Campbell v. St. Louis Union Trust Co.

• Decision Date: 21 February 1939
• Docket Number: 34576
• Parties: Hazlett Kyle Campbell by Anton Schuler, Guardian of the Person and Estate of Hazlett Kyle Campbell, non compos mentis, Appellant, 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 for Hazlett Kyle Campbell Under the Will of Hugh Campbell; 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 College, a Corporation
• Court: Missouri Supreme Court

124 S.W.2d 1068

343 Mo. 1041

Hazlett Kyle Campbell by Anton Schuler, Guardian of the Person and Estate of Hazlett Kyle Campbell, non compos mentis, Appellant, 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 for Hazlett Kyle Campbell Under the Will of Hugh Campbell; 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 College, a Corporation

No. 34576

Supreme Court of Missouri

February 21, 1939

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge.

Reversed and remanded.

John S. Leahy, W. W. Henderson and Harry Troll for appellant.

(1) The only pleading authorized to be filed on the part of defendant in a will contest proceeding is either a demurrer or an answer. Originally defendants filed a demurrer to plaintiff's petition, which the court overruled. Sec 768, R. S. 1929; Smith v. Smith, 37 S.W.2d 904. Defendant's equitable counterclaims do not contain either a denial of the plaintiff's allegations, nor set up new matter tending to defeat the plaintiff's cause of action under the will contest, as is required by the code. Sec. 776 R. S. 1929. (3) A will contest case in Missouri is in the nature of an appeal or review of the finding of the probate court. The probate court in such proceedings having no authority to exercise original equitable jurisdiction, none can be so exercised on review of the proceedings by the circuit court. State ex rel. Baker v. Bird, 253 Mo 569; State ex rel. v. Guinotte, 156 Mo. 519. The circuit court has authority only to exercise equitable jurisdiction in a plenary proceeding expressly instituted therefor. No such authority is conferred upon it when it exercises appellate jurisdiction on review of findings of the probate court. The will contest, when instituted by a party in interest in the circuit court, vacates the interlocutory judgment of the probate court. Callahan v. Huhlman, 98 S.W.2d 705; State ex rel. Damon v. McQuillin, 246 Mo. 688. The institution of a will contest imposes upon the circuit court the duty of determining the question of will or no will. Benoist v. Murrin, 48 Mo. 51. And no motion can be filed by defendant in such will contest case, setting up other issues than that raised by petition in will contest case. After the institution of a will contest case by a person in interest, such contest cannot be dismissed without an adjudication upon the will. Further, the burden of proving the will is on the proponents (defendants in instant case). Benoist v. Murrin, 58 Mo. 322. (4) Such proceedings are purely statutory and the provisions of the statutes must be strictly complied with. Stowe v. Stowe, 140 Mo. 594. The sole issue in a will contest is whether the paper writing is or is not the last will of the deceased. That issue is for the jury to determine. Lilly v. Tobbein, 103 Mo. 477; Adams v. Kendrick, 11 S.W.2d 16; McCarthy v. First Natl. Bank & Trust Co., 30 S.W.2d 19. (5) Any person interested in the probate of any will shall appear within one year after the date of the probate or rejection thereof, by petition to the circuit court of the county, contesting the validity of the will or praying to have the will proved, which has been rejected -- and an issue shall be made whether the paper writing produced be the will of the deceased or not, which shall be tried by a jury, or if either party waive a jury, by the court. Sec. 537, R. S. 1929; Teckenbrock v. McLoughlin, 246 Mo. 711. (6) The jurisdiction which the circuit court acquires in a will contest is derivative and not original. It occupies the same position as an appeal from the probate court, in which the circuit court can only exercise such jurisdiction as the probate court had in the trial of the case below. Callahan v. Huhlman, 98 S.W.2d 705; State ex rel. v. Guinnotte, 156 Mo. 519; State ex rel. v. Bird, 253 Mo. 581; Johnson v. Brewn, 277 Mo. 392; Hyde v. Parks, 283 S.W. 727.

Jacob M. and Arthur V. Lashly for Yale College.

(1) Because a defendant in a suit at law is authorized by statute and judicial decision to plead an equitable counterclaim praying for affirmative relief where (as here) the relief, if granted, will extinguish plaintiff's suit and conclude the cause, and the orderly way to try the cause is for the trial court to first dispose of the issues invoked by the equitable counterclaim. Allen v. Logan, 96 Mo. 591, 10 S.W. 149; O'Day v. Conn, 131 Mo. 321, 32 S.W. 1109; Lewis v. Rhodes, 150 Mo. 498, 52 S.W. 11; Martin v. Turnbaugh, 153 Mo. 172, 54 S.W. 515; Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S.W. 1007; Colburn v. Kreming, 220 S.W. 934; Keltner v. Threlkel, 316 Mo. 609, 291 S.W. 462; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Babcock v. Rieger, 332 Mo. 528, 58 S.W.2d 722; Beckmann v. Beckmann, 51 S.W.2d 136; R. S. 1929, sec. 776. (2) Because defendant-respondent's equitable counterclaim complied with the provisions of the statute expressly authorizing a defendant to incorporate into his answer by way of a counterclaim new matter where, as here, the new matter alleged avoids plaintiff's alleged cause of action and right to sue. Dwyer v. Rohan, 99 Mo.App. 120, 73 S.W. 384; Ellyson v. Mo. P. & L. Co., 59 S.W.2d 714; In re Connor's Estate, 254 Mo. 65, 162 S.W. 252; Primeau v. Primeau, 317 Mo. 828, 297 S.W. 382. (3) Because the circuit court had authority to exercise "equitable" jurisdiction to determine the issues invoked by defendant-respondent's equitable counterclaim. Eddie v. Greene, 31 Mo. 513; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618. (4) The probate court order or judgment of July 16, 1932, purporting to grant plaintiff-appellant discretionary power to institute a suit to contest the will of Hugh Campbell, deceased, was not res judicata of the issues tendered by respondent's counterclaim because respondent (a) was not a party to the proceeding in which the order was made and entered; (b) was not served with process or otherwise notified of the proceeding upon which said order is founded; (c) the issues invoked by respondent's counterclaim were not raised or determined in the proceedings upon which the probate court order is predicated. Overshiner v. Britton, 169 Mo. 341, 69 S.W. 17; Henderson's Admr. v. Henderson, 21 Mo. 379; McClure v. Baker, 216 S.W. 1018; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Jasper County v. Wadlow, 82 Mo. 172; Jasper County v. Mickey, 4 S.W. 424; M., K. & T. Ry. Co. v. Am. Surety Co., 291 Mo. 92, 236 S.W. 657; Harper v. Hudgins, 211 S.W. 63; Webster v. Kuntz, 22 Colo.App. 111, 123 P. 139; Myers, Admx., v. Brown, 250 Ky. 64, 61 S.W.2d 1052; Johnson v. Knudson, 167 Ind. 429, 79 N.E. 367; Burns v. Baldwin-Doherty Co., 170 A. 511; Davis v. Morgan, 206 Ala. 576, 91 So. 318; Butler Stevens v. Moseley, 14 Ga.App. 288, 80 S.E. 789; Svalina v. Sarvana, 341 Ill. 236, 173 N.E. 281; Mound City Co. v. Castleman, 171 F. 520; Igano Land & Min. Co. v. Jones, 65 W.Va. 59, 64 S.E. 640; Civils v. First Natl. Bank, 41 Idaho 690, 241 P. 1023; 34 C. J., secs. 1411, 1499, pp. 944, 1061.

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

(1) The answers and "equitable counterclaims" constitute permissible and proper pleadings in this purported will contest suit. R. S. 1929, sec. 776. It being an essential part of a clause of action to contest a will that the plaintiff have an interest in the probate of a will. Gruender v. Frank, 267 Mo. 718, it was permissible and proper for the defendants in their answers to set up new matter showing that the contestant had no right to maintain the suit. (2) A suit in the form of a will contest, but brought by a person who has no right to contest the will, is not a will contest suit within the meaning of Section 537, Revised Statutes 1929, and may be dismissed without a trial by a jury. State ex rel. Damon v. McQuillin, 246 Mo. 689; Russell v. Nelson, 317 Mo. 152; Smith v. Smith, 327 Mo. 639. (3) Insane people are wards of chancery. All decisions made on behalf of an insane ward are subject to review by a court of equity, and no action taken on his behalf is properly authorized unless proceeding from such free election based upon benefit to the ward, as will bear the scrutiny of equity. In re Estate of Connor, 254 Mo. 76; Primeau v. Primeau, 317 Mo. 833; First Natl. Bank v. MacDonald, 100 Fla. 675; Carey v. Brown, 194 Minn. 127; In re Robinson's Estate, 88 Minn. 404; Harding v. Harding, 140 Ky. 277; In re Hanson's Guardianship, 67 Utah 256; In re Steenwyck v. Washburn, 59 Wis. 483; 2 Page on Wills (2 Ed.), section 1200.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This is a suit to contest what purports to be the last will and testament of Hugh Campbell, deceased. The suit was filed by Anton Schuler, guardian of the person and estate of Hazlett Kyle Campbell, a non compos mentis. Hazlett Kyle Campbell was a brother of the testator and his sole heir. Except for the will, he would have inherited the entire estate valued at over a million dollars. An answer and an equitable counterclaim were filed by the defendants, who were the beneficiaries of the estate. Upon a hearing on this counterclaim the trial court enjoined the prosecution of the...