Fedina's Estate v. Fedina

• Decision Date: 12 March 1973
• Docket Number: No. 2,No. 56050,56050,2
• Citation: Fedina's Estate v. Fedina, 491 S.W.2d 552 (Mo. 1973)
• Parties: In re ESTATE of William FEDINA, Deceased, et al., Appellants, v. Nikolay Ivanovich FEDINA et al., Respondents
• Court: Missouri Supreme Court

Page 552

491 S.W.2d 552

In re ESTATE of William FEDINA, Deceased, et al., Appellants, v. Nikolay Ivanovich FEDINA et al., Respondents.

No. 56050.

Supreme Court of Missouri, Division No. 2.

March 12, 1973.

Richard P. Nangle, George W. Curran, St. Louis, for appellants.

Smith, Hanke & Batts, by Harold C. Hanke, St. Louis, and David R. Hensley, Clayton, for respondents.

STOCKARD, Commissioner.

Appellants have appealed from the judgment of the Circuit Court of the City of St. Louis by which respondents were determined to be heirs of William Fedina, deceased, and by which the court ordered a partial distribution of his estate. At the time this appeal was filed this court had appellate jurisdiction by reason of the amount in dispute, and such jurisdiction is retained for final disposition of the case. Mo.Const. Art. V, § 31.

William Fedina, a resident of the City of St. Louis (hereafter referred to as the 'Deceased' or by name), died intestate and without direct descendants on December 31, 1964. Appellant Genevieve Singler Geisel, a grandniece, was appointed administratrix d.b.n. In a petition seeking such appointment she stated that she and William Fedina, a resident of the State of California and a nephew of the decedent, were the only heirs. Because of the identity of names, this nephew will be referred to as 'appellant nephew.'

On October 20, 1966, there was filed in the probate court on behalf of respondents an affidavit executed on August 25, 1965, by Nickolay Ivanovich Fedina, written in the Russian language with a translation to English, in which it was stated that affiant was a brother of the decedent, and that the other respondents were a brother and sisters of the decedent, all of whom lived in Russia.

Subsequently, and on October 11, 1967, respondents filed a petition, pursuant to § 473.613 RSMo 1969, for an order of partial distribution. Appellant nephew filed a motion to dismiss the petition on the grounds that respondents were 'strangers to the proceedings,' and it was alleged therein that 'each and every affidavit heretofore filed in behalf of said petitioners' is an ex parte self-serving instrument, executed by a living person who could be called as a witness, and for that reason the affidavits are 'inadmissible in evidence for the purpose of determining heirship upon which the right to a partial distribution is conditioned.'

After a hearing before the probate court, judgment was entered that the appellants and also the respondents were the heirs at law of the decedent, and a partial distribution as requested was ordered. From this order an appeal was taken to the circuit court where appellants renewed their motion to dismiss the petition for partial distribution, and in addition to the reasons assigned in the probate court, they asserted that the petition did not request or pray for an adjudication of heirship; that the probate court did not have jurisdiction to order partial distribution; and that due process was not satisfied because there was a failure to give proper notice of determination of heirship.

Respondents introduced in evidence signature cards from four banks and an application for employment, each purportedly containing the signature of the decedent. Two of the cards listed decedent's place of birth as Poland.

Mrs. Catherine Quinn, a resident of Warren, Michigan, testified that she was born in Bronitsa in the Ukraine, which at one time was a part of Poland but is now in Russia, and that when there she knew a Fedina family which consisted of the parents, John and Maria Fedina, and six children. She stated that four of the children were Anna, Tassie (Tatiana), Andrey, and Nikolay, the latter having married her sister, and that John and Maria Fedina had two other sons by the name of Mike and William (Vasily), who had gone to America, but she did not know them personally. She identified a photograph taken in 1926 in Bronitsa in the home of her sister, Anna, who was married to Nikolay, in which she, her sister, and Nikolay were shown. Mrs. Quinn also testified that her brother-in-law, Nikolay Fedina, wrote to her and told her that his brother William (the deceased) was in the United States, and that he gave her William's address. Nikolay later wrote to Mrs. Quinn that William had died.

Catherine Hook, age 84, was born in Bronitsa and came to America in 1906. She testified that she knew John and Maria Fedina in Bronitsa, and that they had six children, Anna, Mike, Andrey, Tatiana, Nikolay, and Villay (Vasily?). She also stated that Mike first came to America and that William came later; that she knew both of them in the United States; and that William played the violin at her wedding. After William died she caused a letter (she could neither read nor write except her name) to be written to her daughter in Bronitsa telling of his death. On cross-examination she admitted that she previously had told Jennie Fedina (divorced wife of Mike Fedina and Grandmother of appellant Genevieve Singler Geisel) that she knew nothing about relatives in Russia, but she later said that this conversation occurred after she had learned about the pending court proceedings, and that she did not want to go to court.

Respondents also offered in evidence an affidavit of Nikolay Ivanovich Fedina, a resident of Bronitsa, Russia, written in the Russian language with a translation into English attached thereto. In this affidavit Nikolay stated that he was the son of Ivan (John) and Maria Fedina, and the brother of Anna, Mikhail (Mike), Vasily (William), Andrey and Tatiana. He attached to the affidavit a letter which he stated he had received in 1934 from his brother William in the United States. He also attached three photographs showing William, Mike, and Mike's granddaughter, which he stated he had received by mail from William. Respondents also offered the testimony of an expert that the writing on the various exhibits which purportedly were written by the deceased had been written by the same person who had signed signature cards and the employment application.

In support of their position that respondents were 'strangers to the proceedings,' appellants each testified and presented the testimony of two others.

Jennie Fedina, the divorced wife of Mike Fedina, testified that she married Mike in 1910, and became acquainted with the deceased in 1912 and knew him until the time of his death. He stayed in her house at one time for a period of nine months. During the entire time she was acquainted with the deceased, there was never any conversation between her, Mike or the deceased concerning relatives in a foreign country, and the first she heard about relatives in Russia was when her son told her that someone had filed a claim against the estate claiming to be a relative. However, on cross-examination she admitted that after Mike died (1960) the deceased told her that he was going to write to his sister.

Anthony Singler, the father of appellant Genevieve Singler Geisel, testified that he married the daughter of Mike Fedina, and had met the deceased twice. During the time he was married, about three and one-half years, he never had a conversation with his wife concerning any relatives in a foreign country.

Appellant nephew, son of Mike, testified that neither his father nor the deceased, with whom he was acquainted, ever advised him of any relatives in a foreign country, and that he first learned that there were people who claimed to be heirs when he was advised that a claim had been filed. He identified a notice of the death of Mike which he said was prepared by the deceased, in which reference was made to 'Dear father of William Fedina; dear brother of William Fedina; dear father-in-law and grandfather.' No reference was made therein to respondents.

Genevieve Singler Geisel testified that neither Mike (her grandfather) nor the deceased ever had a conversation with her about any other brothers or sisters, and the first time she heard of any such other brothers or sisters was after a claim was filed against the estate.

Appellants assert that the trial court erred in ruling that the probate court, and the circuit court on appeal, had jurisdiction to determine the heirs of the decedent incident to the determination of a petition for partial distribution. Appellant argues that (a) neither § 473.613 nor any other statute specifically confers jurisdiction on the probate court to determine heirship; (b) on appeal from the probate court the jurisdiction of the circuit court is derivative only; and (c) jurisdiction to determine heirship was not invoked by respondent's petition for partial distribution because it failed to bring the case within the purview of any statute authorizing such determination.

Mo.Const. Art. V, § 16, provides that 'There shall be a probate court in each county with jurisdiction of all matters pertaining to probate business, * * *.' § 472.020 RSMo 1969, implements the constitutional provision, Henderson v. Allen, 440 S.W.2d 446 (Mo.1969), and provides that 'The probate court has jurisdiction over all matters pertaining to probate business, * * * (and, among other things) of the determination of heirship, * * *.' § 473.613 RSMo 1969, provides that upon 'application of any distributee after the expiration of six months from the date of letters, the court may order the executor or administrator to deliver to any distributee any specific real or personal property, or the possession thereof, to which he is entitled or may decree partial distribution if the court believes that other distributees and claimants are not prejudiced thereby.'

Appellants argue that the provision in § 470.020 pertaining to the determination of heirs 'is nothing more than a recital of the jurisdiction of the probate court' and 'confers no specific power' to make such determination in a proceeding for partial distribution, and that a probate court has no powers not specifically conferred by statute, even...