Lilly v. Tobbein

• Decision Date: 30 June 1890
• Parties: LILLY et al. v. TOBBEIN et al.
• Court: Missouri Supreme Court

13 S.W. 1060

LILLY et al. v. TOBBEIN et al.

Supreme Court of Missouri.

June 30, 1890.

WILL — CONTEST — PARTIES — AMENDMENT.

1. An action by the trustees, on behalf of the members of a voluntary religious association, to establish a will making it a devise, is not barred by the reversal of a judgment establishing the same will at the suit of the church as a corporation organized after the rejection of the will by the probate court, the reversal having been because the corporation was held not to be a proper proponent.

2. In a suit to establish a will making a devise to a voluntary religious association, afterwards incorporated, brought by the church as a corporation, the trustees, for and in behalf of the members, may be substituted as plaintiffs by amendment, under Rev. St. Mo. 1879, § 3567, authorizing the adding or striking out the name of any party, or the correction of a mistake in the name of a party.

3. Such an amendment, made after five years from the rejection of the will, in an action brought within that time, relates back to the commencement of the action, and avoids the bar contained in Rev. St. Mo. 1879, § 3980, limiting actions to establish or contest a will to five years after the probate or rejection thereof.

4. In a suit to establish a will, the issue to be tried is, will or no will, and the validity of the devise will not be considered.

5. The trustees of a voluntary religious association may, for and in behalf of all the members, sue to establish a will making it a devise.

6. In a suit by some members of a voluntary association for and in behalf of all, it is not material that some of the named plaintiffs have died, or ceased to be members, or are minors or married women; and they may be disregarded, as unnecessary parties.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

This was an action under Rev. St. Mo. 1879, § 3980, to establish a will rejected by the probate court.

Karnes, Holmes & Krauthoff, for appellants. Alexander Graves and Mansur & McLaughlin, for respondents.

BLACK, J.

Ilett Tobbein died on the 25th September, 1879, leaving a wife, but no children. By an instrument purporting to be his last will, he devised to his wife, Catherine, for her natural life, all of his property, real and personal, and at her death the one-half to go to her heirs, and the other half to the Catholic church at the city of Lexington, in the state of Missouri. It is then made the duty of the nominated executor, William A. Donaldson, at the death of Catherine, to sell all of the property, real and personal, at public sale, and pay the proceeds over to her heirs and to the church. The will was presented to the probate court, and by it rejected, on the 26th December, 1879. The estate was then ordered into the hands of the public administrator. The nominated executor died before the testator. The church, as an incorporated society, brought suit to establish the will, which resulted in a judgment establishing it. That judgment was reversed without remanding the cause. 82 Mo. 418. Thereafter the present suit was instituted in the Caldwell circuit court for the purpose of establishing the same instrument. The venue of the cause was changed to Jackson county, where a trial resulted in a judgment in favor of the will, to reverse which the defendants prosecute this appeal.

This suit was commenced in the name of the "Immaculate Conception, the Catholic Church at the city of Lexington, in the state of Missouri," as plaintiff. It is alleged in the petition that the plaintiff is and has been an incorporated society since 1863. The defendants filed a demurrer to this petition, which was sustained. There are several grounds set out in the demurrer, but we understand it to have been sustained on the motion that the church as an incorporated body could not maintain the action. Thereupon an amended petition was filed, in which the plaintiffs are designated the "Immaculate Conception, the Catholic Church at Lexington, an unincorporated religious association, John J. Lilly, Michael Howell, Patrick O'Malley, and Thomas Clark, members of and trustees for the association." These persons profess to sue for themselves and all other members. The amended petition goes on to name as plaintiffs 100 or more members of the church as additional plaintiffs. The defendant's demurrer to this amended petition was sustained as to the unincorporated association, but overruled as to the other plaintiffs, and the cause proceeded in the names of the individuals as plaintiffs. The will is in due form, and properly attested; and it was admitted on the trial that the testator was of sound and disposing mind. The widow, it may be added, renounced the will, and made her election under the law.

1. A point made in the trial court, and urged here, is that the judgment in the former suit is conclusive; that the present plaintiffs cannot again bring forward the instrument for the purpose of having it established as the will of Tobbein. It was a conceded fact in the former case that the church was not incorporated until after the death of the testator, and the conclusion seems to have been reached that the corporation had no such an interest in the probate of the will as would give it a standing in court as proponent. The judgment was therefore simply one of reversal. The final judgment, in a proceeding brought in the circuit court to establish a will, must be either one that the paper is or is not the will of the testator. This court gave no such judgment. There was no judgment whatever on the issue of will or no will. The judgment of reversal simply said the then plaintiff had no right to prosecute the suit. It left no impediment in the way of a new suit by any other person having the requisite interest.

2. The proof on the trial of the present case shows that the church was not incorporated until after the death of the testator. At the time of his death the church organization was simply a voluntary association for religious purposes, and was not a legal entity. The validity of the devise is therefore placed upon the ground that it is a devise to charitable uses. There is no doubt but a devise or bequest to an unincorporated association will be upheld and enforced, if it be a charity. 2 Perry, Trusts, (3d Ed.) § 730. See, also, Schmidt v. Hess, 60 Mo. 591. But the defendants insist that the devise in this case is not one for a public charity, and for that reason must fail. The inquiry therefore arises at once, can the validity of the devise or bequest be considered in this suit? Under our statute the will is first presented to the probate court, and the proceeding in that court is ex parte. The statute provides that if any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and by petition to the circuit court contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made upon whether the writing produced be the will of the testator or not. From these provisions of the statute, it is plain to be seen that the only issue to be tried is, will or not will. If a clause has been inserted by fraud or forgery, so that in point of fact it is no part of the will, then it may be rejected. But where the clause is found to be a part of the will the whole must be probated, and this, too, though the particular clause cannot be enforced. The court, in trying the issue of will or no will, is not called upon to construe its provisions, nor to say which are legal or which illegal. This question was fully considered in the recent case of Cox v. Cox, ante, 1055, (not yet officially reported.) As there said, if the will be properly executed and proved, it must be admitted to probate, although it contain not a single provision capable of execution, or valid under the law. It follows from what has been said that the questions made in the briefs as to whether the bequest to the church is a charity or not, and as to whether it must fail by reason of the...