Callahan v. Huhlman

• Decision Date: 12 November 1936
• Citation: 98 S.W.2d 704,339 Mo. 634
• Parties: Mike Callahan, Edward Callahan, Agnes Hausner and Mary O'Brien, Appellants, v. Joseph Huhlman, Margaret Huhlman and Telitha Callahan
• Court: Missouri Supreme Court

98 S.W.2d 704

339 Mo. 634

Mike Callahan, Edward Callahan, Agnes Hausner and Mary O'Brien, Appellants, v. Joseph Huhlman, Margaret Huhlman and Telitha Callahan

Supreme Court of Missouri

November 12, 1936

Appeal from Maries Circuit Court; Hon. Nike G. Sevier Judge.

Reversed and remanded (with directions).

H BalkenBush for appellants.

(1) The court was without jurisdiction of the subject matter in this cause. The record affirmatively shows there was never any judgment declaring the paper writing offered as the last will and testament of William Callahan, deceased, to be the last will and testament of said William Callahan, or any confirmation by the Probate Court of Phelps County, in term time, of the proceedings had by said court in vacation as required by Section 528, Revised Statutes 1929; neither was there any judgment by the Phelps County Probate Court rejecting the will, one or the other being a necessary requisite to have been done by the Probate Court of Phelps County before the circuit court could acquire any jurisdiction in the matter of the probation of the will in issue, as provided in Section 537, Revised Statutes 1929. Section 528, Revised Statutes 1929: Probate court to take proof of last wills. The probate court or the judge or clerk thereof in vacation, subject to the confirmation or rejection by the court, shall take proof of last wills, and of the date of the death of the testator. Which section has been construed by the Supreme Court of Missouri many times, and it has been uniformly held that the probation of a will is a judicial act and not ministerial and that the clerk of the probate court or judge thereof acting as officio clerk may receive wills for probate in vacation, but unless such action is confirmed in term time there has been no judgment on the will and any paper writing admitted to probate in vacation as a will is wholly ineffectual as an instrument of title unless confirmed by the court in term time: Jordan v. Meyer, 31 Mo. 40; Creasy v Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Snuffer v. Howerton, 124 Mo. 637; Stowe v. Stowe, 140 Mo. 594; Barnard v. Bateman, 76 Mo. 414; Ferris v. Burchard, 240 Mo. 1; Graham v. Graham, 297 Mo. 290. A will contest is purely a statutory right. Section 537, Revised Statutes 1929, specifically sets out how and when a will contest may be instituted. The jurisdiction of a circuit court is derivative and has no original jurisdiction in the matter of probating wills. State ex rel. v. Guinotte, 156 Mo. 519; Johnson v. Brewn, 277 Mo. 392. (2) Plaintiff's demurrer at the close of proponents' evidence should have been sustained. The record affirmatively shows there is no will. Proponents failed to make a prima facie case. Proponents failed to show that the paper writing purporting to be testator's will was ever probated. Jordan v. Meyer, 31 Mo. 40; Creasy v. Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Snuffer v. Howerton, 124 Mo. 637; Stowe v. Stowe, 140 Mo. 594; Barnard v. Batement, 76 Mo. 414; Ferris v. Burchard, 240 Mo. 1.

H. P. Lauf, John O. Bond and Ben Holmes for respondents.

(1) Where a will is contested as not being the last will of the testator in the circuit court, all proceedings in the probate court are destroyed and vacated and there is no will until it is proved anew in the circuit court. Benoist v. Murrin, 48 Mo. 52; State ex rel. v. Imel, 243 Mo. 186; State ex rel. v. Ittner, 263 S.W. 163; Hogan v. Hinckey, 195 Mo. 532. (2) In a proceeding in the circuit court to contest the validity of a will, or to have a will proved which has been rejected, the issue to be tried is whether or not the writing produced is the will of the testator, and that is the only issue that can be tried. Cox v. Cox, 101 Mo. 168; Owens v. Sinklear, 110 Mo. 54; Gordon v. Burris, 141 Mo. 602; Sec. 537, R. S. 1929; Bridwell v. Swank, 84 Mo. 470. (3) On appeal a contestant of a will cannot raise the question that the will was improperly admitted in evidence in that there was no proof of proper probate of same where the contestant made no objection to its admission in evidence at the trial. Schneider v. Kloepple, 193 S.W. 834; Hogan v. Hinckey, 195 Mo. 527.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This is a will contest. The cause was filed in Phelps County and went on change of venue to Maries County. The court, at the close of the whole case, directed a verdict for defendants, proponents of the will, judgment went accordingly and plaintiffs, contestants, appealed.

William Callahan, testator and resident of Phelps County, executed the will in question June 13, 1932, and died November 6, 1932. Contestants, brothers and sisters, are nephews and nieces of testator. Defendant, Margaret Huhlman, is a niece of testator and defendant, Joseph Huhlman, is the husband of Margaret and executor under the will. Defendant, Telitha Callahan, is the widow of testator, who died without descendants.

Inventories of the estate were introduced which showed a total of $ 17,654.28. By the will, testator gave to each of his five nephews and nieces the sum of $ 200, and "all the rest and residue and balance," both real and personal, was devised to his wife, Telitha, "for and during her natural life, remainder in fee and by the entirety to his niece, Margaret Huhlman and her husband, Joseph.

The petition charges lack of mental capacity to execute the will and undue influence on the part of the widow and the Huhlmans. Several assignments are made, but the only point necessary to consider is whether or not the will was probated in the probate court, and if it was not, are contestants in a position to complain? Plaintiffs allege that "on or about the 15th day of November, 1932, there was admitted to probate in the probate court (italics ours) of Phelps County, Missouri, a certain paper writing purporting to be the last will and testament of said William Callahan, which said paper writing is in words and figures as follows:" Then the will is set out in full. Defendants in their answer admit that "on or about the 15th day of November, 1932, there was presented to the probate court of Phelps County, Missouri, a paper writing purporting to be the last will and testament of the said William Callahan, deceased, which paper writing was on the 15th day of November, 1932, duly admitted to probate by said court." (Italics ours.)

At the outset of the trial, defendants, proponents of the will, used the witnesses to the will, introduced the will and the record in the office of the probate court pertaining thereto, and on this record the controversy lies. This record recites: "Now, on this 15th day of November, 1932, in vacation, before the Judge, comes Joseph Huhlman and proves to the Judge that William Callahan departed this life in Phelps County, Missouri, on the 6th day of November, 1932, with his domicile in Phelps County, Missouri, and presents an instrument of writing purporting to be the last will and testament of said deceased, and asks that the same be admitted to probate. And after having examined said instrument and having heard the testimony of Charles C. Smith and J. R. Kirkham, the subscribing witnesses to said instrument in relation to the execution of the same, the Judge does declare and adjudge said instrument to be the last will and testament of the said William Callahan, deceased, late of Phelps County, Missouri, and the same is hereby admitted to probate and together with the testimony of the subscribing witnesses is ordered certified, filed and recorded." (Italics ours.)

By Section 528, Revised Statutes 1929 (Mo. Stat. Ann., sec. 528 p. 322), it is provided that "the probate court, or the judge or clerk thereof in vacation, subject to the confirmation or rejection by the court, shall take proof of last wills, and of the date of the death of the testator." There was no order of confirmation by the probate court. So far as appears here, all that occurred in the probate court, concerning the probate of the will, was as appears above. As shown, plaintiffs alleged that the will was duly probated and such was admitted in the answer of defendants. However, defendants did not invoke the pleadings as an admission that the will was duly probated November 15, 1932, and let it go at that, but they proceeded to introduce the record which showed that the will was not duly probated on that date. By doing this defendants contradicted and destroyed the admission in the pleadings that the will was duly probated on that date. The petition alleges, as appears above, that the will was "admitted to probate" November 15, 1932, when the record introduced by defendants showed that there was not and could not have been a valid judgment of probate on that date. Also, it appears that defendants, without objection, introduced the will in evidence. Plaintiffs say they did object to the introduction of the will on the ground that it had not been probated, but they admit that the bill of exceptions does not show such objection. Manifestly, in this situation, there was no objection so far as shown by the record. However, plaintiffs say that the circuit court had no jurisdiction to render a judgment, adjudging the paper writing introduced in evidence to be the last will and testament of William Callahan, and this, because the paper writing had not been probated and found to be such will. It is elementary that a question of jurisdiction of the subject matter can be raised at any time and cannot be waived. A will contest suit must be filed in the circuit court, Section 537, Revised Statutes 1929 (Mo. Stat. Ann., sec. 537, p. 326), and in the county where the will is sought to be probated. [Hyde v. Parks, 221 Mo.App. 675, 283 S.W. 727.] But the jurisdiction of the circuit court to...