Godsy v. Godsy

• Court: Missouri Court of Appeals
• Writing for the Court: FLANIGAN; HOGAN
• Citation: Godsy v. Godsy, 531 S.W.2d 547 (Mo. App. 1975)
• Decision Date: 23 December 1975
• Docket Number: No. 9720,9720
• Parties: John H. GODSY et al., Plaintiffs-Appellants, v. Gladys GODSY et al., Defendants-Respondents.

Page 547

531 S.W.2d 547

John H. GODSY et al., Plaintiffs-Appellants, v. Gladys GODSY et al., Defendants-Respondents.

No. 9720.

Missouri Court of Appeals, Springfield District.

Dec. 23, 1975.

Robert C. Jones, Jones & McDaniel, Kansas City, Esco V. Kell, West Plains, for plaintiffs-appellants.

John C. Holstein, Moore & Brill, West Plains, Dorman L. Steelman, Salem, for defendants-respondents.

Before STONE, P.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

This is a will contest, the procedure for which is contained in § 473.083 V.A.M.S.

Plaintiffs-appellants are the brother, two sisters, and the lineal descendants of a deceased sister of the testatrix Alta Godsy, who died on February 4, 1966. Alta Godsy was not survived by a husband or by lineal descendants.

Defendants-respondents are Gladys Godsy (sued individually and as executrix of the last will of Alta Godsy) and nine children of Hiram Godsy. Hiram, a brother of the testatrix, predeceased her.

The attacked will was dated April 29, 1963. Hiram died in 1964. In July 1966, the will was admitted to probate in the probate court of Howell County, Missouri, and letters testamentary were issued to defendant Gladys Godsy. Gladys is the widow of Hiram and the mother of at least seven of the defendants.

The original petition was filed on April 7, 1967. Hiram's children were not named as defendants. The only defendants named therein were Gladys Godsy, individually, and Gladys Godsy in her capacity as executrix of the will. On September 12, 1967, Gladys filed a 'Motion to Abate' on the ground that plaintiffs 'have not included (Hiram's children) as parties defendant.' That motion was denied.

On October 27, 1972, the plaintiffs filed a motion for leave to amend their poetition 'to make (Hiram's children) parties defendant in this action.' The motion described Hiram's children as 'beneficiaries under said purported will.' The motion was granted and on December 7, 1972, the plaintiffs filed their amended petition. Prior to the filing of that document, which named Hiram's nine children as defendants, ¹ they had not been so named. Separate summonses, directed to each of Hiram's nine children, were issued, the earliest being date December 8, 1972.

On January 5, 1973, three of Hiram's children filed a motion to dismiss, based on three grounds which were:

1. 'The statute of limitations has run on the claim filed herein against these defendants.'

2. Plaintiffs had failed to comply with § 473.083(1) V. A.M.S. ²--the 'six months provision' with regard to filing the petition.

3. Plaintiffs had failed to comply with § 473.083(4) V. A.M.S. ³--the '60 days provision' with regard to service of process upon all defendants.

Also in January 1973, four other children of Hiram filed a motion to dismiss on the same grounds except that the one alleging noncompliance with § 473.083(4) mentioned 90 days rather than 60 days.

The court entered an order sustaining both motions to dismiss and plaintiffs appeal from this order. The appeal fails.

In its order the trial court did not state the ground or grounds on which it relied. The dismissal is valid if any of the grounds was valid, whether or not it induced the order. Spiking Sch. Dist. v. Purported Enlarged Sch. D., etc., 362 Mo. 848, 245 S.W.2d 13, 16(2) (banc 1952); Gruetzemacher v. Billings, 348 S.W.2d 952, 955(1) (Mo.1961).

The right to contest a will does not exist independently of statutory authority and it can be exercised only 'in accordance with and within the limits prescribed by statute.' Blatt v. Haile, 291 S.W.2d 85, 88 (Mo.1956). Section 473.083 confers jurisdiction upon the circuit court in derogation of common law, Haas v. Haas, 504 S.W.2d 44, 46 (Mo.1973), and 'after the lapse of the prescribed period the court has no jurisdiction over the subject matter of the contest.' Sanderson v. Richardson, 432 S.W.2d 625, 630 (Mo.App.1968).

Plaintiffs assert that they did comply with § 473.083 and they develop this contention with their 'points relied on.' The latter are:

1. Hiram's children were not necessary parties to the action.

2. Even if Hiram's children were necessary parties, plaintiffs have shown the 'good cause' mentioned in § 473.083(4).

3. Because of alleged 'deceptions' on the part of Gladys Godsy, Hiram's children 'are estopped from defending this action on the ground that (it) is barred by the statute of limitations.'

The first question for resolution is whether Hiram's children were necessary parties.

Both the petition and the amended petition alleged that Alta, on the date of her death, had 'a large amount of property and that most of said property was personal property consisting of cash, promissory notes, and certificates of time deposit (sic) and the like.'

Alta's will, the contents of which were set forth in both petitions, made nominal bequests to some of the plaintiffs and devised and bequeathed the residue 'to my beloved brother, Hiram Godsy.' Article III of the will contained this language: 'In the event that any of the persons named by me in this will to whom bequest has bene made should predecease me, I bequeath his or her share to the bodily heirs of such person.'

Section 474.460 V.A.M.S. reads: 'When any estate is devised to any child, grandchild or other relative of the testator, and the devisee dies before the testator, leaving lineal descendants, the descendants shall take the estate, real or personal, as the devisee would have done if he had survived the testator.'

Section 472.010(7) V.A.M.S., in defining the word 'devise' when used as a verb, reads: 'It means to dispose of real or personal property or both by will.'

Additional definitions contained in § 472.010 are:

(8) 'Devisee' includes 'legatee.'

(19) 'Legatee' means a person entitled to personal property under a will.

The foregoing definitions apply to § 474.460 since that statute is a part of the 'Probate Code' as that term is defined in § 472.010(5).

Hiram's children, of course, are his 'lineal descendants.' If, which need not be decided, § 474.460 operates on the gift of the residue to Hiram, they would take 'the estate as (Hiram) would have done' if he had survived Alta.

A distinguished authority on Missouri probate law, in discussing § 474.460 V.A.M.S., says: 'While no Missouri decision has expressly so declared, the statute does not operate to prevent the operation of an express devise over upon the death of the primary devisee prior to the death of the testator.' Missouri Practice, Probate Law and Practice, Maus, Vol. 4, § 1468, p. 600.

If the language of Article III of the will, quoted above, operates on the gift of the residue to Hiram, each of Hiram's children, being included in the term 'bodily heirs,' ⁴ participates in Hiram's share.

Accordingly, under the language of Article III of the will and under § 474.460 V. A.M.S. ⁵ one of which must operate on the gift of the residue to Hiram, each of Hiram's children is a legatee. 'A legatee is a necessary party to a suit to set aside a will.' Kane v. Mercantile Trust Co. National Association, 513 S.W.2d 362, 363(2) (Mo.1974).

The dismissal was valid because service of process was not 'secured and completed upon all parties defendant's within the period prescribed by § 473.083(4) and there was no showing by plaintiffs of 'good cause for failure to secure and complete service' within the meaning of that statute.

In Doran v. Wurth, 475 S.W.2d 49 (Mo.1971) a will contest was filed. Legatees under the will were Anna Wurth and other people. Only Anna was named as a defendant. More than 60 days (the period then mentioned in § 473.083(4)) after the petition was filed, plaintiffs filed an amended petition adding the other legatees as defendants. The trial court dismissed the action and the plaintiffs (contestants) appealed.

It was agreed that the belatedly joined legatees were necessary parties and contestants made no attempt to show good cause for failure to secure and complete service. Contestants relied upon Gresham v. Talbott, 326 Mo. 517, 31 S.W.2d 766 (1930) which held that necessary parties to a will contest could be brought in by amendment of the petition after the running of the statutory period in which such suits may be instituted, where the suit was brought within the statutory period.

In Doran the respondents successfully argued that the legislature changed the law by adding to § 473.083 the counterpart of what is now § 473.083(4).

The supreme court stated that the amendment was a legislative declaration 'that a contest of a will admitted to probate shall be expeditiously prosecuted or not at all.'

At p. 51 of 475 S.W.2d the court said: 'In our opinion, the General Assembly intended, by its amendment to the 'will contest' statute, that, absent good cause for failure, all necessary party defendants be named and served within the prescribed period. The trial court properly dismissed the action.'

In Kane v. Mercantile Trust Co. National Association, 513 S.W.2d 362 (Mo.1974) the supreme court upheld the judgment of the trial court which dismissed a will contest on the ground that plaintiffs failed to secure and complete service of process on all necessary parties defendant within 90 days following the filing of the petition.

The petition had failed to name as a defendant a certain legatee. That legatee was, in the language of the will, 'the pastor or acting pastor of the New Cathedral Church located at Newstead Avenue and Lindell Blvd. in St. Louis, Missouri.' The court held that the unnamed but identified pastor was a necessary party and that, because he was not named and served within the statutory period and there was no showing of good cause for failing to do so, the action was properly dismissed.

In support of their contention that Hiram's children were not necessary parties, plaintiffs state that the amended petition did not charge Hiram's children 'with any law violation relative to the last will of Alta Godsy' and that 'calling them defe...