Gresham v. Talbott

• Decision Date: 14 October 1930
• Citation: 31 S.W.2d 766,326 Mo. 517
• Parties: Violet Gresham, Appellant, v. James K. Talbot, Executor of Estate of Louis Coleman, Anna Phillips and Marjorie Louise Athey
• Court: Missouri Supreme Court

31 S.W.2d 766

326 Mo. 517

Violet Gresham, Appellant, v. James K. Talbot, Executor of Estate of Louis Coleman, Anna Phillips and Marjorie Louise Athey

Supreme Court of Missouri

October 14, 1930

Appeal from Lewis Circuit Court; Hon. James A. Cooley Judge.

Reversed and remanded.

J S. Tall and A. F. Haney for appellant.

(1) There are no decisions which hold that the failure of plaintiff to make one of the devisees a party defendant in the proceeding within one year after the probate of the will would be ground for the dismissal of the petition. On the contrary, what decisions we are able to find indicate that it is the practice of this court, in will cases, to permit (and even direct) the amendment of the petition bringing in devisees as new parties defendant after the expiration of said period of time. Spurr v. Spurr, 285 Mo. 163 226 S.W. 35; Clark v. Crandall (Mo.), 5 S.W.2d 383; Parke v. Smith (Mo.), 211 S.W. 62. (2) It is true that it is a general rule that where a new party defendant is brought into the case by an amendment of the petition made after the statutory period of limitation for bringing such suit, the suit as to such party is deemed commenced at the time of the amendment and as to him it is barred by the Statute of Limitations. But there is no court decision in Missouri holding that that rule applies to suits contesting wills. In this respect, will contests are sui generis, and as is evident from the reason of the case, all that is required by the statute is that an interested party shall within one year after the probate of the will, file a petition contesting the validity of the will, and the petition may be amended to bring in new parties defendant at any time after (as well as before) the expiration of said period of one year. All that the statutes of this State governing will contests require is that the petition contesting the will shall be filed within the said period of time. Secs. 525, 527, R. S. 1919; Johnson v. Brewn (Mo.), 210 S.W. 56; 40 Cyc. 1258; Bradford v. Andrews, 20 Ohio St. 208; Floyd v. Floyd, 90 Ind. 130.

T. L. Montgomery, H. S. Rouse, Llewellyn & Brown and M. L. Clay, Guardian ad litem, for respondents.

(1) The petition filed November 4, 1925, to contest the will of Louis Coleman, omitted to name or make his granddaughter, Marjorie Louise Athey, a party thereto, although her grandfather had bequeathed to her what, in the circumstances in the 3d clause of his will, was a substantial legacy of $ 25. She was a devisee. Should have been made a party as the law requires. The petition did not state a cause of action. The suit was not properly brought. It did not vacate the probate of the will it purported to contest. R. S. 1919, sec. 525; Wells v. Wells, 144 Mo. 198; Stowe v. Stove, 140 Mo. 594; Sims v. Field, 24 Mo.App. 557; Rush v. Rush, 19 Mo. 441; Eddie v. Park, 31 Mo. 513; Neenan v. St. Joseph, 126 Mo. 89; State ex rel. v. McQuillin, 246 Mo. 690; Jourden v. Meier, 31 Mo. 40. (a) Owing to the peculiar statutory provisions in such cases provided, no valid judgment could be rendered on the petition, and if rendered would be void and of no effect, and this question could be raised for the first time in the appellate court. Wells v. Wells, 144 Mo. 198. (2) The suit to contest a will under the statute is a proceeding in rem the will is the res, and all persons interested whether as contestants or proponents are entitled to have the formal and conclusive judgment of the court either rejecting or confirming the will. Cash v. Lust, 142 Mo. 637; Benoist v. Murrian, 48 Mo. 48; McMahon v. McMahon, 100 Mo. 97; Bradford v. Blossom, 207 Mo. 228; Harris v. Hays, 53 Mo. 90; State ex rel. v. Guinotte, 156 Mo. 522. (a) This was the commencement of a new or fresh cause of action, and the special statute of limitation of one year was a bar to the action as pleaded in the answer, and the judgment of the court was rightly entered thereon dismissing plaintiff's third amended petition. Sec. 1274, R. S. 1919, does not authorize the court to add by amendment the name of the only substantial plaintiff or defendant, as that would be in effect the substitution of an entirely new suit by way of an amendment which cannot be done. R. S. 1919, sec. 527; Russell v. Nelson, 295 S.W. 118; Courtney v. Sheehy, 38 Mo.App. 290; Pomeroys Remedies & Remedial Rights (2 Ed.) sec. 420, p. 464, and sec. 355 (citing Eddie v. Park's Exr., 31 Mo. 513); Wells v. Wells, 144 Mo. 198; Watson v. Boland, 136 Mo.App. 627; Hogan v. Hinchey, 195 Mo. 532; Sims v. Fields, 24 Mo.App. 557; Lilly v. Tobbein, 103 Mo. 491; Hiller v. Schulte, 184 Mo.App. 46; Eyerman v. Scollay, 16 Mo.App. 498; Bumbeck v. Devorss, 19 Mo.App. 38; Jaiks v. Sullivan, 128 Mo. 186. (3) If the original plaintiff has no cause of action, he cannot show one by adding new parties. The filing of a new petition therefore does not relate back to the beginning of the suit and prevent the bar of the Statute of Limitation. (4) The filing of the petition or amended petition is the institution of a new suit, and when a new party is made defendant the suit is brought by him or her at the date of the amendment. McCord v. McCord, 135 N.E. 548; Watson v. Gardner, 119 Ill. 312; Carlin v. Chicago, 262 Ill. 546; Mickey v. Northern Mill Co., 210 Ill. 115; Ward v. Yanell, 173 Ind. 535.

OPINION

Frank, J.

This action was brought by appellant, plaintiff below, on November 4, 1925, in the Circuit Court of Clark County, to contest the will of Louis Coleman, deceased. The original petition did not make Marjorie Louise Athey a party to the suit, although she was one of the legatees under the will. On December 7, 1925, the court sustained a demurrer to the petition and granted plaintiff leave to file an amended petition. Later, on May 5, 1925, plaintiff filed an amended petition in which Marjorie Louise Athey, a minor, by her next friend, was added as a party plaintiff. On June 22, 1926, a second amended petition was filed. On June 29, 1926, the court sustained a demurrer to the second amended petition, ordered that said Marjorie Louise Athey be made a party defendant, and granted plaintiff leave to file an amended petition. On July 2, 1926, a third amended petition was filed in which said Marjorie Louise Athey was added as a party defendant and was thereafter duly and personally served with process. On August 12, 1926, the venue of said cause was changed to the Circuit Court of Lewis County at Canton, Missouri. Thereafter on October 1, 1926, that court sustained defendant's motion for judgment on the pleadings, dismissed plaintiff's petition and rendered judgment sustaining said will, and plaintiff appealed.

The will devised to plaintiff, Violet L. Gresham, twenty-five dollars, to defendant Marjorie Louise Athey twenty-five dollars, and to defendant Anna Phillips the residue of testator's estate, real, personal and mixed.

Testator died on March 8, 1925. His will was admitted to probate on March 16, 1925. This suit was brought on November 4, 1925. The statute provides that suits to contest a will must be brought within one year from the date of the probate of the will. [Secs. 525, 527, R. S. 1919.] While this suit was brought within the statutory period, Marjorie Louise Athey, one of the legatees under the will, was not a party to the suit as originally brought, and more than one year from the date of the probate of the will had elapsed at the time she was made a party thereto by amendment of the petition.

Defendant contends that no valid judgment can be rendered in a suit to contest a will until all interested parties are in court and for that reason the filing of the original petition in this case which omitted to make one of the legatees under the will a party to the suit, wholly failed to state a cause of action, did not amount to the institution of a suit to contest the will, and was, therefore, not subject to amendment. Further contention is made that the filing of an amended petition bringing in Marjorie Louise Athey as a party defendant, after the statutory period of one year had run, was the institution of a new suit and was barred by limitation, because not brought within the statutory period of one year from the date of the probate of the will.

It is true that a court has no authority to try a suit to contest a will and render a judgment therein unless all interested parties are before the court. [Wells v. Wells, 144 Mo. 198, 202, 45 S.W. 1095.] However, it does not follow that necessary parties to a suit to contest a will, may not be brought in by amendment of the petition after the statutory limit of time in which such suits may be instituted has run, where, as here, the suit was brought within the statutory period of limitation.

In suits where several judgments may be rendered the general rule is that amendments to a petition relate back to the date of the filing of the original petition unless the Statute of Limitations is involved, in which case the action, as to the new parties, is regarded as commenced from the date of the amendment. But this rule should not be applied to a case where, as here, no judgment could be rendered until all interested parties are before the court. The issue in this character of a suit is will or no will. The will must either stand or fall as a whole. If the right to contest the will is barred as to one of the parties, it is barred as to all. A several judgment could not be rendered. Plaintiff, the only interested party desiring to contest the will, in good faith, brought her suit to contest within the statutory period. It would be laying down a harsh rule to hold that her action was barred by limitation because she inadvertently overlooked making one of the persons interested a party to the suit within the statutory period. The law favors the...