Burke v. Kehr
| Decision Date | 18 March 1992 |
| Docket Number | No. 60286,60286 |
| Citation | 826 S.W.2d 855 |
| Parties | E. Townsend BURKE, Thomas M. Hess, and Paul S. Burke, Plaintiffs-Appellants, v. Kent D. KEHR, Personal Representative of the Estate of Margery C. Bussen, et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
John L. Sullivan, Dianne S. Johnson, St. Louis, for plaintiffs-appellants.
Timothy Hayes, St. Louis, Terrence Rottler, St. Genevieve, Edward M. Goldenhersch, Lawrence S. Denk, St. Louis, for defendants-respondents.
This appeal stems from the order of the Circuit Court of St. Francois County, Missouri, dismissing the petition contesting the will in part (petition) filed by F. Townsend Burke, Thomas M. Hess, Paul S. Burke (appellants), granting respondents Jesuit Seminary Aid Association, Mariannhill Fathers, St. Mary's Seminary, Ste. Genevieve Parish, Norbertine Fathers, Missionhurst, The Roman Catholic Archdiocese of St. Louis, Passionist Missionaries, and Missionary Sisters of St. Peter Claver's (collectively referred to as respondent Catholic Charities) motion to dismiss for lack of subject matter jurisdiction because of failure to name and join all necessary parties to the will contest action pursuant to § 473.083(6) RSMo 1986.
Margery C. Bussen, a resident of Ste. Genevieve County, died on February 14, 1990. On February 22, 1990, the Probate Division of the Circuit Court of Ste. Genevieve County admitted decedent's will dated April 1, 1983, to probate in common form, appointing respondent Kent D. Kehr as the independent personal representative of the estate. First notice of publication of probate of decedent's will occurred on February 28, 1990.
On August 21, 1990, appellants, heirs at law of the decedent, filed their petition, 1 specifically contesting the validity and effect of Article VI of decedent's will, which, in pertinent part, provides:
ARTICLE VI. Residue to Exempt Organizations. I give, devise and bequeath all the rest, residue and remainder of the property which I own at the time of my death, both real and personal, and of every kind and description wherever the same may be situated, to my Personal Representative, hereinafter named in ARTICLE VII, solely for the purpose of distribution to such corporations, foundations or organizations operated exclusively for religious, charitable or educational purposes as he shall select, provided such contributions qualify for the charitable deduction provided for in Section 2055 of the 1954 Internal Revenue Code or corresponding provisions of subsequent Internal Revenue enactments. It is my wish that contributions be made to the following organizations, among others: ...
Article VI then lists twelve organizations to whom decedent desired contributions be made. Included in this list were respondent Catholic Charities and three additional organizations, namely: Ste. Genevieve Hospital, Sacred Heart League, and Servants of Mary. 2
Appellants' petition contests the will on two grounds, namely that decedent was: (1) of unsound mind within the meaning of the law on the date of execution of her will containing the purported provision, i.e. Article VI; and (2) under the undue influence of her personal representative, Kent D. Kehr, with regard to the disposition of the residuary estate.
Appellants duly served process on all twelve of the residuary devisees listed in Article VI within the six month period required in a will contest action pursuant to §§ 473.083(3) and (6) RSMo 1986. 3 Appellants did not name or serve with process those parties receiving specific bequests under the will.
On February 20, 1991, respondent Catholic Charities filed a motion for summary judgment alleging inter alia that the circuit court lacked subject matter jurisdiction over the petition because appellants failed to join and serve as defendants all necessary parties to the action, in violation of §§ 473.083(3) and (6) RSMo 1990.
On March 13, 1991, respondent Kent D. Kehr filed his motion for summary judgment. Thereafter, on April 25, 1991, respondent Catholic Charities moved to dismiss appellants' petition pursuant to Rule 55.27(a)(1), stating that the circuit court lost subject matter jurisdiction over the will contest because appellants "had failed to serve (or failed to show good cause as to why they did not serve) as necessary parties, all specific beneficiaries and legatees within ninety (90) days of the date of filing the Petition to Contest Will as required by § 473.083(6) RSMo (1990)" (emphasis added). On April 26, 1991, the circuit court granted respondent Catholic Charities' motion. Thereafter, appellants filed their appeal.
On November 5, 1991, respondent Catholic Charities was granted leave to refile their supplemental legal file. The latter contains the will of Margery C. Bussen and a transcript of the proceedings before the circuit court based upon appellants' motion to strike respondent Catholic Charities' interrogatories. On November 8, 1991, appellants moved to strike part of respondent Catholic Charities supplemental legal file which was taken with the case. Pursuant to Missouri Rules of Civil Procedure, Rule 81.12(a), (b) and (e), appellants' motion is granted.
Appellants raise three issues on appeal. First: Does § 473.081 permit probate of a portion of a will where another part of the will is contested on the ground of unsound mind of the testator on the date of execution?
Section 473.081 RSMo 1986 provides as follows:
Probate of portion of will.--When part of a will is not admissible to probate because of fraud, duress, undue influence, mistake, ignorance of the testator of its content, partial revocation, or other cause, the other parts of the will may be admitted to probate under sections 473.073 and 473.083.
(Emphasis added).
Prior to the enactment of the above section, the law in Missouri was that in a contest or a suit to establish a will, the sole issue to be determined is "whether or not the will in toto is valid or the will in its entirety is invalid." McCarthy v. Fidelity Nat. Bank & Trust Co., 325 Mo. 727, 30 S.W.2d 19 (1930); Hanna & Borron, 5 Missouri Practice, § 287 (1988); Mundwiller v. Mundwiller, 822 S.W.2d 863, 865 (Mo.App.E.D.1991).
To alleviate the problem of the McCarthy rule, the Missouri Legislature promulgated § 473.081, aligning Missouri with several other jurisdictions permitting partial validity of wills. However, since January 1, 1981, the effective date of § 473.081, our courts have not addressed the question of whether contestants can allege "unsound mind" of the testator/testatrix as to void one provision of the will alone.
Respondents cite cases from other jurisdictions which have ruled that an allegation of unsound mind vitiates the entire testamentary disposition executed during such incapacity, such that a will cannot simultaneously be partly valid and partly invalid for want of testamentary capacity. See In re Estate of Baker, 176 Cal. 430, 168 P. 881 (1917); Moore v. Jackson, 247 Miss. 854, 157 So.2d 785 (1963); In re Thorne's Estate, 153 Misc. 28, 274 N.Y.S. 844 (1934). See also 64 A.L.R.3d Partial Invalidity of Will, § 19 pgs. 320-322 (1975).
Appellants have not cited a single case from another jurisdiction which permits partial invalidity of a will based upon unsound mind. 4 It is undeniable that a claim of "unsound mind" attacks the testamentary capacity of the testator to make a will. In Missouri, if a person is not of sound mind and eighteen years of age, he cannot execute a legally valid will. (See § 474.310 which provides that: "Any person of sound mind, eighteen years of age or older may by last will devise his real or personal property ..."). In order to have testamentary capacity to execute a will, a testator must (1) be of sound mind; (2) understand the ordinary affairs of life; (3) know the nature and extent of his property; (4) know the persons who are the natural objects of his bounty; and (5) appreciate his natural obligations to those persons. Smith v. Crites, 781 S.W.2d 189, 193 (Mo.App.1989).
Paragraph seven 5 of appellants' petition alleges that the decedent was of unsound mind within the meaning of the law when she executed her will containing Article VI, the residuary clause.
Appellants contend that the term "or other cause " in § 473.081, permits an allegation of "unsound mind" as a ground for contesting a portion of the will, in addition to the other grounds specified in the said section. Respondent Catholic Charities claims that such an interpretation would conflict with § 474.310, which stands for the proposition that unsound mind or lack of testamentary capacity can only invalidate the entire will. Therefore, contend respondents, to include "lack of testamentary capacity" or "unsound mind" in the phrase "or other cause" would vitiate the meaning of § 474.310.
Appellants argue that the right to contest a will being statutory in nature can be exercised only in strict compliance within the limits proscribed by statute. Garrett v. Mowry, 651 S.W.2d 696, 698 (Mo.App.1983). The statutes which control the initiation of a partial will contest are §§ 473.081 and 473.083, and not § 474.310, assert appellants (emphasis added). Appellants state that no conflict exists with § 474.310 when the language of § 473.081 is applied to the allegation of "unsound mind," contained in paragraph seven of their petition.
To ascertain the meaning of a statute, we must interpret the words according to their plain and ordinary meaning. Thomas v. Labor and Indus. Com'n, 678 S.W.2d 894, 896 (Mo.App.1984). Appellants, citing Random House Dictionary (1979 ed.), define the term "other" as "different from the one or ones mentioned or implied". Appellants then apply this definition to the explicit language of § 473.081 to advance the proposition that an allegation of "unsound mind" which is different from the other grounds specified in the said section, can be made to invalidate a...
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