Gurniak v. Liszewski, 51912
| Decision Date | 09 January 1967 |
| Docket Number | No. 2,No. 51912,51912,2 |
| Citation | 411 S.W.2d 84 |
| Parties | Mary GURNIAK, formerly known as Mary Markowska (Roth) Devisee Under Joint Will of Mary Liszewski, deceased, and Walery Liszewski, Appellant, v. Walery LISZEWSKI, also known as Walter Liszewski, and Frank Liszewski, Respondents |
| Court | Missouri Supreme Court |
Muehlenkamp, Brazil & Murray, Robert E. Murray, Dellwood, for appellant.
Sale & Evans, David L. Campbell, St. Louis, for respondents.
STOCKARD, Commissioner.
The trial court dismissed plaintiff's petition on the ground that it had no jurisdiction of the subject matter, and plaintiff has appealed.
On April 12, 1957, Mary Liszewski and Walery Liszewski, husband and wife, executed a joint will which contained the following provision:
'Second: We Walery Liszewski and Mary Liszewski his wife do hereby agree by and between ourselves (sic) that is (sic) case that one of us shall depart from his or her life then this last will and testament shall remain unchanged as stated hereafter.'
Thereafter in the will there was a devise to plaintiff of real estate known as 1849 North Market Street, St. Louis, with the 'understanding' that she should pay designated sums of money to named children of Walery Liszewski by his previous marriage and to named children of Mary Liszewski by her previous marriage, said sums to 'be paid in cash * * * from property 1849 North Market Street.' Mary Liszewski died on April 5, 1959, and on November 21, 1960, Walery Liszewski executed and delivered to Frank Liszewski, his son, a quitclaim deed to real estate located at 1849 North Market Street, but reserving to himself a life estate.
By her petition plaintiff sought a declaratory judgment 'decreeing the joint Will * * * to have been irrevocable by Walery Liszewski * * * from and after the date of death of Mary Liszewski,' and she also sought a judgment setting aside the quitclaim deed to Frank Liszewski.
Each defendant filed a motion to dismiss the petition for failing to state a claim upon which relief could be granted, and each defendant also filed a motion to dismiss on the ground that 'the court lacks jurisdiction of the subject matter in that the Will under which plaintiff, as devisee, claims right and title has not been duly admitted to probate.' The latter motions were sustained, and the petition was dismissed with prejudice. No ruling was made on the motions to dismiss for failure of the petition to state a claim on the ground that by reason of the ruling on the other motions they had become moot.
The instrument was not offered for probate after the death of Mary Liszewski, and Walery Liszewski is still living. Therefore, the instrument has no standing as a will, and on the basis of constituting a will it is ineffectual for the purpose of proving title to or the right to possession of real estate. Section 473.087 RSMo 1959, V.A.M.S.; Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644, 134 A.L.R. 876. However, the second provision of the instrument, as above set out, purports to contain the terms of an agreement or contract between Mary and Walery Liszewski concerning the disposition of their porperty. ...
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... ... Dan B. Dobbs, Law of Remedies sec. 2.1(2) (2d ed.1993); 8 see Gurniak v. Liszewski, 411 S.W.2d 84, 86 (Mo.1967) (declaratory judgment remedy is sui generis and ... ...
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