Davis v. Davis, 44220
| Decision Date | 12 December 1955 |
| Docket Number | No. 2,No. 44220,44220,2 |
| Parties | Marie DAVIS, Respondent, v. Henry DAVIS, Administrator of the Estate of Carrie Young, Deceased, Appellant, and Mrs. Clyde Ridley, Mrs. Clyde Ridley, Administratrix of the Estate of Louegenia Wofford, Deceased, Mrs. Annie Williams, Rose Williams, Bennie Williams, Dr. J. C. Harrston and Hallie Q. West, Respondents |
| Court | Missouri Supreme Court |
N. Murray Edwards, Ninian M. Edwards, St. Louis, for appellant.
Cox, Cox & Cox, Harvey B. Cox, William A. Moffitt, Jr., Alexander M. Goodman, St. Louis, for respondents.
STOCKARD, Commissioner.
This is an appeal by the administrator of the estate of Carrie Young, deceased, from the judgment that a paper writing dated October 30, 1943, constituted the last will and testament of Louegenia Wofford, deceased. The will disposed of property valued at more than $20,000.
Louegenia Wofford executed a will on May 18, 1943, and a second will on October 30 of the same year. She died on March 21, 1944, and the second will was admitted to probate on April 11, 1944. Marie Davis instituted a proceeding to contest the second will in which Carrie Young, the sister and sole heir at law of Louegenia Wofford, intervened and filed an answer and a crosspetition. Carrie Young was not named as a beneficiary in either will. In her answer she admitted the truth of the allegations in the petition filed by Marie Davis which contested the second will on the grounds of undue influence and mental incompetency of the testatrix, and she expressly adopted such allegations by reference as a part of her answer. She also denied that the first will was properly signed and witnessed while Louegenia Wofford was of sound mind. In the cross-petition Carrie Young challenged the sufficiency of both wills on the grounds of undue influence and mental incompetency of testatrix.
Carrie Young died, intestate, on May 5, 1945, and a motion to revive the cause in the name of Henry Davis, administrator of the estate of Carrie Young, deceased, the appellant herein, was filed on July 28, 1945, and sustained on August 16, 1946. Thereafter, on March 27, 1951, the trial court dismissed the cross-petition with prejudice, and in Davis v. Davis, Mo., 252 S.W.2d 521, 522, this court affirmed that action of the trial court. Reference is made to the opinion in that case for the reasons for the ruling.
On December 17, 1953, the will contest suit of Marie Davis came on for trial, and the trial court then sustained a motion to strike the answer of appellant and refused to permit counsel for appellant to participate in the trial of the case. A jury was waived by the plaintiff and by the proponents. Evidence was introduced to the court without a jury and judgment was entered sustaining the second will.
Appellant contends on this appeal that he was entitled to participate in the trial of the case, to present evidence and demand a jury trial because, even though his cross-petition had been dismissed, he 'remained a party defendant to this action on his answer previously filed.' he asserts as error the action of the trial court in striking his answer, in permitting the case to be tried without a jury over his objection, in failing to present to a jury the evidence of appellant that Louegenia Wofford was of unsound mind at the time of making her second will, and in refusing to permit him to participate in the trial.
In the previous appeal, taken when the trial court dismissed appellant's cross-petition, this court held: Davis v. Davis, supra.
The question decided in Davis v. Davis, supra, was whether appellant had the right to contest the second will, not whether the use of a cross-petition was the proper means of doing so. The cross-petition was dismissed because it was a means of attempting to contest the second will which appellant had no right to do. The answer of appellant, insofar as it made reference to the second will, consisted only of an adoption of the allegations in the petition of Marie Davis which constituted a contest of the second will. Although worded differently, the substance of the allegations incorporated by reference into the answer and the allegations in the cross-petition were substantially the same. They raised the same issues, that is, undue influence by the proponents of the second will and the mental competency of Louegenia Wofford to make a will. Those allegations incorporated by reference into the answer constituted a contest by the appellant of the second will of Louegenia Wofford, which is exactly what this court in Davis v. Davis, supra, ruled that appellant did not have the right to do. See also Braeuel v. Reuther, 270 Mo. 603, 193 S.W. 283, L.R.A.1918A, 444, Ann.Cas.1918b, 533; Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935, 129 A.L.R. 316. The question if appellant has the right to contest the second will of Louegenia Wofford has already been decided adversely to him in a prior suit between the same parties. That issue is res judicata and can not be re-litigated whether subsequently raised by another cross-petition, an answer or by some other pleading. In re Delany's Estate, Mo., 258 S.W.2d 613; Brink v. Kansas City, 358 Mo. 845, 217 S.W.2d 507; Shay v. New York Life Ins. Co., 354 Mo. 920, 192 S.W.2d 421; Laughlin v. Boatmen's National Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974.
Appellant's answer also challenged the sufficiency of the first will. In Davis v. Davis, supra, this court ruled that the trial court could not adjudicate a contest of the first will in the proceeding pending before it. The only judgment of the probate court in effect when the instant proceeding was instituted was the judgment admitting the second will to probate. Whether the first will should be probated or rejected as the last will and testament of Louegenia Wofford, in the event the second will was set aside, was not before the trial court. Probate courts have exclusive jurisdiction over the probate or rejection of wills and the circuit courts have only derivative jurisdiction. Breeding v. Pack, Mo., 164 S.W.2d 929; Fletcher v. Ringo, Mo., 164 S.W.2d 904; Davis v. Davis, supra.
The answer of appellant contained only allegations which constituted a contest of either the first or the second will of Louegenia Wofford. Appellant did not have the right to contest either will in the instant proceeding. Therefore, the trial court properly sustained the motion to strike the answer. Section 509.320 RSMo 1949, V.A.M.S.
The appellant contends that the trial court erred in permitting the trial of the will contest suit of Marie Davis without a jury over his objection, and that such action violated the due process provisions of the constitutions of Missouri and the United States, and also violated Article I,...
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