Love v. White

• Citation: 154 S.W.2d 759,348 Mo. 640
• Decision Date: 25 October 1941
• Docket Number: 37736
• Parties: Kathryne Widaman Love v. J. M. White, Administrator with Will Annexed of the Estate of Annie E. Vaughn, Appellant
• Court: United States State Supreme Court of Missouri

154 S.W.2d 759

348 Mo. 640

Kathryne Widaman Love v. J. M. White, Administrator with Will Annexed of the Estate of Annie E. Vaughn, Appellant

No. 37736

Supreme Court of Missouri

October 25, 1941

Appeal from Montgomery Circuit Court; Hon. W. C. Hughes Judge.

Appeal dismissed.

Baker & Baker for appellants.

Appellant submits that the motion to dismiss the appeal should be overruled for the following reasons: First: Because the respondent raised this same question in the circuit court by motion to strike the affidavit and application for appeal from the files, which motion was by the court overruled. To which the respondent took no exceptions, and from which she did not file a cross-appeal. It is well settled law that where there is no cross-appeal and no exceptions preserved respondent cannot complain in this court of any action of the trial court. Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339; Smith v. Holdoway Const. Co., 344 Mo 862, 129 S.W.2d 894. Second: It was not only the administrator's right, but it was his duty to appeal, if he, in good faith, believed that the judgment of the lower court was wrong. In re Carlin Estate, 47 S.W.2d 213; Carlin v. Bacon, 322 Mo. 435, 16 S.W.2d 46. Third: A large part of the estate involved being personal property the title to such personal property, upon her death, passed to the administrator, and it was his duty to preserve the same and see that it passed to the proper parties. Sec. 94, R. S 1939; Eisiminger v. Stanton, 129 Mo.App. 403, 107 S.W. 460. Fourth: A suit in equity to enforce an oral agreement to adopt is maintainable against the administrator alone without the making of the persons, who otherwise would be the deceased's heirs, parties defendant. Columbus Bank & Trust Co. v. Jones, 168 S.E. 561, 176 Ga. 620. Fifth: The respondent having made the appellant a party to this suit, having had him summoned, requiring him to answer cannot now claim that the administrator is not a proper party for all purposes. The appellant, the administrator, being custodian of the personal property, and being charged with the duty of preserving and disbursing the same, had an appealable interest. Aetna Insurance Co. v. O'Malley, 118 S.W.2d 3, 342 Mo. 800. Sixth: The cases relied on by respondent, to-wit: Braeuel v. Reuther, 270 Mo. 603, 173 S.W. 282, and Shock v. Berry, 285 S.W. 122, are not in point. They are cases in which it is held that the executor named in a will has no right to appeal from an adverse decision of the lower court. A will contest is purely a statutory proceeding, and the statute sets out who should be made parties contestants and contestees.

George P. Adams for respondent.

Respondent's motion to dismiss appeal should be sustained. Appellant is not a "party to a suit aggrieved" within the statute relating to appeals from the circuit courts of this State. Sec. 1018, R. S. 1929; O'Connell v. Dockery, 102 S.W.2d 748; Shock v. Berry, 221 Mo.App. 718, 285 S.W. 122; Braeuel v. Reuther, 270 Mo. 603, 193 S.W. 283. The application for appeal was made by appellant in his individual capacity, and not as administrator. The decree and judgment of the circuit court is binding and conclusive because no party in interest has appealed.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

J. M. White, Administrator with will annexed appeals from a judgment of the Circuit Court of Montgomery County decreeing Kathryne Widaman Love to be the adopted daughter and heir of Annie E. Vaughn, deceased.

The respondent's petition alleged, and for the purpose of this opinion we may assume that the proof showed, that she was the adopted daughter of Annie E. Vaughn and her only heir at law; that she was not named or provided for in her will. She asked to be adjudged the adopted daughter and sole heir of the deceased and that upon final settlement she receive the entire estate which consists of both real and personal property.

Annie E. Vaughn's will devised one piece of land in Wellsville to her nephew, Charles Penn, and to her niece, Lula Penn, and another tract to the nearest relatives of her deceased husband. Specific bequests were made to the Wellsville Cemetery Association, the High Hill Cemetery Association, the Christian Church of Wellsville and the Christian Church of High Hill. The residuary legatee and devisees were her "nearest relatives."

The above-named people and organizations and fifty-six other persons as the remaining heirs at law and residuary legatees were made parties defendant to the suit and were served with process. After a trial and decree in favor of the respondent, Kathryne Widaman Love, J. M. White as administrator, the two cemetery associations and the two churches filed a motion for a new trial. Upon the overruling of the motion "J. M. White, Administrator" filed his application and affidavit for an appeal. The cause was transferred to this court by the St. Louis Court of Appeals for the reason that title to real estate is involved. [Love v. White, Adm., 150 S.W.2d 494.]

It will be observed from the foregoing that none of the parties defendant, except the administrator, have appealed.

The respondent has filed a motion to dismiss the appeal for the reason that the administrator is not a "party to a suit aggrieved" within the meaning of the statute (Sec. 1184, R. S. Mo. 1939; 2 Mo. Stat. Ann., p. 1286) relating to appeals. The appellant contends that the point was not properly preserved by a mere motion to strike the affidavit and application from the files and that, therefore, respondent has waived the objection. But, the right of one to appeal and whether or not an appellant is a party aggrieved within the meaning of the statute is a jurisdictional question and may be raised at any time, even by the court itself. [State ex rel. Fischer et al. v. Vories, 333 Mo. 197, 62 S.W.2d 457.]

Relying, for the most part, on Carlin v. Bacon, 322 Mo. 435, 16 S.W.2d 46, the appellant administrator claims he has the right to appeal. However, an examination of the record in that case reveals that all of the named defendants appealed and the right of the administrator to join with them was not questioned.

There can be no doubt but that an administrator or executor has the right to appeal from any judgment affecting him or his duties in such a manner that he is thereby a "party to the suit aggrieved." [Secs. 850, 1184, R. S. Mo. 1939, 2 Mo. Stat. Ann., pp. 906, 1286; 2 Am. Jur., sec. 183, p. 960; 3 C. J., sec. 507, pp. 644-647; 4 C. J. S., sec. 193, pp. 370-374.] On the other hand, an administrator, or anyone else, who does not have the right to control the litigation, or is not a necessary or proper party to the suit or who has no interest in the subject matter or who is not injured by the judgment or who, in short, is not "aggrieved" by the judgment does not have the right to appeal. [State ex rel. Fischer et al. v. Vories, supra; McClain v. Kansas City Bridge Co., 338 Mo. 7, 88 S.W.2d 1019.]

In this connection...