Braeuel v. Reuther

• Decision Date: 17 February 1917
• Docket Number: No. 18157.,18157.
• Citation: 270 Mo. 603,193 S.W. 283
• Parties: BRAEUEL et al. v. REUTHER et al.
• Court: Missouri Supreme Court

193 S.W. 283

270 Mo. 603

BRAEUEL et al. v. REUTHER et al.

No. 18157.

Supreme Court of Missouri, Division No. 2.

February 17, 1917.

Petition for revocation of will of Anna Zwingmann, deceased, by John William Braeuel and Paul Braeuel, against John F. Reuther and others. On motion to revive by the administrators of petitioners, and on motion to abate. Motions overruled.

Safford & Marsalek, of St. Louis, for the motion. Morton Jourdan, of St. Louis, for respondents.

WALKER, P. J.

Anna Zwingmann died in the city of St. Louis in April, 1912, leaving personal property therein. On April 23, 1912, there was admitted to probate in the probate court of said city a paper purporting to be her last will. In May, 1912, the plaintiffs herein, brothers of the deceased, brought suit in the circuit court of said city to set aside the will on the grounds of fraud, duress, and mental incapacity of the testatrix to make a will. At the April term, 1913, of the circuit court of said city a trial was had therein, resulting in a finding and a judgment that the paper so admitted to probate was the last will and testament of the said Anna Zwingmann. Thereafter plaintiffs perfected an appeal from said judgment to this court. The case was set for hearing on said appeal on the 19th day of October, 1916, and on that day was taken as submitted. It now appears that both of said plaintiffs are dead, one having died on May, 1915, and the other in July, 1916. On the 7th day of November, 1916, the deaths of the plaintiffs were suggested to this court, and a motion was made to revive in the name of their administrator, who, as stated in said motion, had been appointed by the probate court of the city of St. Louis in October, 1916, but was not one of plaintiffs' former counsel in the contest proceeding. A motion to abate the action has been filed by counsel for respondent. These motions will receive consideration in their order.

It is necessary, under the statute (section 555, R. S. 1909), to authorize an action to contest a will that those who instituted same shall have a direct pecuniary interest in the final determination of the question as to whether the instrument is the last will of the decedent. We said this much in Watson v. Alderson, 146 Mo. loc. cit. 343, 48 S. W. 478, 69 Am. St. Rep. 615, and, expressive of the same conclusion, but in different terms, it was said in State ex rel. v. McQuillin, 246 Mo. loc. cit. 591, 151 S. W. 444, that the statutory interest referred to must be a financial interest in the estate, and one which would be benefited by setting aside the will; also in Teckenbrock v. McLaughlin, 246 Mo. 719, 152 S. W. 38, it was held that generally a direct pecuniary interest at the time of the probate of the will is a condition precedent to the right to contest; and in Gruender v. Frank, 267 Mo. 713, 186 S. W. 1004, the latest expression of this court on the subject, the language of the preceding cases as to what constitutes an interest within the meaning of the statute is quoted with approval.

The plaintiffs were the sole contestants. So far as the record discloses, they were the only persons capable of inheriting from the decedent had she died intestate. The setting aside of the will therefore would have inured to their pecuniary benefit, and as a consequence they were interested in the devolution of the property of the decedent to such an extent as to authorize them to institute the pending action. Plaintiffs' right to institute the action having been determined, what effect has their death pending the appeal upon this proceeding? If this action is in no wise different in its material features from the ordinary civil proceeding, it will survive or continue, and may, upon compliance with our rules of procedure (article 10, c. 21, R. S. 1909) applicable in such cases, be revived in the name of the party entitled to succeed plaintiffs in the prosecution of the action. This follows from the language of the statute (section 1916, R. S. 1909), which provides that:

"No action shall abate by the death, marriage, or other disability of a party, if the cause of action survive or continue."

A proceeding to contest a will, however, is possessed of peculiar features. After the will has been probated, an action questioning its validity casts upon those who claim under it the burden of proving it. Although the contestants who have brought the action may introduce no evidence, and may even abandon the contest, the burden of proving the will still devolves upon those who would maintain it. While they are not required to prove a negative, they must prove the affirmative facts essential to the execution of a valid will. Bradford v. Blossom, 207 Mo. loc. cit. 177, 105 S. W. 289. From this ruling, which is but a reiteration of a like doctrine announced in many preceding cases, it follows that the question as to the survival or continuance of actions of this character in the event of the death of parties thereto is eliminated from the equation. Upon the action being brought the parties thereto become of minor importance; the prime purpose of the proceeding being to determine whether there is a will or not. The importance of this concrete question being paramount, we might well content ourselves with the course that, having regularly acquired jurisdiction, we will, regardless of the parties and with indifference to the motions filed herein, review the record and render judgment thereon; but it is meet and proper that other questions submitted pro and con in regard to these motions be determined.

The appointment of the administrator of the estates of plaintiffs made below, and the motion filed here to revive in his name, was evidently upon the assumption or theory that, in the absence of this course, the action would abate. This result would not have followed, as we have shown, on account of the nature of the action and the purpose it seeks to effect. There being no abatement, the motion to revive was therefore without merit.

But, viewed from another vantage than that which presents itself on account of the nature of the action, are there other reasons existent for the nominal substitution of the administrator for the plaintiffs?

The purpose of the appointment of an administrator is that he may manage and settle the estate of the intestate. The limit of his power is to be found in the statutes which authorize his appointment. An analysis of these statutes is pertinent. Under section 101, R. S. 1909, the administrator is authorized to "commence and prosecute all actions which may be maintained and are necessary in the course of his administration, and defend all such as are brought against him." A will contest is clearly not within this class. It is in no sense a property right, and is therefore not such an action as is authorized to be maintained by the administrator in the course of his administration within the meaning of the section quoted. Being a mere right of action, a judgment in the administrator's favor would result in the recovery of nothing more than the establishment of the right. Such is the character of this right that it is neither assignable nor descendible (Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185, 72 Am. St. Rep. 211), and, as the administrator, if successful in maintaining it, would recover nothing tangible, it was not contemplated by the statute that he bring suit to establish it. As was aptly said by the Supreme Court of Ohio in discussing a correlative question:

"An executor or administrator is not a necessary party where there are no debts and no personal property." Andrews' Ex'rs v. Andrews' Adm'rs, 7 Ohio St. 143.

This conclusion accords with reason, and it was so held in Ligon v. Hawkes, 110 Tenn. loc. cit. 521, 75 S. W. 1072, in construing a statute of that state similar in all of its material features to that under review. An Illinois statute upon the same subject has received a like construction. Staude v. Tscharner, 187 Ill. 19, 58 N. E. 317.

Section 104, R. S. 1909, provides that:

"Executors and administrators shall prosecute and defend all actions commenced by or against the deceased, at the time of his death, and which might have been prosecuted or maintained by or against such executor or administrator."

This section simply means that executors and administrators may prosecute and defend such actions as may have been brought by or against the...