Jackson's Will, In re, No. 7488

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: RUARK; The will of Andrew Jackson did not expressly exclude the husband of Irene from appointment. But the testator indicated some fear or suspicion that she would make trouble after the will was offered for probate and attempted to protect against t
• Citation: 291 S.W.2d 214
• Parties: In the Matter of the Trust Under the Last WILL and Testament of Andrew JACKSON, Deceased.
• Decision Date: 17 May 1956
• Docket Number: No. 7488

Page 214

291 S.W.2d 214 In the Matter of the Trust Under the Last WILL and Testament
of Andrew JACKSON, Deceased. No. 7488. Springfield Court of Appeals, Missouri. May 17, 1956.

Esco V. Kell, West Plains, for appellant.

H. D. Green, Green & Green, Robert E. Hogan, Hogan & Hogan, West Plains, for respondent.

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RUARK, Judge.

This is an appeal from an order overruling appellant's motion to vacate a previous order of the circuit court appointing a substitute testamentary trustee.

Does this court have jurisdiction? Appellant has challenged such both on the ground that title to real estate is involved and that the amount in dispute exceeds $7,500.

As to whether title to real estate is involved in the constitutional sense: It is not in dispute that under the will here involved the legal title goes to trustees to hold for the use and benefit of certain beneficiaries. For so long as proper under the will, the bare legal title will remain in those persons who are lawfully appointed by the court to administer the trust, whether they be the appellant, respondent or other persons. There is no dispute as to this. The essence of the question here is not as to the flow and lodging of the title, but as to whether a certain person shall be one of the cotrustees. Under our Supreme Court decisions the judgment sought or rendered must be such as will directly determine title in some manner or degree adversely to one of the litigants. It is not enough that the judgment, when carried into execution, will affect the title. The title itself must be the matter about which there is a contest. It must not only be in issue, but it must be directly in issue. The judgment must adjudicate a title controversy. ¹ Thus it is held that a suit to enjoin trustees in reference to the handling of real estate on the ground that they were not the properly elected trustees vested jurisdiction in the court of appeals, because 'since the only dispute is as to who are the trustees of the church, the plaintiffs or the intervenors, the title to the property of the church is not only not involved but will not be affected by any judgment responsive to the issues presented.' Clevenger v. McAfee, Mo.Sup., 165 S.W.2d 411; see State ex rel. and to use of Northside Church of God v. Church of God, Mo.Sup., 243 S.W.2d 308.

As to whether the amount in dispute exceeds $7,500: The pleadings and exhibits show (or contend) there is real and personal property in the estate to the extent of more than $40,000. But the test again is not the amount which may be affected, but the amount actually involved in the suit. This is not a suit for money award but one which concerns only the authority to handle (not to beneficially own) that amount. The Supreme Court is of limited appellate jurisdiction, and such jurisdiction must affirmatively appear in the record. The mere chance or speculation that the jurisdictional amount may exceed $7,500 is not enough. ² The test is the value in money of that which will be gained or lost by either of the parties as a result of the litigation. ³ In arriving at such value it is held that the amount actually involved in a suit to appoint or remove an executor is not the value of the estate, but the value of the commissions which will be received (or lost) by the occupant of that position. ⁴ In this case there is nothing in the pleadings or the record which claims or indicates with fair certainty that the fees or commissions involved will exceed $7500.

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For the foregoing reasons we retain jurisdiction.

Is the appeal too late? Respondent has moved to dismiss because of such contention. The motion to set aside the appointment was overruled on June 28, 1955. On July 8, 1955, appellant filed a motion for new trial, which motion was overruled on August 23, 1955, and notice of appeal was given seven days thereafter. Section 512.020 RSMo 1949, V.A.M.S., Laws of 1943, sec. 126, p. 353, provides for appeal from any order granting a new trial, from certain designated orders and interlocutory judgments which determine the rights of the parties, from any final judgment, or from any special order after final judgment in the cause. 42 V.A.M.S. Supreme Court Rule 3.24 provides that the filing of motion for new trial postpones the finality of judgment until ruled upon or ninety days have expired, but concludes with the sentence, 'When an appeal is taken from any order specified in Section 126, it shall be taken within ten days after such order is entered.' Respondent argues that the motion to vacate a judgment is a special order after final judgment; and as the Supreme Court by its rule gave postponement of finality as to judgments generally, so hath it taken it away as to orders after judgment. The question in a nutshell is whether or not the filing of a motion for new trial postponed the finality, as a judgment, of the order overruling the motion to vacate.

As a theoretical proposition we accord respondent's motion and suggestions in support thereof considerable respect. But we are drawn to the conclusion that the order overruling the motion to set aside the judgment is in itself a judgment which is intended to receive the grace of postponement of finality by motion for new trial under Rule 3.24.

In Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, the court, in a per curiam opinion, at loc. cit. 63 attempted to remove the uncertainty in regard to the effect of motions for new trial. It said, 200 S.W.2d loc. cit. 64:

'(T)here can be no doubt that a motion for a new trial is an authorized motion in any kind of case, and has the same effect to postpone the finality of the judgment in any case, because under the new code it performs not only all of its former functions as a motion for new trial but also those of all former record proper motions as well.' (Our emphasis.)

and again:

'Undoubtedly this was the purpose of the new code, and Rule 3.24 construing it, in order to avoid the confusing situation prevailing under the old procedure, which caused parties to lose rights of appeal because a motion for new trial had the effect to postpone the finality of the judgment in some types of cases while such a motion had no function or effect at all in others.'

In In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, loc. cit. 740, it is pointed out that a motion for new trial in a record proper case is simply a motion which permits the court to reconsider its decision. ⁵

It is true that a motion for new trial (although sometimes filed ⁶) is not necessary to preserve the error in an order overruling a motion to set aside a judgment for irregularity patent on the face of the record; ⁷ whereas it would appear that the motion for new trial is necessary to preserve the error on the overruling of a motion in the nature of writ of error coram nobis because such involves evidence

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dehors the record. ⁸ And it is true that rulings on motions to vacate for irregularity, both patent on the face of the record and in the nature of coram nobis, have sometimes been designated "special order after final judgment"; ⁹ yet a motion to vacate makes a direct attack upon the judgment and is an independent proceeding, instituted by motion instead of a petition. Such motion takes the place of a petition and becomes a pleading from which the issues are gauged. ¹⁰ Thus the proceeding assumes the dignity of a separate lawsuit, and denial of the motion constitutes a final judgment in itself. ¹¹ To this extent it is distinguishable from those after-judgment orders which are only adjunct to the case which has been determined or which seek to aid or impede the enforcement of a judgment rather than attack its very existence. ¹² Since the proceeding has become a 'case' and the motion for new trial is now an authorized motion in any kind of case we are of the opinion that the finality of the judgment was postponed and the appeal was in time. The motion to dismiss is overruled.

Andrew Jackson, of West Plains, Missouri, left a will wherein, after making certain specific bequests, he gave the remainder of his estate, both real and personal, to William Rudolph Luna and A. W. Landis as trustees (with full management powers), to pay the income unto William Rudolph Luna (his ex-son-in-law) and Irene Lummis (his adopted daughter), share and share alike, said payments to continue through the lives of the beneficiaries; upon death of the survivor the trust to terminate and the whole of the corpus to Charles and Mary Frances Jackson, a nephew and niece. The trustees were required to give bond and make annual settlement with the circuit court. In event the trustee Luna should die or disqualify, then trustee Landis would continue as sole trustee; but in event trustee Landis should die or disqualify, a trustee should be appointed by the circuit court. Landis and Luna were likewise named as executors. A codicil revoked a specific devise to the daughter, Irene. A later codicil provided for cancellation of benefits to said daughter in event she should contest the will. Said will and codicil were admitted to probate on March 4, 1952, and Landis and Luna qualified as executors and proceeded to administer the estate.

On May 1, 1953, Irene Lummis, one of the beneficiaries, filed in the circuit court her 'petition for appointment of successor trustee and to require trustee to give bond.' Such motion recited the fact that Landis had notified movant he was no longer acting as trustee, called attention to the requirement in respect to bond, and concluded with a prayer for the appointment of a successor to trustee Landis, and that the trustees be ordered to give bond and be removed in event of failure so to do. On May 14, 1953, trustee Luna filed answer to this motion wherein he alleged that Landis had not yet resigned but was still discharging the duties of trustee, and concluded with a statement that 'unless it is the desire of A. W. Landis, trustee...