Estate of Main v. Main, Exec.

• Decision Date: 26 May 1941
• Docket Number: No. 19951.,19951.
• Citation: 152 S.W.2d 696
• Parties: ESTATE OF MARTHA L. MAIN, DECEASED, KINZEA COX, ADMINISTRATOR ET AL., RESPONDENTS, v. GEORGE CLINTON MAIN, EXECUTOR OF THE ESTATE OF DEWITT C. MAIN, DECEASED, APPELLANT.
• Court: Missouri Court of Appeals

152 S.W.2d 696

ESTATE OF MARTHA L. MAIN, DECEASED, KINZEA COX, ADMINISTRATOR ET AL., RESPONDENTS, v. GEORGE CLINTON MAIN, EXECUTOR OF THE ESTATE OF DEWITT C. MAIN, DECEASED, APPELLANT.

No. 19951.

Kansas City Court of Appeals, Missouri.

May 26, 1941. Transferred from Supreme Court — 146 S.W. (2d) 597.

Appeal from Jackson Circuit Court. — Hon. Paul A. Buzard, Judge.

AFFIRMED.

James H. Hull, David R. Clevenger and Madden, Freeman & Madden for respondents.

(1) The probate court does not have jurisdiction over equitable actions. Appellant's application to have the assets of the estate of Martha L. Main declared a trust was an application calling for the determination of equitable issues and, hence, calling for the determination of issues which were beyond the jurisdiction of the probate court, and the purported order and judgment of that court were void and were properly set aside on respondents' motion. (1) Appellant's application to have the assets of the Estate of Martha L. Main declared a trust called for the determination of equitable issues and was in fact an equitable action. Jenkins v. Morrow, 131 Mo. App. 288; Orr v. St. Louis Union Trust Co., 291 Mo. 383, 404; Clay v. Walker (Mo. App.), 6 S.W. (2d) 961. (2) The probate court does not have jurisdiction over equitable actions. Peck v. Fillingham's Estate (Mo. App.), 202 S.W. 465; Jenkins v. Morrow, supra; In re Estate of Glover & Shepley, 127 Mo. 153; Ivie v. Ewing, 120 Mo. App. 124; Dietrich v. Jones, 53 S.W. (2d) 1059; State ex rel. Baker v. Bird, 253 Mo. 569. (3) The judgment and order of the probate court purporting to declare the assets of this estate a trust (order dated February 1, 1937) was void, and these respondents followed recognized and proper procedure in moving to have this void order vacated. Sec. 1101, R.S. Mo., 1929; In re Graves Estate, 73 S.W. (2d) 844; Crabtree v. Aetna Life Ins. Co. (Mo.), 111 S.W. (2d) 103, 106; Craig v. Smith, 65 Mo. 536; Hanne v. Watters (Mo. App.), 47 S.W. (2d) 182; Peeters v. Schultz, 300 Mo. 324, 254 S.W. 182; Walther v. Null, 233 Mo. 104, 134 S.W. 993; Jeude v. Simms, 258 Mo. 26, 39. (4) The circuit court on appeal properly affirmed the action of the probate court in sustaining respondents' motion to vacate the order and judgment of February 1, 1937. In re Campbell's Estate, 274 Mo. 343; State ex rel. Burns v. Woolfolk, 303 Mo. 589. (2) Even if appellant's "Petition for Order Declaring Personal Property Held by Deceased a Trust" is regarded as a demand against the estate of Martha L. Main, the judgment and decree entered by the probate court on February 1, 1937, is nevertheless void, first, because no affidavit of demand was filed as required by the terms and provisions of Sec. 193, R.S. Mo. 1929; secondly, because notice of demand was not given as required by Secs. 186 and 195, R.S. Mo. 1929; thirdly, because said demand was not established by competent legal evidence before the court, as required by Sec. 198, R.S. Mo. 1929; fourthly, because the judgment entered by the probate court does not purport to establish or classify a demand against the estate; and fifthly, that portion of the judgment purporting to establish a gift is void because (a) it was outside the issues raised by the application, (b) it, like the judgment in its entirety, was entered without the hearing of evidence, and (c) it is inconsistent on its face with the balance of the judgment. (a) The judgment is void because no affidavit of demand was filed as required by the terms and provisions of Sec. 193, R.S. Mo. 1929. Sec. 193, R.S. Mo. 1929 (Mo. Stat. Ann., p. 127); Hanne v. Watters, 47 S.W. (2d) 182; Feurt v. Lotspeich, 273 S.W. 240; Jenkins v. Morrow, 131 Mo. App. 288, 298; St. Louis Fire & Marine Ins. Co. v. Wagner, 119 S.W. (2d) 1007. (2) The judgment is void because notice of said "demand" was not given as required by Secs. 186 and 195, R.S. Mo. 1929. Secs. 186, 195, R.S. Mo. 1929 (Mo. Stat. Ann., pp. 115, 128). (3) The judgment is void because said "demand" was not established by competent legal evidence before the court as required by Sec. 198, R.S. Mo. 1929. Sec. 198, R.S. Mo. 1929 (Mo. Stat. Ann., p. 131); In re Graves Estate, 73 S.W. (2d) 844. (4) The judgment is void because it does not purport to establish or classify a demand against the estate. Sec. 206, R.S. Mo. 1929 (Mo. Stat Ann., p. 134); Jenkins v. Morrow, 131 Mo. App. 288, 299. (5) That portion of the judgment purporting to establish a gift is void because (a) it was outside the issues raised by the application, (b) it, like the judgment in its entirety, was entered without the hearing of evidence, and (c) it is inconsistent on its face with the balance of the judgment. Burns v. Ames Realty Co., 31 S.W. (2d) 274; Hecker v. Bleish, 319 Mo. 149, 3 S.W. (2d) 1008, 1019; Friedel v. Bailey, 44 S.W. (2d) 9, 15; Palmer v. Marshall, 24 S.W. (2d) 299, 235; State ex rel. v. Seehorn, 125 S.W. (2d) 851; Erie City Iron Works v. Ferer (Mo. App.), 263 S.W. 1008. (3) The arguments advanced and the cases cited in appellant's brief in no wise tend to establish the validity of the judgment entered by the probate court on February 1, 1937.

John F. Cell and John R. James for appellants.

(1) The jurisdiction of the probate court made in the exercise of its statutory powers over subjects conferred upon it by law is entitled to the same favorable presumptions arising from either the affirmative statements or the silence of its records as are accorded in similar cases to the circuit courts. Oldaker v. Spiking, 210 S.W. 59, 62 (1), citing many authorities; Viehman et al. v. Viehman, 298 Mo. 356, 250 S.W. 565. (2) The term of court at which the judgment or order was made by the probate court was made, to-wit: February 1, 1937, of the November Term, 1936, which ended on the 3rd Monday in February, 1937, and in the absence of fraud upon the court a motion at a subsequent term gave the court no jurisdiction. Lovitt v. Russell, 138 Mo. 474, 40 S.W. 123, 125; Seigle v. First Nat. Co., 90 S.W. (2d) 776, 780; Clancy v. Realty Co., 10 S.W. (2d) 914, 915; Newell v. Schill, 231 S.W. 643; In re Fritch Estate, 179 Mo. App. 434; Lucitt v. Toohey, 338 Mo. 343. (3) The petition filed by DeWitt C. Main for the stocks in question and in the probate court upon which the administrator pro tem took evidence and made his report and upon which the probate court made its judgment February 1, 1937, when fairly read as a whole will show that it was for the determination of title to the stocks and not for the declaration of a trust. The legal character of a paper filed in a case should be determined from its substance and effect and not from its name. Likewise where the allegations of the petition are ambiguous or susceptible of two constructions, the prayer may be looked to for the purpose of ascertaining the intention of the pleader. McCafferty v. Clay (Mo.), 18 S.W. (2d) 569, 571; Calmar v. Cox, 296 S.W. 845; Central Am. S.S. v. Mobile & O.R. Co., 144 Mo. App. 43, 128 S.W. 822; O'Donnell v. B. & O.R.R. Co. (Mo.), 26 S.W. (2d) 929, 935. (4) The motion of the collateral heirs of Mrs. Main nowhere alleges nor does the record contain any evidence that the judgment or order made by the probate court, February, 1937, was procured by fraud. The fraud for which a judgment may be vacated must be in the procurement of the judgment. F.G. Oxley Stove Co. v. Butler Co., 121 Mo. 614, 26 S.W. 367; Fears v. Riley, 148 Mo. 49, 49 S.W. 836; Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146. (5) The Probate Statutes of Missouri, under which the proceeding at bar was had, are novel in character and under them the probate court has jurisdiction to hear and decide the right to title and possession of personal property. R.S. Mo. 1929, secs. 63, 67; In re Estate of Huffman, 132 Mo. App. 44, 111 S.W. 848, 853; Clinton v. Clinton, 223 Mo. 371, 123 S.W. 1, 5; Mosley v. Prendiville, 295 S.W. 563; Eans v. Eans, 79 Mo. 53, 63-4-5. (6) The only evidence in the record is that taken by the administrator pro tem and upon which the judgment of February 1, 1937 was made awarding the stocks to D.C. Main, and the judgment against appellant was made without hearing and contrary to all the evidence in the record, such judgment clearly denied appellant of his day in court and of due process of law.

BLAND, J.

This is an appeal from a judgment of the circuit court, affirming a judgment or order of the probate court. The judgment affirmed was one sustaining respondents' motion to set aside an order previously entered by the probate court, declaring that certain personal property of the estate of Martha L. Main, deceased, was trust property and should be turned over to the beneficiary, DeWitt C. Main, the husband of said Martha L. Main.

The facts show that Martha L. Main, a resident of Jackson County, died on April 23, 1936. On May 19, 1936, DeWitt C. Main, her surviving husband, filed in the Probate Court of Jackson County, an application for an order refusing letters of administration, in which application, said DeWitt C. Main, stated that the value of the estate did not exceed $50, but that there was other personal property consisting of stocks in a lock box in a Kansas City bank, which property was that of the applicant. The application was sustained, and Mr. Main was thus enabled to gain access to the safety deposit box. However, it appears that he encountered some difficulty in having the stocks transferred to him on the books of the corporations issuing them because they stood in the name of deceased. So, on June 19, 1936, he filed, in the probate court, a motion to set aside the order of refusal of letters of administration, stating that since the time that the order for refusal of letters of administration had been made, the safe deposit box had been opened, and that there was found therein certain certificates of stock taken in the name of Martha L. Main, deceased, and held on the books of the various companies in her name. The applicant claimed...