McCarthy v. Bank & Trust Co.

• Decision Date: 03 July 1930
• Docket Number: No. 28936.,28936.
• Citation: 30 S.W.2d 19
• Court: Missouri Supreme Court
• Parties: DALE McCARTHY, Appellant, v. FIDELITY NATIONAL BANK & TRUST COMPANY, R.E. KANE and MARGARET HUME.

30 S.W.2d 19

DALE McCARTHY, Appellant, v. FIDELITY NATIONAL BANK & TRUST COMPANY, R.E. KANE and MARGARET HUME.

No. 28936.

Supreme Court of Missouri. Division Two.

July 3, 1930.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

AFFIRMED.

Johnson, Lucas, Landon & Graves for appellant.

(1) The amended petition asks that the whole will and the codicils thereto be declared not the will of the testator. (2) Where undue influence and/or fraud has been exercised by one legatee of a will over the mind of the testator in the procurement of his legacy, then that legacy so obtained may be set aside and the other legacies not affected by the undue influence and/or fraud may stand, by the great weight of authority in this country. 1 Jarman on Wills (6 Ed.) 49; 1 Redfield on Wills (4 Ed.) par. 20, p. 519; 1 Woerner's The American Law of Administration (3 Ed.) par. 34, pp. 67, 68; 1 Page on Wills (2 Ed., 1916) par. 195, pp. 342, 343, and cases there cited; Trimlestown v. D'Alton, 1 Dow & Clark, 85; Petition of McGuire, In re McCaffrey's Will (1918), 173 N.Y. Supp. 392, and cases there cited; Old Colony Trust Company v. Bailey (1909), 202 Mass. 283; Harrison's Appeal (1880), 48 Conn. 202; Florey's exrs. v. Florey (1854), 24 Ala. 241. (3) Sec. 525, R.S. 1919, does not require an attack upon the entire will. Authorities supra; Cox v. Cox, 101 Mo. 168.

Leahy, Saunders & Walther and Harding, Murphy & Tucker for respondent Kane; Bowersock, Fizzell & Rhodes for respondent Fidelity National Bank & Trust Company.

(1) The amended petition does not seek to have the whole will and the codicils thereto declared not to be the will of the testatrix, but attacks the single legacy to the respondent R.E. Kane. (a) The fact that the prayer asks that the instrument be declared not the will of the testatrix cannot change nor enlarge the cause of action stated in the petition. The prayer of a petition is not part of the petition in consideration thereof upon general demurrer. Knight v. Railway, 120 Mo. App. 311; State ex rel. v. Railway, 240 Mo. 35; State v. Barnett, 245 Mo. 99; State v. McElhinney, 216 S.W. 521. (b) If the so-called amended petition is intended to be one contesting the whole will, then it is insufficient, because it does not state facts sufficient to constitute such a cause of action, and the sustaining of the demurrers to the petition was, therefore, proper. The failure to allege in the amended petition, that a petition stating a cause of action, under the statute relating to will contests, had been filed within one year from the date of the probate of the will, renders the petition fatally defective. It has long been the rule in this State that in statutory actions "the party suing must bring himself strictly within the statutory requirements necessary to confer the right of action and this must appear in his petition; otherwise, it shows no cause of action." State ex rel. v. McQuillin, 246 Mo. 694; Grunder v. Frank, 267 Mo. 713; Ewart v. Dalby, 319 Mo. 108, 5 S.W. (2d) 428; Woerner's American Law of Administration (3 Ed.) sec. 217, p. 718, note; 22 Ency. Pl. & Pr. 1220; 1 Page on Wills, 904; 40 Cyc. 1271; Wheeler v. Wheeler, 134 Ill. 522; Potts v. Felton, 70 Ind. 166; State ex rel. v. Superior Court, 76 Wash. 27, 135 Pac. 494; Lewark v. Dodd, 123 N.E. 260; McVeigh v. Felterman, 116 N.E. 519; McCord v. McCord, 135 N.E. 548. (c) The petition does not set out who are beneficiaries under the will. So there is absent from the petition those essential allegations from which the court could determine whether all interested persons have been made parties to the action. Neither is there any allegation in the petition showing that plaintiff has a pecuniary interest. The allegation that the testatrix died leaving as her only heirs at law the defendant Margaret Hume and the plaintiff, is not a sufficient allegation of plaintiff's interest. Ewart v. Dalby, 319 Mo. 108, 5 S.W. (2d) 428; Gruender v. Frank, 267 Mo. 713; Schmidt v. Bemersbach, 64 Ind. 53. It is not only necessary to allege in the petition who the beneficiaries under the will are, and what their interests under the will are, but it is also essential that all of the devisees and legatees under the will should be made parties defendant. Clark v. Crandall, 5 S.W. (2d) 388; 22 Ency. Pl. & Pr. 1220; Borland, Wills & Admr. (Enlarged Ed.) 209; Pomeroy's Code Remedies, sec. 178, p. 292; Eddie v. Parke's Executor, 31 Mo. 513; Wells v. Wells, 144 Mo. 198; Watson v. Alderson, 146 Mo. 349; Parke v. Smith, 211 S.W. 62; Spurr v. Spurr, 226 S.W. 35; Bruner v. Terrey, 114 N.Y. App. Div. 838, 125 N.Y. Supp. 915; 28 R.C.L. Sec. 398, p. 391; 40 Cyc. 1269. (d) The effect of the contract pleaded in the fifth paragraph of the petition is to restrict the issues in the will contest and authorize an annulment of the will as to only the defendant Kane. Such an arrangement is not valid, at least so far as the pleadings and joining of the necessary parties in a will contest are concerned. Woerner's Amer. Law of Administration (3 Ed.) 722, sec. 217; Wells v. Wells, 144 Mo. 198; In re Frued, 73 Cal. 555; Croker v. Williamson, 208 N.Y. 480, 102 N.E. 588; Rice's Will, 150 Wis. 401, 136 N.W. 956. (e) The purpose of the pleader, by the allegations of the sixth paragraph of the petition, is evidently to show that, through an assignment by the beneficiaries of the trust created by paragraph 17 of the will to the plaintiff of their interests under the will, their right to contest the will or to ask to have it probated in solemn form has been assigned to plaintiff and that, therefore, such beneficiaries are not to be required to be made parties. The right of action to contest a will is not assignable. Braeuel v. Reuther, 270 Mo. 607; Storrs v. St. Luke's Hospital, 180 Ill. 368; 28 R.C.L. 389, sec. 394. (2) The petition in this case is an attack upon a single legacy of the will and not a proceeding contesting the whole will. A suit to set aside a single legacy, or only a portion of a will, is not permissible under the statute of Missouri relating to will contests. (a) Will contests are purely statutory. State ex rel. v. McQuillin, 246 Mo. 689; Hans v. Holler, 165 Mo. 47; Braeuel v. Reuther, 270 Mo. 605. (b) Sec. 525, R.S. 1919, provides that in a will contest, "an issue shall be made up whether the writing produced be the will of the testator or not." Where such a statute is in force, the question in a will contest is "Will or no Will." The will must either stand in whole or fall in whole. 28 R.C.L. 393, 394, 403, 404; 16 Ency. Pl. & Pr. 1032-1033; 40 Cyc. 1323; Woerner's Am. Law of Administration (3 Ed.) 721; 1 Page on Wills, sec. 565. Snyder v. Steele, 304 Ill. 387, 136 N.E. 649; Fraser v. Jamison, 106 U.S. 191, 193; State ex rel. v. McQuillin, 246 Mo. 690; Tingley v. Cogwill, 48 Mo. 295; Van Raalte v. Graft, 299 Mo. 513, 525; Harris v. Have, 53 Mo. 96; Jackson v. Hardin, 83 Mo. 187; Cox v. Cox, 101 Mo. 171; Lilly v. Tobbein, 103 Mo. 486; Carl v. Gabel, 120 Mo. 283; Gordon v. Burris, 141 Mo. 610; Rush v. Rush, 19 Mo. 442; Neenan v. St. Joseph, 126 Mo. 95; Wells v. Wells, 144 Mo. 201; Wood v. Carpenter, 166 Mo. 485; Hines v. Hines, 243 Mo. 496; Teckenbrock v. McLaughlin, 209 Mo. 533; Eddie v. Parke's Exec., 31 Mo. 513; Johnson v. Brown, 277 Mo. 392; State ex rel. v. Guinotte, 156 Mo. 513; Ewart v. Dalby, 319 Mo. 108, 5 S.W. (2d) 428.

BLAIR, P.J.

Action in the Circuit Court of Jackson County to contest the will of Mary Ann Grier. Two of the respondents filed and the trial court sustained separate demurrers to the amended petition on the ground that it failed to state a cause of action and because of the failure to join necessary parties. Appellant refused to plead further, stood on his amended petition and suffered adverse judgment, from which he was granted an appeal to this court.

From the allegations of the amended petition, it appears that testatrix died in September, 1925, leaving appellant and respondent Margaret Hume as her heirs at law. On October 1, 1925, an instrument, purporting to be the will of Mary Ann Grier, was admitted to probate by the Probate Court of Jackson County. By the terms of such purported will, appellant was bequeathed the sum of one dollar and respondent Kane was bequeathed the sum of $75,000, which bequest was subsequently reduced by codicil to $50,000. It was then alleged:

"5th. That plaintiff believing that all the bequests in said instrument, except those made to the defendant R.E. Kane, and this plaintiff, expressed the true will of deceased, and not desiring to interfere with them, on the 7th day of July, 1926, by a deed duly executed and acknowledged and which has since been recorded in the office of the Recorder of Deeds of Jackson County, Missouri, at Kansas City, conveyed and released all his interest present or future as one of the heirs at law of said deceased in her estate (except in the said sum of fifty thousand dollars apparently bequeathed to the said R.E. Kane) to all of said legatees, except the said Kane, in the same proportions and for the same purposes as named in said purported or pretended will, and for that reason none of them is made a party hereto, as their interests cannot be affected by the result of this suit, and they are no longer interested in the probate of said purported will as provided by Section 525 of the Revised Statutes of Missouri 1919.

"6th. That on the 17th day of July, 1926, the beneficiaries of the trust estate described in paragraph 17 of said purported will, by a deed duly executed, acknowledged and which has since been recorded in the office of the Recorder of Deeds of Jackson County, Missouri, at Kansas City in consideration of the conveyance and release aforesaid made to them, released and quit-claimed to this plaintiff any interest they or any of them might have in any addition to the said residuary estate, referred to in said paragraph 17, caused by the rejection of the probate of said instrument as...