striking from the files his answer and cross bill and dismissing him as a party defendant in an equity suit brought by Gertrude Wanstrath.

Plaintiff alleged that she is the widow of George J. Wanstrath who died testate in 1943, leaving as his only heirs a son and daughter by a former marriage, the son being appellant George B. Wanstrath. That a few months before his death George J. Wanstrath, in contemplation of impending death, executed a trust indenture purporting to convey most of his personal property. That same was executed without consideration, without her knowledge and consent and with the fraudulent intent to deprive her of a child's share, to wit, one-third of her husband's personal estate. She named as defendants the trustees and beneficiaries in the trust, the executors of the will of George J. Wanstrath and also the appellant, George B. Wanstrath, who was not a beneficiary in the trust and who was disinherited by the will. Her petition asked that the trust be set aside as to her and she be adjudged the owner of one-third of the property covered by the trust indenture subject to one-third of the debts of the estate.

The various defendants filed answers, the answer and cross bill of appellant, George B. Wanstrath, alleging that the trust indenture is void as to the plaintiff, and for other reasons is void in toto. His cross bill asks that the will be construed to be inoperative as to the trust property, that the court set aside the trust and award him a one-third interest as an heir of his father.

Plaintiff first filed a motion to strike from appellant's cross bill the allegations relating to a construction of the will and purporting to show that appellant has an interest in the trust property. The court sustained the motion. Then plaintiff moved to strike out the entire cross bill of appellant and to dismiss the suit as to him on the ground that the remaining portions of his cross bill stated no grounds for relief, affirmative or otherwise, and for the further reason that appellant had filed a separate action seeking the same relief as in his original cross bill. From an order sustaining this motion George B. Wanstrath has appealed.

All the foregoing matters occurred prior to January 1, 1945, and are not governed by the new Code of Civil Procedure. [Session Acts 1943, p. 357, sec. 3.]

Respondent argues that appellant's appeal is premature and was improperly allowed, citing Conrath v. Houchin, 226 Mo.App. 261, 34 S.W.2d 190; Ray v. Missouri Christian College (Mo. App.), 93 S.W.2d 1030, and Ford v. Ford (Mo.), 24 S.W.2d 990.

Those cases and many others hold that there can be no appeal from a judgment unless it finally determines the issues as to all the parties. Undoubtedly that is the general rule in Missouri, but it is not applicable here for the following reasons. Appellant's cross bill was not a defense to plaintiff's petition nor did it seek any relief against her. It conceded that plaintiff is entitled to a one-third interest in the trust property for the reasons stated in her petition. Then it alleges that, for different reasons, the trust is void in toto and appellant is entitled to another and different one-third interest. Thus, the cross bill purports to set up a new cause of action, not against plaintiff, but against appellant's co-defendants. Therefore, if the cross bill was a proper pleading at the time it was filed, the order striking it from the files was a final, appealable judgment as to appellant and all other parties to the suit. [Hyer v. Baker (Mo.), 130 S.W.2d 516.]

It remains for us to determine whether the cross bill was a proper pleading prior to the effective date of our new Code of Civil Procedure.

On this point appellant cites the following Missouri cases: Merz v. Tower Grove Bank & Trust Company, 344 Mo. 1150, 130 S.W.2d 611; Irwin v. Burgan, 325 Mo. 309, 28 S.W.2d 1017; Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49.

The facts in the Merz case and in the instant case are similar but the trial procedure was essentially different. In each case a widow, stating grounds available only to a widow, asked to set aside a trust as to her interest only. On proof of such allegations the trust could be set aside as to the widow and left in full force as to all others. In each case a defendant answered admitting the right of the widow to cause the trust to be set aside as to her interest and then, by cross bill on different grounds, asked that the trust be set aside entirely. In the Merz case the cross bill was not attacked by demurrer, motion to strike or otherwise. True, in that case objection was made to the introduction of evidence in support of the cross bill and claim was made that the court was without jurisdiction to hear the cross bill for the alleged reason that an heir of a fraudulent grantor cannot sue to set aside such a conveyance. That was not a valid objection for, while want of consideration for the conveyance would not alone support the heir's suit, the other allegations as to mental incapacity, undue influence, or mistake, stated a cause of action. A court of equity certainly has jurisdiction to set aside an entire trust on such allegations in a suit by an heir if made in an original bill and we see no reason why it cannot do so upon a cross bill when no valid objection is made to raising the issue in that manner. In the Merz case the parties voluntarily...