Wells v. Wells
| Decision Date | 24 May 1898 |
| Citation | 45 S.W. 1095,144 Mo. 198 |
| Parties | Wells v. Wells et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Louisiana Court of Common Pleas. -- Hon. Reuben F. Roy Judge.
Reversed and remanded.
Clark & Dempsey, Sam Sparrow and J. D. Hostetter for appellants.
(1) All the beneficiaries should have been made parties. Eddie v Parke, Ex'r, 31 Mo. 513; Rogers v. Dively Adm'r, 51 Mo. 193; Garland v. Smith, 127 Mo. 580. (2) Berkley Wells should have been represented by a guardian ad litem. Neenan v. St. Joseph, 126 Mo. 89. (3) In this case the judgment was against Berkley Wells a minor defendant, who appeared neither by attorney nor guardian ad litem. Appellants challenged the propriety of this judgment by an appropriate motion in arrest. The judgment setting aside this will is clearly not good as to Berkley Wells. So that not only is the judgment appealed from, good as to some and invalid as to others because they were not made parties, but it presents another and more startling anomaly, of being good as to some who were parties to the suit, and invalid as to others who were also parties. Rush v. Rush, 19 Mo. 441; Neenan v. St. Joseph, 126 Mo. 95; Randals v. Wilson, 24 Mo. 76; Pomeroy v. Betts, 31 Mo. 419; Hulet v. Nugent, 71 Mo. 134; Ins. Co. v. Clover, 36 Mo. 392; Holton v. Towner, 81 Mo. 360; Copeland v. Yocum, 38 Mo. 249.
W. H. Morrow and Fagg & Ball for respondent.
(1) If it be true that all the parties in interest are not parties to this action, which respondent does not concede, it is equally true that if there is a defect of parties it is apparent from the pleadings and should have been taken advantage of by motion or demurrer, and will not be heard for the first time in the Supreme Court. Pike v. Martindale, 91 Mo. 268; Kellogg v. Malin, 62 Mo. 429; Butler v. Lawson, 72 Mo. 227; R. S. 1889, sec. 2447.
This is a proceeding under the statute to contest the validity of the will of Elizabeth J. Wells late of Pike county, which had been formally proved in the probate court. The will was executed on the twenty-ninth day of October, 1894, and the testatrix died in May following; at the age of fifty-six years. She was never married and died without issue, leaving neither father nor mother. The plaintiff William, and defendants James, Charles, Robert and George Wells, are her only surviving brothers, and Berkley Wells is the only child of her deceased brother John Wells. The will in contest is sought to be invalidated by her brother William Wells, on the ground of want of testamentary capacity and undue influence, alleged to have been exercised by defendants James and Charles Wells. Neither the wife of Charles Wells, nor the children of William, James, Charles, Robert and George Wells, all of whom are devisees under the will, nor Mr. Eaton the executor and trustee, were made parties. At the time suit was instituted and judgment rendered, Berkley Wells was a minor and no guardian ad litem was appointed by the court to represent him and protect his interest. There was a jury trial, resulting in a verdict and judgment setting aside the will. After unsuccessful motions for a new trial and in arrest, defendant brings the case here by appeal.
By the terms of the will testatrix gave Benjamin G. Patton, trustee, and his successor, two hundred and forty acres of land, situate in Pike county, worth $ 10 or $ 12 per acre, in trust for her brother Charles and his wife Mary, during their lives, and at their deaths, to their children absolutely, and the residue of her estate, including lands, money and personal property, to the children of her brothers William, James, Charles, Robert, George and John Wells, to be divided equally among them; the children of each of her surviving brothers to receive one share jointly, and her nephew Florence B. (called Berkley) Wells one full share; the executor being authorized to sell and convert the remaining portion of the estate into cash and divide the proceeds arising therefrom in the manner above stated. Benjamin G. Patton was also named as executor under the will.
The correctness of the judgment of the circuit court is challenged, first, on the grounds that at the time the judgment was rendered, defendant, Berkley Wells, was a minor and no guardian ad litem was appointed by the court to represent him. The statute provides that "after the commencement of a suit against an infant defendant and service of process upon him, the suit shall not be prosecuted against him any further until a guardian for such infant be appointed." No guardian having been appointed for Berkley Wells who was shown by the evidence to have been a minor at the time judgment was rendered, it was clearly improper under the statute, and rulings to that effect are frequent in this court. But it is insisted that even though the judgment is erroneous as to Berkley Wells such fact does not of itself vitiate the judgment as to the other defendants. This precise question arose for the first time in this State, and was decided in the negative in Rush v. Rush, 19 Mo. 441. That was a proceeding to contest the validity of a will. Two of the defendants were minors and appeared by attorney; judgment was entered against the other defendants, from which they appealed. The court, owing to the peculiar nature of the proceedings, held that the judgment must be treated as an entirety...
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