Black v. City Nat. Bank & Trust Co. of Kansas City

• Decision Date: 09 February 1959
• Docket Number: No. 2,No. 46746,46746,2
• Citation: 321 S.W.2d 477
• Parties: Francis Marion BLACK, Appellant, v. THE CITY NATIONAL BANK AND TRUST COMPANY of Kansas City, Executor of the Estate of Arthur Geiger Black, Deceased, Respondent
• Court: Missouri Supreme Court

Page 477

321 S.W.2d 477

Francis Marion BLACK, Appellant, v. THE CITY NATIONAL BANK AND TRUST COMPANY of Kansas City Executor of the Estate of Arthur Geiger Black Deceased, Respondent.

No. 46746.

Supreme Court of Missouri, Division No. 2.

Feb. 9, 1959 Motion to Transfer to Court En Banc. Denied March 9, 1959.

Francis Marion Black, appellant, pro se.

Fred A. Murdock, Johnson, Lucas, Bush & Gibson, Kansas City, for respondent, City National Bank & Trust Co. of Kansas City, Executor of the estate of Arthur Geiger Black, deceased.

STOCKARD, Commissioner.

This is an appeal from the judgment of the circuit court of Jackson County dismissing appellant's petition to contest the will of Arthur Geiger Black (hereafter referred to as testator). Jurisdiction is in this court because the interest of appellant as an heir at law, if the will be set aside, exceeds $7,500.

Testator's will was admitted to probate by the probate court of Jackson County on September 12, 1955, and The City National Bank and Trust Company of Kansas City, respondent herein, was appointed executor, On September 6, 1956, the probate court of Jackson County received through the mail from appellant, acting pro se, a document purporting to be a petition to contest testator's will on the grounds of mental incapacity and undue influence. This document did not name respondent or any of the devisees or legatees as defendants. For the purpose of our further discussion we shall assume, but we do not decide, that if this document had been filed in the circuit court it stated a cause of action to contest testator's will, or at least was sufficient to be amended to state such a cause of action. The precise action taken by the probate court in respect to this document is not clearly indicated by the transcript, but it appears that on the day it was received it was mailed back to appellant with a letter stating that the probate court had no jurisdiction over a suit to contest a will and that such jurisdiction was in the circuit court.

On January 25, 1957, again acting pro se, appellant sent by mail a petition to the circuit court of Jackson County in which he requested the court to issue 'a temporary restraining order' restraining the respondent 'from making any further disposition of property in the will of Arthur Gieger Black.' The basis stated for this request was that appellant 'is unable, at this time, to be present, or have representative present to protect his interests at distribution of property and will be unable to be present or have authorized representative present for a period of at least ninety (90) days.' We note at this point that the transcript shows that at all times here material appellant was confined in a Texas penal institution.

On February 8 and again on April 3, 1957, appellant, still acting pro se, sent to the circuit court of Jackson County by mail a document purporting to be a petition to contest testator's will on the grounds of mental incapacity on the part of the and undue influence on the part of the principal legatees in the will. There is no showing if service was had on respondent, the only defendant named in the petitions. However, on August 23, 1957, respondent filed a motion to dismiss the petition on the ground that it was filed in the circuit court more than one year after the will of testator was admitted to probate. At the hearing on this motion appellant was represented by counsel, and on November 20, 1957, the trial judge entered a judgment dismissing appellant's petition. Appellant's counsel withdrew shortly thereafter, and appellant has attempted to perfect this appeal without the aid of counsel.

Testator's will was probated before the effective date of the present probate code. Therefore, by reason of Section 1 of House Bill 30, Laws of Missouri 1955, p. 390, appellant was authorized to contest the will of testator pursuant to the provisions of Section 468.580, RSMo 1949, V.A.M.S. c. 475 Appendix, now repealed, which in its parts here material, is as follows:

'If any person interested in the probate of any will shall appear within one year after the date of the probate or rejection thereof, and, by petition to the circuit court of the county, 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 of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court; * * *.'

Section 468.600 RSMo 1949, V.A.M.S. c. 475 Appendix, now repealed but applicable to this case, is as follows:

'If no person shall appear within the time aforesaid, then probate or rejection of such will shall be binding, saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed.'

There is no contention that appellant filed any petition to contest the validity of the testator's will in the circuit court of Jackson County within one year after the date of the probate of testator's will, and there is no contention that appellant is an infant or that he is a person of unsound mind. Therefore, the action of the trial court in dismissing the petition was unquestionably correct unless the filing by appellant in the probate court of Jackson County of the purported petition to contest testator's will served to toll the running of the one-year period provided for in Section 468.580, supra, or unless the said one-year period is tolled because appellant was and is imprisoned.

The right of an interested party to contest a will is statutory and can be exercised only as provided by statute. State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73. Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935, 129 A.L.R. 316; State ex rel. Muth v. Buzard, 356 Mo. 1149, 205 S.W.2d 538; Davis v. Davis, Mo.Sup., 252 S.W.2d 521. Section 468.580, supra, provides that within the one-year period the interested party shall by petition to the circuit court of the county, contest the validity of the will, and in Green v. Ferguson, Mo.App. 184 S.W.2d 790, it was held that the suit to contest the will had to be 'commenced' or 'instituted' within the one-year period in the manner prescribed by Section 506.110 RSMo 1949, V.A.M.S. This section provides that suits may be instituted in courts of record, except when otherwise provided by statute, either '(1) By filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause or cause of action, and the remedy sought, and by the voluntary appearance of the adverse party thereto; or (2) By filing such petition is such office, and suing out thereon a writ of summons against the person or of attachment against the property of the defendant' (emphasis added). The 'proper' and only court in which a will contest suit may be filed is the circuit court in the county where the will is sought to be probated. Callahan v. Huhlman, ...