Campbell v. St. Louis Union Trust Co.

• Decision Date: 07 May 1940
• Docket Number: 36815
• Parties: Hazlett Kyle Campbell, Formerly a Non Compos Mentis, and John McNickle, a Minor, Heir of Hazlett Kyle Campbell, by Paul S. Limerick, His Curator, Applicant for Writ of Scire Facias to Revive Cause, Appellant-Petitioner, v. St. Louis Union Trust Company, a Corporation, and Allen C. Orrick, Executors of the Estate of Hugh Campbell, and St. Louis Union Trust Company, a Corporation, Allen C. Orrick, Trustees, etc.; Bellefontaine Cemetery Association, a Corporation, Martha Siebke, Mary Boerste, August H. Meyer, August Herman Meyer, Trustee of Adolph Furman, Under the Will of Hugh Campbell; August Herman Meyer, Trustee of Harry Furman, Under the Will of Hugh Campbell; Adolph Furman, Harry Furman, Frank Havinnatti, and the Unknown Living Children and Heirs of Mrs. Bettie Otey Anderson and Yale University, a Corporation
• Court: Missouri Supreme Court

139 S.W.2d 935

346 Mo. 200

Hazlett Kyle Campbell, Formerly a Non Compos Mentis, and John McNickle, a Minor, Heir of Hazlett Kyle Campbell, by Paul S. Limerick, His Curator, Applicant for Writ of Scire Facias to Revive Cause, Appellant-Petitioner, v. St. Louis Union Trust Company, a Corporation, and Allen C. Orrick, Executors of the Estate of Hugh Campbell, and St. Louis Union Trust Company, a Corporation, Allen C. Orrick, Trustees, etc.; Bellefontaine Cemetery Association, a Corporation, Martha Siebke, Mary Boerste, August H. Meyer, August Herman Meyer, Trustee of Adolph Furman, Under the Will of Hugh Campbell; August Herman Meyer, Trustee of Harry Furman, Under the Will of Hugh Campbell; Adolph Furman, Harry Furman, Frank Havinnatti, and the Unknown Living Children and Heirs of Mrs. Bettie Otey Anderson and Yale University, a Corporation

No. 36815

Supreme Court of Missouri

May 7, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed.

Harry Troll, J. A. Henderson and C. J. Neudeck for John McNickle, a Minor, by Paul S. Limerick, His Curator.

(1) The applicable statutes in instant case are the following: (a) Action shall not abate by death. Sec. 891, R. S. 1929: No action shall abate by the death, marriage or other disability of a party, if the cause of action survive or continue. In case of the death, marriage or other disability of a party the court, on or before the third term after the suggestion of such death, marriage or disability, may, on motion, order the action to be continued by or against the representatives or successor of such party in interest. When the cause of action does not survive, the action shall abate only as to the deceased parties, and shall continue as to the survivors if any, without a revival thereof. (b) Proceedings after suggestion of death. Sec. 892, R. S. 1929: After the suggestion of the death, marriage or disability, the order may be made on the motion of the adverse party, or of the representative or successor of the party who died or whose power ceased, and the names and capacities of the representatives or successor shall be stated in the order. (c) Order of revivor, if not made by consent. Writ of scire facias to issue returnable next term of court. Extract of applicable portion of Section 893, Revised Statutes 1929: If an order of revival shall not be made upon the voluntary appearance of the parties, a summons shall be issued against the person to be made a party, and if, after service of same, sufficient cause be not shown against the revivor at the next term and within the first four days thereof to which the summons is returnable, the action shall stand revived. (d) Summons for writ of scire facias to be issued in same manner and like effect as in case of original action. Sec. 894, R. S. 1929: The summons may be directed to any county in the State, and shall be served and returned in the same manner and with like effect to all intents and purposes as is required in cases of summoning or notifying original defendants. The court may also make an order of publication as to all such persons to be made parties as are nonresidents, or whose names are unknown, in the same manner as in case of original defendants, which order shall be published in like manner as in original cases. (e) Proceedings subsequent to revivor same as original action. Sec. 895, R. S. 1929: In all cases where a representative or successor is made a party to an action as herein provided, the pleadings of the party whom he represents or succeeds shall be taken to be his, which he may be allowed to amend; and proceedings may be had in all respects in favor of or against him, as if he had been an original party to the action. (f) Where interested parties not brought in under writ of scire facias on or before third term after suggestion of death -- action to abate. If no surviving plaintiff suit shall be dismissed. Sec. 896, R. S. 1929: In all cases where the representatives of a deceased or disabled party shall not be made parties according to the provisions of this article, on or before the third term after the suggestion of the death or disability the action shall abate as to such party and the interest of his representatives or successor therein; and the cause shall proceed in favor of or against the survivors. In case there be no surviving plaintiff or defendant, the suit shall be dismissed. (2) The Missouri statutes contemplate that, upon the death of a plaintiff (if suit cannot be revived by consent), that a writ of scire facias issue at the behest of interested parties to the next term of the court. (a) If the respondent to the writ deem the action of such a nature that the same does abate by reason of death. -- (c) Then respondents may file a return thereto and set out the reason why the same does abate -- (d) And the issue of survivability shall be tried thereon. De Hatre v. Ruenpohl, 108 S.W.2d 359, 341 Mo. 749. (3) It has been uniformly held by the Supreme Court of Missouri that, if a party dies pending appeal, upon suggestion of death, a scire facias issues returnable to the first day of the next term -- And that new parties as successors to those who may have died can be substituted in the mode pointed out by statute -- After service of summons issued for purpose of revivor on such party -- And this, under Missouri statute, in like time and manner, and like effect, as provided in original suits in the circuit court. The provisions of the Missouri statutes, when read together, give the representative interested, as well as parties to the suit -- The plenary right to make the substitution at any time before or during the third term after the suggestion of death. The court cannot, without the violation of the statutes, curtail this right with respect to anyone having an interest in its exercise -- the heirs or devisees of the deceased. Edwards v. Watson, 258 Mo. 637, 167 S.W. 1119. (4) All persons materially interested, either legally or beneficially, in the subject matter of the suit must be made parties. These rules are based on the purpose of promoting justice among all who are interested in the subject matter of the decree, and to prevent further litigation. A judgment is void where all the beneficiaries are not made parties. Riggs v. Moise, 128 S.W.2d 636. (5) Where one of the parties to a pending will contest dies, leaving widow and children -- And the courts allows will contest to proceed without issuance of a writ of scire facias -- The circuit court did not have jurisdiction of the necessary parties to the suit. Hence the judgment was a nullity and must be reversed and remanded for further proceedings. Fields v. Luck, 100 S.W.2d 471, 339 Mo. 1140.

Daniel N. Kirby and Harry W. Kroeger for St. Louis Union Trust Company and Allen C. Orrick, Executors and Trustees; Frank H. Fisse for August H. Meyer, August Herman Meyer, Trustee for Adolph Furman, and August Herman Meyer, Trustee for Harry Furman.

(1) Sections 891 to 896, Revised Statutes 1929, grant a limited right of revivor of actions which abated at common law and do not apply to will contest suits. Secs. 891-896, R. S. 1929; Rutherford v. Williams' Legal Representatives, 62 Mo. 254; De Hatre v. Ruenpohl, 341 Mo. 753, 108 S.W.2d 357; Braeuel v. Reuther, 270 Mo. 609, 193 S.W. 283. (2) The will contest suit, as authorized by Section 537, Revised Statutes 1929, had its origin in the procedure of probate in solemn form under the jurisdiction of the ecclesiastical courts in England. Woerner, Amer. Law of Admin. (3 Ed.), secs. 137-140, 215; Watson v Alderson, 146 Mo. 345, 48 S.W. 478. It is a suit in rem operating directly upon the res. Benoist v. Murrin, 48 Mo. 52; Watson v. Alderson, 146 Mo. 344, 48 S.W. 478. It is incapable of joinder with any other cause of action. Lilly v. Tobbein, 103 Mo. 487, 15 S.W. 618; Weaver v. Allison, 340 Mo. 817, 102 S.W.2d 884. (3) The right to institute a will contest suit is one which under the statute (Sec. 537, R. S. 1929) may be exercised only by a person having a pecuniary interest in the probate of the will at the time of its probate. Teckenbrock v. McLaughlin, 246 Mo. 711, 152 S.W. 38; State ex rel. Damon v. McQuillin, 246 Mo. 674, 152 S.W. 341; Gruender v. Frank, 267 Mo. 713, 186 S.W. 1004; Jensen v. Hinderks, 338 Mo. 461, 92 S.W.2d 108. (4) The right to institute a will contest suit is not a property right and is not assignable nor descendible, so that upon the death of the sole contestant of the will there cannot be a revivor. Braeuel v. Reuther, 270 Mo. 603, 193 S.W. 283; Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N.E. 185; Selden v. Illinois Trust & Savs. Bank, 239 Ill. 67, 87 N.E. 860; Cain v. Burger, 219 Ala. 10, 121 So. 17; Ex parte Liddon, 225 Ala. 683, 145 So. 144. (5) The appellant, McNickle, as an heir of the sole heir of Hugh Campbell, has no standing as a contestant of the latter's will, since he had no interest in the probate of the will at the time it was probated, and Hazlett Campbell's right to contest was not a property right transmissible to appellant. (6) The trustees of the deed trust for Hazlett Kyle Campbell, nonjoinder of whom is complained of, were not beneficiaries of the will of Hugh Campbell, deceased, and would have had no interest in the estate of Hugh Campbell, if the will had been set aside. The fact that the latter have a possible claim against the estate cannot be injected into this will contest. Lilly v. Tobbein, 103 Mo. 487, 15 S.W. 618; Weaver v. Allison, 340 Mo. 815, 102 S.W.2d 884. (d) Appellant's contention that there may be substitution of parties in a will contest suit is beside the point, because the rule presupposes that the parties substituted were interested in the probate of the will. Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618; Gresham v. Talbot, 326...