McCrary v. Michael

• Decision Date: 05 October 1937
• Citation: 109 S.W.2d 50,233 Mo.App. 797
• Parties: ANN McCRARY, SALLIE EMERY, ALICE WARREN, EMMA HAMP, BETTIE BURKETT and WALTER M. FRIZZELL, RESPONDENT, v. ALBERT MICHAEL, EXECUTOR OF THE LAST WILL AND TESTAMENT OF WILLIS M. FRIZZELL, DECEASED, and MARIE McCORMICK (DEFENDANTS), MARIE McCORMICK, APPELLANT
• Court: Missouri Court of Appeals

109 S.W.2d 50

233 Mo.App. 797

ANN McCRARY, SALLIE EMERY, ALICE WARREN, EMMA HAMP, BETTIE BURKETT and WALTER M. FRIZZELL, RESPONDENT, v. ALBERT MICHAEL, EXECUTOR OF THE LAST WILL AND TESTAMENT OF WILLIS M. FRIZZELL, DECEASED, and MARIE McCORMICK (DEFENDANTS), MARIE McCORMICK, APPELLANT

Court of Appeals of Missouri, St. Louis

October 5, 1937

Appeal from Circuit Court of City of St. Louis.--Hon. Moses Hartmann, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Thompson Mitchell, Thompson & Young and Richard D. Shewmaker for appellant.

(1) It is the duty of the court to tax the costs against the losing parties, the plaintiffs in this case. R. S. Mo. 1929, sec 1242; Ex Parte Nelson, 253 Mo. 627, 162 S.W. 167; Calnane v. Calnane, 223 Mo.App. 381, 17 S.W.2d 566 l. c. 567; R. S. Mo. 1929, sec. 1254; Turner v. Johnson, 95 Mo. 431, 7 S.W. 570; Dunkeson v. Williams (Mo.), 242 S.W. 653, l. c. 657; Huggins v. Hill (Mo.), 236 S.W. 1054; Walton v. Yore, 58 Mo.App. 562; McFadin v. Catron, 138 Mo. 197, 38 S.W. 932. (2) The court had no jurisdiction to enter a judgment for costs against the estate because the estate was not before it. In re Soulard's Estate, 141 Mo. 642, 43 S.W. 617; R. S. Mo. 1929, sec. 1242. "At the common law no costs were recoverable. City of St. Louis v. Meintz, 107 Mo. 611, 18 S.W. 30. Costs in Missouri being, therefore, purely creatures of the statute, enactments in relation thereto must be strictly construed. State ex rel. v. Seibert, 130 Mo. l. c. 213, 32 S.W. 670; St. Louis etc., Ry. Co. v. Cape Girardeau, etc., Ry. Co., 126 Mo.App. 272, 102 S.W. 1042; Lucas v. Brown, 127 Mo.App. 645, 106 S.W. 1089."

Foristel, Mudd, Blair & Habenicht for respondent.

No brief.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

Willis M. Frizzell, a resident of the City of St. Louis, died September 18, 1933, leaving the plaintiffs, consisting of five sisters and one brother, as his only heirs at law, and, on October 8, 1933, a paper, purporting to be his last will and testament was admitted to probate in the probate court of the city of St. Louis.

By the terms of the will, all the residue of his property, after the payment of debts, and funeral expenses, was given to his niece, Marie McCormick, and, in case she should predecease him, such residue should go to his sister, Ann McCrary. The will named as executor, Henry W. Neuwoehner, and in the event of his death, Albert Michael.

Subsequent to the action of the Probate Court in admitting the will to probate, plaintiffs filed their suit in the Circuit Court of the City of St. Louis as contestants, seeking to have said written instrument adjudicated as not the will of said decedent.

The defendants and proponents are Albert Michael, the substitute executor, and Marie McCormick, the sole beneficiary.

Upon a trial to a jury in the circuit court its verdict was in favor of the proponents and the will was duly established as the last will and testament of the decedent.

The trial court in entering up its judgment establishing the will, provided therein "that the costs of this suit proceed to be paid out of the assets and effects of the estate of Willis M. Frizzell, deceased, now in the hands of Henry W. Neuwoehner, as executor."

The total costs amounted to $ 114.30, $ 67.85 of which were for depositions taken on behalf of the contestants.

The proponents in due time filed their motion asking the court to modify its judgment and tax the costs against plaintiffs, the unsuccessful contestants, which motion being overruled, Marie McCormick duly perfected her appeal to this court.

The sole question therefore, involved in this appeal, is whether the costs should have been adjudged against the losing contestants or against the estate of the testator.

After a careful review of the authorities and the statutes in respect to costs and a consideration of the nature of a will contest in the circuit court, we have reached the conclusion that the learned trial judge was in error in refusing to adjudge the costs against plaintiffs, the unsuccessful contestants.

Costs in this State are creatures of statutes. [Ex parte Nelson, 253 Mo. 627, 162 S.W. 167.]

In McFadin v. Catron, which appeared twice in the Supreme Court, viz., 120 Mo. 252, and 138 Mo. 197, 38 S.W. 932, the costs were adjudged against the losing contestant.

Section 1242, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 1242, p. 1468) reads as follows:

"In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law."

There is no special statutory provision relating to costs in will contests. So that it would logically follow, in the absence of a statute making a different provision for the taxation of costs in will contests, that the costs should be taxed against the unsuccessful parties, the contestants in the instant case.

A will contest is a proceeding sui generis. It is a suit in rem. The sole question to be determined is "will, or no will." It has the effect of vacating the probate in common form, such as the ex parte proof of wills in the probate court. When a contest is brought in the circuit court by those who, but for the will, would, under the law of descents and distribution, be entitled to interests in the estate of the deceased, the effect is to wipe out or vacate the action of the probate court, and the heirs bringing such suit in the circuit court as plaintiffs, or, as more properly called, contestants, have no right or power to dismiss the action. They may abandon the fight against the will, but cannot dismiss and thereby prevent the circuit court from acting on the will. The defendants, or proponents of the will, as more properly designated, have the laboring oar. Those interested as beneficiaries under the will assume the burden of offering such testimony as at least will make a prima facie case of the soundness of mind of the testator, a proper age to make a will, and prove it was properly executed with the requisite number of subscribing witnesses.

Cash v. Lust, 142 Mo. 630, 44 S.W. 724, 64 Am. St. Rep. 576 (of unpleasant memory to the writer), is very illuminative on the question as to who should become liable for costs in a will contest. In said case the defendants (proponents), the widow and nine sons and daughters of deceased, filed a motion to require the plaintiffs, a daughter and a grandson of the testator, who were given only nominal amounts, to give security for the costs or get out of court, and the trial court refused to make such a requirement as a condition to prosecuting their contest. They prevailed in the trial court, and the proponents appealed and urged as one of their grievances the action of the trial court in overruling their motion for costs.

The court, in passing on this question, used the following language, viz:

"The probate of a will in common form by the probate court is, in effect, interlocutory, and only becomes final and conclusive at the expiration of the time parties in interest are allowed in which to contest its validity in the circuit court. When a contest is entered, the circuit court thus acquiring jurisdiction should proceed, as required by statute, to determine whether the paper writing in question is, or is not, the will of the decedent. Contestants will not be allowed to dismiss the proceedings, for they are in rem and all persons interested, whether as contestants or proponents, are entitled to have the formal and conclusive judgment of the court either rejecting or confirming the will. [McMahon v. McMahon, 100 Mo. 97, 13 S.W. 208, and cases cited.] It follows that contestant cannot be required to give security for the costs. It has been held by this court in a recent case that the cost of making the formal proof of the due execution of the will, whether in solemn or common form, may be paid out of the estate of the decedent, and in case of a contest it is the duty of the executor named to make this proof if none of the parties interested do so. [In re Soulard's Estate, 141 Mo. 642, 43 S.W. 617.] By the formal proof is meant such as is required to be made ex parte in the probate court. [R. S., secs. 8880 and 8884.] There can be no doubt that contestants would have the right to withdraw their objections at any time before the case is submitted, and thereby relieve themselves of costs that may subsequently accrue, but they cannot be forced to do so by putting a condition upon their right to contest, such as requiring them to give security for the costs." (Italics are ours.)

It will thus be noted that our Supreme Court in that case directly passed on the identical point raised by the appealing proponent in the instant case, and ruled it in accord with her contention.

The writer, in mentioning the fact that the case of Cash v. Lust was of unpleasant memory, had not in mind the court's ruling on the question of costs, but having been of counsel for the two luckless contestants, did have in mind their unfortunate plight when the Supreme Court, after reviewing the testimony adduced by them in the lower court, held that it was not sufficient to make a submissible case, and sent the case back to the lower court directing it to enter up a judgment establishing the written instrument as the will of decedent. The regret was made more poignant by the fact...