Blatt v. Haile, 44897

• Decision Date: 14 May 1956
• Docket Number: No. 2,No. 44897,44897,2
• Citation: 291 S.W.2d 85
• Parties: Marjorie Haile BLATT, Plaintiff-Appellant, v. Harvey C. HAILE, as Executor of the Estate of Oscar L. Haile, Deceased, Harvey C. Haile, Individuaily, Jessamine Haile Geis, Ruth Garner, Annie L. Deardorff, Myrtle Castleman and Josephine H. Mueller, Defendants-Respondents
• Court: Missouri Supreme Court

Page 85

291 S.W.2d 85

Marjorie Haile BLATT, Plaintiff-Appellant, v. Harvey C. HAILE, as Executor of the Estate of Oscar L Haile, Deceased, Harvey C. Haile, Individuaily, Jessamine Haile Geis, Ruth Garner, Annie L. Deardorff, Myrtle Castleman and Josephine H. Mueller, Defendants-Respondents.

No. 44897.

Supreme Court of Missouri, Division No. 2.

May 14, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 11, 1956.

Otto R. Erker, Harry R. Stocker, Kenneth F. Summers, St. Louis, W. Thomas Coghill, Jr., Farmington, for appellant.

Roberts & Roberts, J. Richard Roberts, Cayce & Manley, R. B. Manley, Farmington, for respondents Harvey C. Haile, as executor of estate of Oscar L. Haile deceased, Harvey C. Haile individually, Jessamine Haile Geis, and Myrtle Castleman.

BARRETT, Commissioner.

This is an action to contest the will of Mr. Oscar L. Haile who died on February 20, 1953. The suit, alleging the testator's mental incapacity and undue influence by certain beneficiaries, was filed in the Circuit Court of St. Francois County on February 10, 1954, during the February 1954 term of that court. Thereafter all of the defendants, save one, were duly served with process or filed separate answers. On February 8, 1955, the executors, who are the two principal beneficiaries, and another defendant filed a motion to dismiss the action for the reason that two terms of court had passed, V.A.M.S. Secs. 478.203, 478.293, and one of the parties defendant, Annie L. Deardorff, had not been served with process as required by the statute authorizing the contest of wills. The trial court heard the motion, found that service of process had not been had on all the parties 'not later than the end of the second term of the circuit court following the term of said court at which said petition was filed' and that 'plaintiff has failed to show good cause for failure to secure and complete said service' and, therefore, pursuant to the statute, V.A.M.S. Sec. 468.580, the court dismissed the plaintiff's petition with prejudice. The plaintiff and sole contestant has appealed from the order of dismissal.

The factual background and relationship of the parties, according to the allegations of the petition, is that Mr. Haile was eighty-eight years old when he executed his will on March 14, 1951, in which he disposed of real and personal property of the value of $261,000. He was ninety years old and a widower when he died on February 20, 1953. Mr. Haile had had five children but two of them predeceased him and left no children or descendants. One son, Dr. Leon Haile, who likewise predeceased Mr. Haile, left two children, the plaintiff, Marjorie Haile Blatt, and her sister Josephine H. Mueller, who is a defendant in this action. Two children, Harvey C. Haile and Jessamine Haile Geis, survived their father and they are the executors of his will and defendants in this action. Should the plaintiff granddaughter succeed in setting aside the will the would, as an heir, receive about $40,000.

In his will Mr. Haile provided for the sale of his abstract and loan company to a 'faithful' assistant for the sum of $5,000. He did not mention his deceased children but he gave each of his granddaughters, the plaintiff Marjorie Blatt and the defendant Josephine Mueller, the sum of $100. He gave his wife's sister, Myrtle Castleman, and his wife's niece, Annie L. Deardorff, $500 each. The residue of his property he gave to his surviving son and daughter, the executors and defendants, Harvey C. Haile and Jessamine Haile Geis.

As stated, after the passage of two terms of court after the filing of the petition, the son and daughter, as executors and as the two principal beneficiaries, and his wife's sister, Mrs. Castleman, joined in filing a motion to dismiss the petition for the reason that timely service of process had not been had upon one of the defendants, the wife's niece, Annie L. Deardorff. When the motion was called for hearing on March 4, 1955, counsel for the plaintiff and counsel for the defendants, upon inquiry from the court, announced that they were ready to take up the motion. Thereupon, the movants, 'to sustain the issues in their behalf,' offered the following evidence and admissions by plaintiff's counsel: Mr. Haile's death, the granting of letters testamentary in the Probate Court of St. Francois County and the institution of this suit on February 10, 1954, were admitted. The letters testamentary listed Annie L. Deardorff, a niece, with an address of Portland, Oregon. The petition to contest the will was signed by a lawyer who is still an attorney of record in the cause. After being served with notice of the motion to dismiss, however, he took two other lawyers into the case. On February 11, 1954, the deputy circuit clerk wrote the lawyer a letter in which she acknowledged receipt of the petition and informed him that it had been filed on the day of receipt, February 10, 1954. In the letter she specifically asked for 'some additional information regarding addresses of part of the defendants in order for service to be had on them. Please give us the addresses of defendants Jessamine Haile Geis, Annie L. Deardorff, Myrtle Castleman and Josephine H. Mueller. Summons have already been issued on the others.' On February 18, 1954, the lawyer answered the clerk's letter and gave the precise addresses of three of the defendants. As to the fourth, he said, 'I do not know the present whereabouts of Annie L. Deardorff.' On February 27, 1954, the circuit clerk again wrote the lawyer and informed him that 'Summons' have been issued on all defendants in the above entitled cause with the exception of Jessamine Haile Geis and Annie L. Deardorff. Since defendant Geis lives out of state it will be necessary that we obtain service by mail. We are therefore enclosing an affidavit for service by mail which it will be necessary that you sign. Please sign on the line marked with the red check mark and return to us. The summons and copy of petition will then be sent by registered mail to defendant Geis. According to plaintiff, the present whereabouts of defendant Deardorff is unknown. You will find enclosed an affidavit for service by publication. This should be signed by both plaintiff and attorney and returned to this office. Also enclosed is a copy of the order of publication of notice. If you would like to make any changes in the order please do so, then return same to us and we will complete necessary procedure of publication. Also give us the name of the newspaper in which you desire to have the publication order published. The St. Francois County newspapers are, The Farmington Press, The Farmington News, the Lead Belt News, The St. Francois County Journal and The Bonne Terre Register. If you desire any further information in this matter, or if we can be of any further service to you, please let us know.' In response to this letter plaintiff's counsel executed the affidavit for service by mail upon Mrs. Geis, returned the affidavit to the clerk, and service was accordingly had upon Mrs. Geis. The lawyer signed the affidavit for service by publication on Annie L. Deardorff and on March 4, 1954, his client executed the affidavit before a notary public in Baltimore, Maryland, but the affidavit was not returned to or filed with the circuit clerk until February 21, 1955, which was thirteen days after the filing of the motion to dismiss. It was admitted that the affidavit for service by publication was in plaintiff's counsel's 'hands' from February 28, 1954, until February 21, 1955, and there was no request for summons, order of publication, or for an alias summons prior to February 21, 1955. Counsel for defendants then said, 'That is all, your Honor, on the part of the movant.'

Whereupon, instead of offering any evidence or requesting any admissions from movants' counsel, one of plaintiff's counsel said, 'If your Honor, please, I would like to make an address to the court here on the first phase of our opposition to the defendants' motion to dismiss, and I would like permission for * * * my associate, to give the...