Kinsella v. Landa

• Decision Date: 19 August 1971
• Citation: 600 S.W.2d 104
• Parties: Mrs. John KINSELLA, (Plaintiff) Appellant, and Monsignor John T. Gulczynski, Pastor of St. Thomas Acquinas Catholic Church,(Plaintiff-Intervenor) (Cross-Claim Defendant) Respondent, v. Frank S. LANDA, as Executor Under a Purported Last Will and Testament Dated
• Court: Missouri Court of Appeals

Page 104

600 S.W.2d 104

11 A.L.R.4th 898

Mrs. John KINSELLA, (Plaintiff) Appellant,

and

Monsignor John T. Gulczynski, Pastor of St. Thomas Acquinas

Catholic Church,(Plaintiff-Intervenor)

(Cross-Claim Defendant) Respondent, v. Frank S. LANDA, as Executor Under a Purported Last Will and Testament Dated August 19, 1971, of Lillian B.

Gleason, also known as Elizabeth L. Kottenhoefer

and

Frank S. Landa, (Defendant) Respondent.

No. 41336.

Missouri Court of Appeals, Eastern District, Division Two.

April 15, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 19, 1980.

Application to Transfer Denied July 15, 1980.

Husch, Eppenberger, Donohue, Elson & Cornfeld, John H. Percy, St. Louis, for appellant.

William A. Ens, St. Louis, for respondent.

GUNN, Presiding Judge.

Appellant was ordered dismissed as a party plaintiff in a will contest in the circuit court of the City of St. Louis on the ground that she lacked the requisite statutory interest in the probate of the will. She has appealed. The core issue for our determination is whether the right to contest a will is descendible.

The record discloses that in April, 1974, Lillian L. Kottenhoefer (hereinafter "Testatrix") died unmarried and without living descendants. Her closest surviving collateral relative was Frank Kottenhoefer, Jr., a nephew. On May 13, 1974, a writing dated August 19, 1971 was admitted to probate by the probate court of the City of St. Louis as the last will and testament of the Testatrix. That instrument left all Testatrix' property to defendant/respondent Landa, her mailman, who ultimately became proponent of the will (Proponent). On July 24, 1974, Frank Kottenhoefer, Jr., Testatrix' then sole heir-at-law, and his daughter, plaintiff/appellant Kinsella (Contestant) filed their joint petition to contest the August 19 will. Only ten days later, on August 3, Frank Kottenhoefer, Jr. died intestate, leaving Contestant as Testatrix' closest surviving kin. On October 23, 1974, within the six month statutory period dating from the probate of the Landa will, Contestant, as sole plaintiff, filed her amended petition to contest that will.

Following the death of Contestant's father, a will dated April 13, 1970, which purported to leave all Testatrix' property to a certain church in Dallas, Texas, was presented to the probate court and subsequently, on November 7, 1970, was rejected.

Thereafter, on November 27, 1974 the church (Intervenor) intervened in the Landa will contest, seeking to establish the church will as Testatrix' last will and testament. Contestant challenged the church Intervenor will by cross-claim. There then ensued a pre-trial skirmish in which a volley of motions was discharged by the respective parties against opposing positions. When the procedural smoke had cleared, Contestant's first amended petition challenging the Landa will had been dismissed on the basis she lacked the statutory interest under the will at the time of its probate to bring a contest (her father, the deceased contestant, being the only party then so interested in the eyes of the law). Simultaneously, her cross-claim challenging the Intervenor church will was allowed, inasmuch as she did in fact possess the necessary interest at the time that will was rejected, an event that followed the death of her father. Subsequent events proved this latter ruling a hollow victory. On Proponent's motion, Contestant was precluded from participating at trial as to the Landa will. Contestant then made an offer of proof based on information obtained at discovery suggesting, inter alia, that Testatrix had been incompetent at the time the will was executed. Intervenor presented no evidence regarding either will, and the trial consisted only of testimony as to the execution of the Landa will even though the original contest petition raised the issue of Testatrix' competency. At the close of his evidence, Proponent Landa was granted a directed verdict as to his will, thereby foreclosing further proceedings as to the earlier church will. Contestant's motion for new trial was denied on the basis she was without the "legal status" to file it, although the court's order in this regard included a caveat to the effect that, should its denial of the new trial motion for lack of standing be reversed on appeal, the court intended to grant the motion on the specific ground that the proponent failed to carry his burden of proof by an affirmative showing as to Testatrix' competency at the time she executed the challenged will. ¹

From the orders dismissing her first amended petition and denying her the right to participate in the trial, and granting Proponent a directed verdict, Contestant appeals. For the reasons which follow, we reverse and remand for further proceedings.

Missouri's will contest statute, § 473.083.1 RSMo 1978, provides that the admission to probate or rejection of a will is binding "(u)nless any person interested in the probate of a will appears within six months after the date of probate or rejection thereof," or of the granting of letters, and files a petition challenging the probate or rejection.

Proponent successfully argued below, and so argues now, that Contestant is not a "person interested" in the probate of the Landa will under the cases construing this statutory language. The right to bring a will contest being "entirely dependent upon the statute," Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935 (banc 1940), an interest in the probate of a will is unquestionably a prerequisite to the bringing of a contest of that will. It is also clear that "interest" means a direct, pecuniary benefit resulting from the will's probate or rejection. Campbell, 139 S.W.2d at 937. Contestant's father, as Testatrix' sole heir-at-law, admittedly possessed such an interest. Further, Contestant succeeded to whatever interest her father possessed in Testatrix' estate upon his intestate death. However, Proponent argues that no right to bring or pursue a contest of the Landa will ever accrued in Contestant's favor because the critical interest in probate must exist at the time of the probate, citing Campbell and the cases discussed therein.

Although nothing explicit or implicit in the language of § 473.083.1 or its predecessors requires such a reading, the early Missouri cases construing the statute, relying on extrajurisdictional authorities, held that the interest required of a will contestant must exist at the time of probate. Teckenbrock v. McLaughlin, 246 Mo. 711, 152 S.W. 38 (1912). Subsequent cases expanded on this position and held that even where the right to contest properly accrues in favor of one who possessed the requisite interest at the time of probate, such right is personal to the contestant, not a property right, and is neither assignable or descendible. Braeuel v. Reuther, 270 Mo. 603, 193 S.W. 283 (1917); Campbell v. St. Louis Union Trust Co. Proponent would apply these principles to Contestant, barring her participation in the proceedings below either in her own right (because her "direct, pecuniary interest" in the probate of the Landa will arose after probate and upon her father's untimely death), or by pursuing her father's right of contest (as that right, being personal, ceased to exist upon his death).

Contestant concedes that the right to bring a will contest was neither assignable nor descendible under § 473.083 prior to 1973. However, Contestant's principal contention on appeal is that Missouri's legislature changed this rule when it amended § 473.083 in 1973 by adding subsection 6 (now numbered subsection 7). Thus, Frank Kottenhoefer, Jr.'s right to contest the Landa will descended to Contestant upon his intestate death.

Prior to 1973, the right of contest to a will was non-assignable and non-descendible. The rationale supporting this rubric was that a properly instituted contest could not be voluntarily dismissed by the parties. Hence, it did not abate upon the death of a contestant and no revival and substitution by the deceased contestant's representative or descendants was necessary to protect the decedent's interest:

A proceeding to contest a will, however, is possessed of peculiar features. After a will has been probated, an action questioning its validity casts upon those who claim under it the burden of proving it. Although the contestants who have brought the action may introduce no evidence, and may even abandon the contest, the burden of proving the will still devolves upon those who would maintain it. . . . (I)t follows that the question as to the survival or continuance of actions of this character in the event of the death of parties thereto is eliminated from the equation. Upon the action being brought, the parties thereto become of minor importance; the prime purpose of the proceeding being to determine whether there is a will or not.

. . . (T)he question naturally arises as to who will represent the interests of such contestants in the event of their death pending a proceeding as in the case at bar. . . . (S)uch representation is not necessary. The purpose of the proceeding is to determine whether or not there is a will. The contestants under our law are mere instruments in effecting this purpose, and the suit, having been brought by them, cannot be dismissed, but must be finally determined, although the contestants acted voluntarily in the first instance in bringing the action. Having so acted, their powers cease, except to see that the proponents establish the will. Whether, however, they see to this or not is a matter of indifference, because, the action having been begun, the duty devolves upon the trial court to see that it is finally determined . . . . Braeuel v. Reuther, 193 S.W. at 284-286. ²

By the addition of current subsection 7 to § 473.083, the legislature gave the parties to a will contest the power to dismiss it prior to final determination of the issue devisavit vel non. ³ The...