Bosworth v. Sewell, 78033

CourtUnited States State Supreme Court of Missouri
Citation918 S.W.2d 773
Docket NumberNo. 78033,78033
PartiesCollis BOSWORTH, et al., Appellants, v. Minnie SEWELL, et al., Respondents.
Decision Date26 March 1996

Page 773

918 S.W.2d 773
Collis BOSWORTH, et al., Appellants,
Minnie SEWELL, et al., Respondents.
No. 78033.
Supreme Court of Missouri,
En Banc.
March 26, 1996.

Page 774

Appeal from the Circuit Court of Miller County; Honorable Mary A. Dickerson, Judge.

Francis Hanna, Kansas City, for appellants.

Kevin Schehr and David A. Yarger, Versailles, for respondents.

PRICE, Judge.

Heirs to an estate appeal the dismissal of their will contest action, claiming the failure of the personal representative to provide them actual notice of the probate of a will precludes the § 473.083.1, RSMo 1994, 1 six-month statutory bar. We find the Missouri probate code requires actual notice to heirs of a decedent and failure to give such notice precludes the statutory bar to any heir without knowledge of the administration of the estate while the estate is open. As to appellants Allen and Lomax, we overrule the motion to dismiss, reinstate the will contest, and remand this case for trial. As to appellant Bosworth, we affirm because he failed to allege he did not know of the administration of the estate.


George A. Welsh, decedent, died on April 21, 1994. On May 4, 1994, his will was admitted to probate. The application for letters testamentary listed only the names and addresses of the devisees under the will. The first notice of the will's probate was published on May 12, 1994. Respondents are the devisees and the executor of the will.

Page 775

On March 6, 1995, prior to the closing of the decedent's estate, appellant Collis Bosworth filed a petition to contest the will. Appellants Ralph E. Allen and Carroll K. Lomax moved to intervene. Apparently appellants will receive an intestate share of decedent's property if the will is declared invalid. 2 The circuit court sustained respondents' motion to dismiss because the will contest had not been brought within six months of the first publication of notice of the estate's administration, as required by § 473.083.1.

Appellants claim the § 473.083.1 bar is unconstitutional in light of Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (known or reasonably ascertainable creditors of decedent must receive mailed notice of probate of estate before claims are barred). We have exclusive jurisdiction over an appeal concerning the constitutional validity of a state statute. Mo. Const. art. V, § 3. However, because the Missouri probate code already mandates actual notice to heirs, we do not address Pope or the constitutionality of § 473.083. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 (Mo.banc 1982) (constitutional questions decided only when necessary to the disposition of case presented).


The process of probating a will begins with the application for letters testamentary. Under § 473.017, an application for letters shall state "the names, relationship to decedent, and residence addresses of the surviving spouse, heirs, devisees and legatees of the decedent." § 473.017.1(2). An "heir" is defined as those persons who are entitled to property by intestate succession if a decedent dies without a will. § 472.010(14). The statute requires the application to be as complete as possible. If the applicant believes there are other heirs or devisees whose names and addresses are unknown, the applicant must so state. § 473.017.1(2). If new information becomes available to the applicant, the applicant must promptly notify the court clerk in writing. § 473.017.2.

As soon as letters testamentary are issued, the court clerk is required to publish notice of the appointment of the personal representative in a newspaper for four consecutive weeks. § 473.033. The clerk must also "send a copy of the notice by ordinary mail to each heir and devisee whose name and address are shown on the application for letters or other records of the court." Id. Proof of publication and mailing of notice must be filed. Id. Therefore, if an applicant properly lists all heirs or devisees in the application for letters testamentary as required by § 473.017.1(2), they will receive actual notice of the probate proceedings.

The purpose of these statutory provisions is self-evident. The probate process is the opportunity for those individuals who have reason to challenge a will to present their claim. This can only be done, and the will can only be fairly validated, if those determined by law to be interested, "heirs", have notice of the proceeding.


Appellants are "heirs" and under § 473.017 their names and addresses should have been made available to the probate division. Respondent's application for letters, however, did not list them. The application contained only the names and addresses of the devisees under the probated will. All three appellants alleged in their pleadings that their identities were known or reasonably ascertainable to the respondents.

This Court has previously held that failure to provide the information required under § 473.017.1(2), resulting in faulty notice under § 473.033, does not preclude the time limitation for contesting a will under § 473.083.1. Haas v. Haas, 504 S.W.2d 44, 45 (Mo.1973). In Haas the son of the deceased, confined in prison, did not receive notice of the will's probate until after the six-month period to contest had passed because his address had not been listed in the application for letters. The Court characterized

Page 776

the time limitation as a "special statute of limitations," which fraud could not toll. Id. Because the right to contest a will is purely statutory, the legislature could extinguish the right within six months regardless of whether the proper probate procedures were followed. Id.

Haas ignores the interlocking nature of the Missouri probate code and the plain language of the statute. The administration of an estate "from the filing of the application for letters testamentary or of administration until the decree of final distribution and the discharge of the last personal representative is deemed one proceeding for purposes of jurisdiction." § 473.013. It is a proceeding that provides transitional administration of an estate while a decedent's affairs are wrapped up. It transfers a variety of legal duties to a personal representative or executor, all of which are governed by separate sections of the code. 3 The personal representative cannot pick and chose which of the statutory mandates he or she will follow. The probate code was not meant to be read in fragments, but as a single process governing the administration of a decedent's estate. State ex rel. Plymesser v. Cleaveland, 387 S.W.2d 556, 559 (Mo.1965).

Compliance with §§ 473.017 and 473.033 is particularly relevant to § 473.083. The six-month window does not open until the rejection or probate of a will or the first publication of notice granting letters, whichever is later. § 473.083.1. The application for letters is the first step in probating a will. Issuing the letters triggers the first publication notice. § 473.033. Compliance with both statutes is essential to begin the six-month period to bring a will contest.

Even before Pope 4 the holding in Haas was criticized as depriving interested persons of their right to contest by condoning negligent or intentional omissions by personal representatives in their application for letters testamentary. Gary R. Cunningham, Due Process--The Requirement of Notice in Probate Proceedings, 40 Mo.Law Review 552, 561 (1975). The implications of the holding in Haas are particularly troubling considering the representatives of an estate are often devisees under the probated will. § 473.110.2(2). There is little incentive for those gaining under a will to correctly identify potential will contestants knowing that under Haas their opponents' claims are barred after six months. 5

Haas also hinders the legal rights of those unable to bring will contest actions on their own behalf. Under § 473.083.2 the probate judge is required to appoint a guardian ad litem for minors or incapacitated persons who may be interested in a will contest. Because Haas does not require the accurate completion of the application for letters under § 473.017, it is unclear how the court is to discover the existence of persons requiring aid.

We hold that the requirements of §§ 473.017 and 473.033 must be followed before the statutory bar of § 473.083 may be exercised to exclude a will contest in an open estate. To the extent Haas and the cases following it hold otherwise, they are overruled.


Respondents assert that the statutory bar in § 473.083.1 is jurisdictional and even

Page 777

noncompliance with notice statutes cannot redeem an untimely contest. The statute, however, does not...

To continue reading

Request your trial
52 cases
  • State v. Bucklew, 80052
    • United States
    • United States State Supreme Court of Missouri
    • 26 Mayo 1998
    ...596 (Mo. banc 1998); State v. Rousan, 961 S.W.2d 831 (Mo. banc 1998); State v. Butler, 951 S.W.2d 600 (Mo. banc 1997); State v. Tokar, 918 S.W.2d at 773; State v. Nave, 694 S.W.2d 729 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 901 In this case, Bucklew murdered......
  • State v. Middleton, 80043
    • United States
    • United States State Supreme Court of Missouri
    • 29 Junio 1999
    ...blow is dealt to the victim while the victim is lying injured and helpless, which the facts seem to indicate here. See, e.g., Tokar, 918 S.W.2d at 773. The strength of the evidence and Middleton's violent behavior support a sentence of death. Physical evidence found at the crime scene, such......
  • U.S. v. Workcuff, 020018901CRWODS.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 31 Enero 2003
    ...ten days. The word "shall" is mandatory. "Courts have a duty to construe statutes in their plain, ordinary, and usual sense. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996). Where no ambiguity exists, courts cannot look to any other rule of construction. Id. The plain and ordinary m......
  • Roesing v. Dir. Revenue
    • United States
    • United States State Supreme Court of Missouri
    • 30 Abril 2019
    ...unless there is some ambiguity" in the statute. Ross v. Dir. of Revenue , 311 S.W.3d 732, 735 (Mo. banc 2010) ; Bosworth v. Sewell , 918 S.W.2d 773, 777 (Mo. banc 1996) ("Where there is no ambiguity, we cannot look to any other rule of construction.").Section 577.041 is a civil statute gove......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT