Davis v. Davis

• Citation: 252 S.W.2d 521
• Decision Date: 10 November 1952
• Docket Number: No. 42611,No. 2,42611,2
• Parties: DAVIS v. DAVIS et al
• Court: United States State Supreme Court of Missouri

Page 521

252 S.W.2d 521

DAVIS v. DAVIS et al.

No. 42611.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1952.

N. Murry Edwards and Ninian M. Edwards, St. Louis, for appellant.

Cox, Cox & Cox, Harvey B. Cox, William A. Moffitt, Jr., and Alexander M. Goodman, St. Louis, for respondents Mrs. Clyde Ridley and others.

BOHLING, Commissioner.

Marie Davis instituted a proceeding to contest the will of Louegenia Wofford, deceased, in which Carrie Young, the sister and sole heir at law of Louegenia Wofford, deceased, intervened, and filed an answer and cross-petition. The main question is whether the administrator of the estate of Carrie Young, she having since died, can maintain the cross-petition filed by Carrie Young during her lifetime. The will of Louegenia Wofford disposed of real and personal property. The amount in dispute exceeds $7,500. Appellate jurisdiction is here.

This review is pending upon rehearing. An opinion by Ellison, J., was adopted upon original submission but a rehearing was granted. We think the conclusions previously reached were correct and we follow to a large extent the first opinion herein without the use of quotation marks.

Louegenia Wofford of St. Louis died March 20, 1944. She left two wills. Her will, dated May 18, 1943, was admitted to probate on April 8, 1944, and Marie Davis was appointed executrix of her estate. On April 11, 1944, a later will, dated October 30, 1943, was admitted to probate as the last will and testament of Louegenia Wofford, deceased. Mrs. Clyde Ridley was appointed executrix of said estate, and, according to the parties, the probate of the will of May 18, 1943, was set aside. Marie Davis was a beneficiary under both wills, but received a larger share of the estate under the will of May 18, 1943, and on May 15, 1944, she filed a petition to contest said will of October 30, 1943, on the grounds of undue influence and testatrix' mental incompetency.

Carrie Young was a sister of testatrix and her sole surviving heir at law. She was not a beneficiary under either of said wills, all devises and bequests being to the respondents--strangers in the blood. She was granted leave to become a party to the suit instituted by Marie Davis, and on October 4, 1944, filed an answer and cross-petition therein. Her answer, briefly, adopted the charges in said petition attacking the validity of the will of October 30, 1943, and denied the allegations of the petition supporting the will of May 18, 1943. In her cross-petition she attacked the validity of both wills, the will of May 18 and the will of October 30, 1943, on the grounds of undue influence and testatrix' mental incompetency.

Carrie Young died on May 5, 1945, intestate, leaving Henry Davis, her son by a prior marriage, as her sole heir at law. On July 28, 1945, the death of Carrie Young was suggested, and a motion was filed to revive the cause in the name of Henry Davis, administrator of the estate of Carrie Young, deceased, which said motion was sustained on August 16, 1946.

Thereafter, the joint motion of Mrs. Clyde Ridley, as an individual and as administratrix aforesaid, and Annie Williams, filed January 26, 1951, to dismiss said cross-petition of Carrie Young was sustained on March 27, 1951, and said cross-petition was dismissed with prejudice.

Unless matters later discussed change the result, the Missouri authorities mentioned in the next paragraph require the overruling of appellant's stated contentions that the trial court erred in dismissing the cross-petition of Carrie Young and erred in ruling that appellant, as administrator of the estate of Carrie Young, deceased, could not maintain her action or cross-petition attacking the two wills of Louegenia Wofford, deceased.

The trial court's order only sustained that portion of the motion which sought to strike Carrie Young's cross-petition. The right to contest a will is entirely statutory. Our statute permits 'any person interested in the probate of any will' to contest it within one year after the date of its probate. Section 468.580 RSMo 1949, V.A.M.S. The proceeding is in rem to determine the status of the paper writing, whether or not it is the will of the deceased. It is a right of action and not a property right. The interest of the contestant must exist at the time of the probating of the will. Carrie Young's right to contest the will of her sister was personal and died with her. It was neither assignable nor descendible. This question was considered at length and so ruled in Braeuel v. Reuther, 270 Mo. 603, 606-610, 193 S.W. 283, 284[4, 8], L.R.A.1918A, 444, Ann.Cas.1918B, 533; and Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 205[1-3], 139 S.W.2d 935, 936[1-4, 8], 129 A.L.R. 316, Annotation, 324. Our law was similarly construed by the U. S. Circuit Court in Thomson v. Butler, 8 Cir., 136 F.2d 644, 647[5, 6].

Appellant argues, among other things, that the contest of the will of May 18, 1943, must be adjudicated in addition to the contest of the will dated October 30, 1943. The probate courts have exclusive original jurisdiction over the probate or rejection of wills and the circuit courts have only derivative jurisdiction. The only judgment of the probate court in effect when the instant proceeding was instituted was the judgment admitting the will of October 30, 1943, to probate. Whether the will of May 18, 1943, is to probated or rejected as the last will and testament of testatrix in the event the will of October 30, 1943, be set aside is a matter for future determination. The circuit court, its jurisdiction being derivative, may not determine that issue in the first instance in this proceeding. Breeding v. Pack, Mo.Sup., 164 S.W.2d 929; Fletcher v. Ringo, Mo.Sup., 164 S.W.2d 904, 906. The Braeuel and Campbell cases, supra, and Smith v. Smith, 327 Mo. 632, 37 S.W.2d 902, 904[6, 7], do not sustain appellant's contention. They are to the effect that a will contest is not finally terminated by the death of the contestant; that the contest vacates the action of the probate court admitting the will to probate, transfers the issue of devisavit vel non to the circuit court and, in the event of the death of the contestants, that the proponents must establish the questioned will in solemn from. Fletcher v. Ringo, Mo.Sup., 164 S.W.2d 904, 906[3, 4]; Hogan v. Hinchey, 195 Mo. 527, 533, 94 S.W. 522...