Kinnerk v. Smith

• Decision Date: 28 July 1931
• Citation: 41 S.W.2d 381,328 Mo. 513
• Parties: William A. Kinnerk, Executor of Estate of Arrena R. Pierron, Appellant, v. Laura Reed Smith et al
• Court: Missouri Supreme Court

41 S.W.2d 381

328 Mo. 513

William A. Kinnerk, Executor of Estate of Arrena R. Pierron, Appellant, v. Laura Reed Smith et al

Supreme Court of Missouri

July 28, 1931

Appeal from Circuit Court of City of St. Louis; Hon. George E Mix, Judge.

Reversed and remanded.

James F. Conran for appellant.

(1) This plaintiff was, at the institution of this suit, and has been at all times thereafter, the duly qualified and authorized executor of the estate of Arrena R. Pierron. Plaintiff was the duly appointed executor of the estate, and his powers were stayed during the pendency of the contest of her will; at the termination of that contest plaintiff became ipso facto reinstated as executor of said estate. Sec. 14, R. S. 1929; Sec. 43, R. S. 1929; State ex rel Barlow v. Holtkamp, 14 S.W.2d 646; State ex rel Ashton v. Imel, 243 Mo. 180; Leahy v. Campbell, 274 Mo. 343; Johnson v. Brown, 277 Mo. 392; Leahy v. Trust Co., 292 Mo. 561. (2) The action of the judge of the probate court in requiring a new application and for reinstatement by plaintiff and his appointment as executor de bonis non in vacation was a nullity, and the action of the court thereafter in disapproving and rejecting the letters testamentary de bonis non, granted to plaintiff in vacation, and in vacating and setting aside said appointment, was a nullity. 25 C. J. 220, note 16; 16 Cyc. 23; State ex rel. Barlow v. Holtcamp, 14 S.W.2d 646. (3) The dictum in upholding the will of Arrena R. Pierron, reported in 319 Mo. 1072, made a suit to construe the will necessary. (4) An executor is a proper party to maintain a suit to construe a will. Rosenberg v. Frank, 58 Cal. 387; Williams v. Williams, 73 Cal. 99; Bank v. Harrison, 68 Ga. 63; Mersman v. Mersman, 136 Mo. 244; Hayden v. Marmaduke, 19 Mo. 403; Bredell v. Collier, 40 Mo. 287; Spurlock v. Burnett, 170 Mo. 372; Waters v. Herboth, 178 Mo. 166. The plaintiff in this suit, being ordered as executor to sell the real estate and being given the power in the will to distribute the proceeds, has such a vested interest as entitles him to maintain a suit to quiet title or construe the will.

N. Murry Edwards for respondents.

(1) The parts of appellant's abstract of the record objected to in respondents' written objections are not before this court for consideration on this appeal, because they are not set forth in the bill of exceptions or called for therein. Therefore, this court cannot consider the same on this appeal. Betzler and Clark v. James, 227 Mo. 387; State v. Cobb, 273 S.W. 738; Althoff v. Transit Co., 204 Mo. 166; Quail v. Lomas, 200 Mo. 674; Hendricks v. Calloway, 211 Mo. 536; State v. Gilmore, 110 Mo. 1; State ex rel. Dolman v. Dickey, 288 Mo. 92. (2) The record shows that appellant William A. Kinnerk, on May 22, 1928, before the institution of this suit, on his application, was appointed by the probate court in vacation as executor de bonis non of the estate of Arrena R. Pierron, deceased; that objections were filed by the heirs to this vacation appointment and that, after a hearing on the objections, the appellant was found to be an incompetent, unsuitable and improper person to act as administrator de bonis non, and was for that reason disqualified and his vacation appointment set aside and vacated and his application for letters testamentary de bonis non denied and another party appointed as such administrator de bonis non. As appellant was not in charge of this estate as a personal representative thereof at the time of the institution of this suit as such, the trial court did not err in dismissing this cause and holding that the appellant had no authority to institute and prosecute the suit as such representative of the estate. Morton v. Hatch, 54 Mo. 411; Chouteau, Executor, v. Burlando, 20 Mo. 489; Ewing v. Parrish, 148 Mo.App. 492; Goebel v. Forrest, 8 Mo.App. 443. (3) The order and judgment of the probate court refusing to appoint the appellant administrator de bonis non of the deceased's estate was final and conclusive and not appealable. Flick v. Schenk, 212 Mo. 275; In re Estate of Flick, 136 Mo.App. 164; Marshall v. Estate of Shoemaker, 164 Mo.App. 429. The order and judgment of the probate court appointing Zeppenfeld administrator de bonis non was final and conclusive and not appealable. State ex rel. Grover v. Fowler, 108 Mo. 465.

OPINION

Sturgis, C.

This is a suit to quiet title, as plaintiff claims, or to remove an alleged cloud from the title of certain real estate in the city of St. Louis, as defendants claim. The plaintiff sues as executor of the last will of Arrena R. Pierron, deceased, and the defendants are the heirs at law of such deceased. Defendants make this statement of the case, which we find to be correct:

"This is a suit by appellant and other parties against the respondents, who are all the heirs at law of Arrena R. Pierron, deceased, to remove an alleged cloud from the title of certain real estate owned by deceased at the time of her death by reason of the fact that the respondent heirs claim title to said real estate.

"This suit was filed on August 10, 1928, by William A. Kinnerk as executor of the last will and testament of Arrena R. Pierron, deceased, as one of the plaintiffs, and ten charitable associations named as co-plaintiffs. The petition in this case alleges, as the appellant Kinnerk's only right to institute and prosecute this action, that he is executor of the last will and testament of Arrena R. Pierron, deceased. The allegation as to the right of the ten charitable associations named as plaintiffs to institute and prosecute this suit is that the will of the deceased provided that all the rest and remainder of her estate should be given by the executor to such charitable uses and purposes as he might determine. It is alleged that Kinnerk had elected to determine to give the residue of the estate to the ten charities named with him as co-plaintiffs.

"Separate motions to dismiss were filed by the respondents, who were defendants in the lower court, as to each of the ten plaintiff charities, on the ground that Kinnerk had no authority to institute and prosecute this suit in their names as plaintiffs. Some of the charities appeared in court and filed written requests to dismiss the case as to them, stating that Kinnerk had received no authority from them to institute and prosecute the suit.

"Respondents also filed a motion to dismiss this cause as to plaintiff William A. Kinnerk, executor of the last will and testament of Arrena R. Pierron, for the reason, as stated in their motion, that Kinnerk 'is not the executor of the last will and testament of Arrena R. Pierron, deceased, and that said William A. Kinnerk has no power or authority to institute or prosecute this action as executor of the last will and testament of Arrena R. Pierron, deceased.'

"All of the motions to dismiss were set down and called for hearing by the trial court on November 7, 1928."

Leaving out certain quotations from the evidence, the statment proceeds:

"The trial court, after taking under submission all of respondents' motions to dismiss, on November 19, 1928, sustained all of such motions as to the ten charities, and also at the same time sustained the motion of the defendants to dismiss as to William A. Kinnerk as executor, upon the ground that he was not executor and had no power or authority to institute and prosecute this suit as executor of the said last will and testament.

"The plaintiff filed a motion for a new trial as executor of the last will and testament of Arrena R. Pierron, deceased. No motion for new trial was filed on behalf of the ten charities."

The assignments or grounds for new trial in plaintiff's motion for new trial amount to one assignment, to-wit, that under the pleadings, the law and the evidence, the trial court erred in dismissing this cause as to the plaintiff.

On December 7, 1928, the plaintiff's motion for new trial was by the court overruled, from which ruling the plaintiff prosecutes this appeal as the alleged executor of the last will and testament of Arrena R. Pierron, deceased. The other plaintiffs have not appealed.

It is thus seen that the whole case was disposed of in the trial court by a motion to dismiss on the ground that plaintiff brings suit as executor of the will of Arrena R. Pierron, the admitted common source of title to the land in question, and that plaintiff was not such executor and therefore had no legal capacity to sue. This is not the method of procedure prescribed by our code in that the question "that the plaintiff has not legal capacity to sue" is by Section 770, Revised Statutes 1929, made a ground of demurrer, and Section 774, Revised Statutes 1929, provides that if such defect "does not appear upon the face of the petition," which is the case here, then objection may be raised by answer, and if not so raised, will be deemed as waived. [Osmak v. American Car & Foundry Co., 328 Mo. 159, 40 S.W.2d 714.] The plaintiff, in turn, did not object to the method of procedure, and so that was waived also. The result, however, is that the record is incomplete and far from satisfactory, as we shall see -- the fault being that of both parties.

The motion to dismiss the case states as grounds therefor "that this cause be dismissed as to plaintiff William A Kinnerk, executor of the last will and testament of Arrena R. Pierron, deceased, for the reason that plaintiff William A. Kinnerk is not the executor of the last will and testament of Arrena R. Pierron, deceased, and that William A. Kinnerk has no power or authority to institute or prosecute this action as executor of said last will." As this motion did not prove itself, the defendants, as proponents of the motion, necessarily and in fact took on themselves the burden of proving...