Freeman v. De Hart, 29750

• Decision Date: 14 June 1957
• Docket Number: No. 29750,29750
• Citation: 303 S.W.2d 217
• Parties: Ray FREEMAN, Ethel Freeman, and John C. Kappel, Jr. (Plaintiffs), Appellants, v. Gertrude Ament DE HART et al. (Defendants), Respondents.
• Court: Missouri Court of Appeals

Page 217

303 S.W.2d 217

Ray FREEMAN, Ethel Freeman, and John C. Kappel, Jr.

(Plaintiffs), Appellants,

v.

Gertrude Ament DE HART et al. (Defendants), Respondents.

No. 29750.

St. Louis Court of Appeals, Missouri.

June 14, 1957.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 1, 1957.

Kappel & Neill, Walter S. Berkman, Lester W. Spilker, St. Louis, for appellants.

Edwin A. Smith, St. Louis, for respondents.

ANDERSON, Judge.

This is a proceeding to contest the will of Adele M. Scholl, deceased. Contestants, Ray and Ethel Freeman, are legatees named in a prior will. Contestant John C. Kappel, Jr., is named as executor in said prior will, with power to distribute the residuary estate to various charities of his own selection. The proponents of the will moved to dismiss the petition and cause of action on the ground that the contestants were not proper parties under Section 468.580 RSMo 1949, V.A.M.S. c. 475 Appendix. On March 19, 1956, the court sustained this motion as to John C. Kappel, Jr., but overruled same as to the Freemans. The trial resulted in a finding by the jury that the writing in question was the last will of the deceased, and judgment was entered accordingly. John C. Kappel, Jr., has appealed from the order and judgment of March 19, 1956; and the Freemans, together with John C Kappel, Jr., have appealed from the judgment on the verdict. The appeals were to the Supreme Court. Subsequently, the Supreme Court, on the ground that it was without jurisdiction, transferred said causes to this court. The separate appeals have been consolidated here for hearing.

Appellants' first point is that the jurisdiction of this appeal is in the Supreme Court for the reason that the amount in dispute is in excess of $7,500. Appellants urge that we so hold and that the case be retransferred to the Supreme Court.

The will in question was executed on September 17, 1954. By its terms eighteen specific bequests were made to individuals and various charitable institutions. The residue of the estate was left to certain relatives. Ethel Freeman was bequeathed the dining room furniture together with the china set and dishes belonging to testatrix. No bequest was made to Ray Freeman. Dorothy Greulich was named executrix. Edwin A. Smith was nominated executor in the event Dorothy Greulich was unable or unwilling to act as executrix.

The prior will was executed on May 19, 1954, and proved in the Probate Court within a year from the date of the death of testatrix. By its terms, Ethel Freeman was bequeathed the dining room furniture together with the china set and dishes belonging to the testatrix. She and her husband, Ray Freeman, were, by Article III of said will, given the sum of $1,000. The other specific bequests were the same as in the will of September 17, 1954, except that in the later will bequests to the Shriners' Hospital and the Little Sisters of the Poor were increased from $1,000 each to $2,000 each. By the residuary clause it was provided that the rest, residue and remainder of the estate was devised and bequeathed 'to such charities and charitable organizations as my hereinafter named executor shall select and determine in such proportions and amounts as he shall in his sole discretion deem advisable, and I hereby direct that he shall designate the recipients thereof during the administration of my estate in writing filed with the Probate Court in which my estate is administered, * * *.' John C. Kappel, Jr., was nominated as executor.

Appellate jurisdiction in this case turns on the amount in dispute between the parties. That amount must be determined by ascertaining the value in money of the relief to plaintiff, or of the loss to defendant, should the relief be granted, or, vice versa, should the relief be denied. Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149.

It is urged by appellants that the record shows the loss to the parties given the residuary estate would be in excess of $7,500 should their contest be upheld. They say that the record shows the estate as valued at $59,397.72; that the specific legacies amount to $20,500; that all expenses of the estate have been paid; and that the amount of pending claims, three in number, amount to $15,820.50, leaving a net value of the residue at $23,077.22.

That part of the record which appellants claim substantiates their calculation appears in the transcript as follows:

'Mr. Berkman: Your Honor, please, at this time I want to read a portion of proponents Exhibit B, which is the official court file in the estate of Adele Scholl.

'The Court: All right.

'Mr. Berkman: This file shows, gentlemen of the jury, that as of September 28, 1955, a statement was filed in which Mr. Smith took an acknowledgment showing that the value of this estate as of that date was $59,397.72. That is, all the bills against the estate, except claims of Percy Bryant and the Freemans, have been paid.

'Mr. Smith: I object to that. That has nothing to do with this lawsuit.

It is wholly irrelevant and immaterial to the issues in this case.

* * *

* * *

'The Court: What is the purpose of this?

'Mr. Berkman: I have to establish jurisdiction, your Honor.

'Mr. Smith: The amount establishes jurisdiction?

'Mr. Berkman: No, it doesn't. For instance, it is a jurisdiction question. It has got to appear prima faciely.

* * *

* * *

'The Court: The Court will take jurisdiction. There is nothing there for jurisdiction. Let's not get into matters like that.'

The effect of the court's ruling when he said: 'Let's not get into matters like that,' was to exclude the paper which appellants' counsel was attempting to introduce. Therefore there is no evidence in the record showing the value of the assets of the estate, and without such evidence there is no way to determine the value of the residuary estate--the amount in dispute. But, even if the paper, whatever it was, did get into evidence, and assuming that it showed that all bills and claims had been paid as of its date, September 28, 1955, it does not affirmatively show that all the claims against the estate were in at the time, since the time for filing claims had not expired. For aught that appears, claims against the estate subsequently exhibited may have reduced the net value of the residuary estate to less than $7,500. In our judgment, the record fails to affirmatively show that the amount in dispute in this case is in excess of $7,500. Whitworth v. Monahan's Estate, 339 Mo. 1123, 100 S.W.2d 460; Bostian v. Milens, 354 Mo. 153, 188 S.W.2d 945; Nies v. Stone, Mo.Sup., 108 S.W.2d 349; Smith v. Oliver, Mo.Sup., 148 S.W.2d 795; In re Ellis' Estate, Mo.Sup., 127 S.W.2d 441; Aurien v. Security Nat. Bank Savings & Trust Co. of St. Louis, Mo.Sup., 129 S.W.2d 1047.

At the threshold of the case we are confronted with the question as to whether we have jurisdiction of John C. Kappel, Jr.'s appeal from the order and judgment of March 19, 1956. The copy of the notice of appeal, sent to the Supreme Court pursuant to the provisions of Section 512.070 RSMo 1949, V.A.M.S., recites that the appeal is from the order and judgment entered on the 19th of March, 1956. It is dated September 5, 1956. The order and judgment of March 19, 1956, was the one sustaining, as to plaintiff John C. Kappel, Jr., defendants' motion to dismiss on the ground that he was not a proper party plaintiff under the provisions of Section 468.580 RSMo 1949, V.A.M.S. c. 475 Appendix. This order had the force and effect of finally disposing of the cause as to John C. Kappel, Jr., and was appealable. Bruun v. Katz Drug Co., Mo.Sup., 211 S.W.2d 918; Hoefer v. Wease, Mo.App., 104 S.W.2d 721; Beechwood v. Joplin-Pittsburg R. Co., 173 Mo.App. 371, 158 S.W. 868, 871. In the latter case a trustee in bankruptcy was substituted for the plaintiff in his action for personal injuries. Plaintiff appealed from said order, and it was urged by respondent that the appeal was premature. This contention was not allowed. The court pointed out that the order appealed from had the effect of adjudging that the title of the plaintiff's cause of action rested in the trustee, and that plaintiff no longer had any interest in the same, and that consequently it was a final disposal of the case so far as the original plaintiff was concerned. The court also placed emphasis on the fact that the plaintiff was completely severed from the cause of action and hence could not appeal at any later stage, so that his appeal was not premature. The court said:

'The effect then of the order in question was the same as the dismissal of the case as to plaintiff, and the institution of a new suit by the trustee.

It was a final disposal of the case so far as this plaintiff is concerned. * * * It has been frequently held that an appeal will lie from an order or judgment completely disposing of any collateral matter on the ground that the court's jurisdiction has been exhausted as to the matter decided. * * *

'It is true that it has frequently been ruled that a judgment is not final, so as to be appealable, unless the judgment disposes of all the parties to an action, and that there cannot be but one final judgment in a case. [Citing cases.] It will be found, however, in all these cases that the plaintiff still remained as a party to the cause, and that there was some matter left undetermined between him and some defendant, and that the appeal was merely premature; the right of appeal remaining in plaintiff at some later stage of the case. In this case, however, plaintiff is completely severed from the cause of action--it is no longer his but another's--and he cannot appeal at any later stage. His appeal is not premature. Whatever steps may be taken further in this matter are not taken in plaintiff's case, but in the case of I. N. Threlkeld, trustee, against the defendant.'

As heretofore stated, the order and judgment appealed from was entered March 19, 1956. No motion to set aside, or motion for rehearing, was filed...