McCue v. Peery

• Decision Date: 18 March 1922
• Docket Number: No. 22693.,22693.
• Citation: 293 Mo. 225,238 S.W. 798
• Parties: McCUE et al. v. PEERY et al.
• Court: Missouri Supreme Court

238 S.W. 798

293 Mo. 225

McCUE et al. v. PEERY et al.

No. 22693.

Supreme Court of Missouri, Division No. 2.

March 18, 1922.

Appeal from Circuit Court, Gentry County; John M. Dawson, Judge.

Proceedings to contest a will by Fannie McCue and others against Florence H. Peery and others. Judgment for contestees, and contestants appeal. Affirmed.

On August 22, 1919, the plaintiffs, who are appellants herein, commenced this action in the circuit court of Livingston county, Mo., to contest the will of J. H. Peery, who died in August, 1918, and whose will was admitted to probate in said county on August 13, 1918.

Defendants filed a demurrer to said petition, on the ground that said proceeding was barred by the statute of limitations. The case was transferred to the Gentry county circuit court on change of venue, and, on December 18, 1920, the demurrer aforesaid was sustained by said court, for the reason that said petition was not filed within one year from the date of judgment of the probate court of Livingston county aforesaid, probating said will, and said proceeding was dismissed. Appellants refused to plead further, a judgment was rendered against them for costs, and they appealed the case to this court.

Counsel for appellants state their theory of the case as follows:

"The contention of plaintiffs, appellants here, in this case is that the repeal and re-enactment of section 555, as it appears at page 106, Laws of Missouri for 1917, and the method of such repeal and re-enactment and change made in said section, whereby the time for filing contests of will was reduced from two years to one year, was without authority of law and void, for the reason that the bill by which said change was made, beginning at page 91 of the Acts of 1917, was defective, in that it was a violation of section 28 of article 4 of the Constitution of Missouri, for the reason that the intention to change the time for filing contests of wills was not clearly expressed in the title to said act; and that the said act contained more than one subject, and that said various subjects were incongruous and not germane to each other or to the subject expressed in the title of the bill, to wit, `Administration of Estates.' This is the sole contention of appellants."

Respondents contend that sections 525 and 527, R. S. 1919, are valid; and that the right of appellants to contest the validity of said will is barred by the one-year statute of limitations supra.

Dudley & Brandon, of Gallatin, Thos. H. Hicklin, of Chillicothe, and Scott J. Miller, of Bloomfield, for appellants.

Charles H. Mayer, of St. Joseph, Frank Sheetz and W. W. Davis, both of Chillicothe, and J. W. Peery, of Albany, for respondents.

BAILEY, C. (after stating the facts as above).

1. The rights of the parties to this litigation depend upon the validity a section 525, R. S. 1919, which reads as follows:

"If any person interested in the proabte of any will shall appear within one year after the date of the probate or rejection thereof, and, by petition to the circuit court of the county, contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up whether the writing produced be the will of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court. (R. S. 1909, § 555, amended Laws 1917, p. 106.)"

From the earliest history of our state until 1907, the law relating to "wills" was not classified under "Administration of Estates," but stood as an independent law and placed the limitation for contesting a will at five years. In 1907, the General Assembly passed an act (Laws 1907, p. 451), the title to which reads as follows:

"An act to amend sections 4622 and 4624 of the Revised Statutes of the State of Missouri, 1899, relating to wills."

The old law was simply changed in the above act by placing the limitation at two years instead of five. The law remained in this condition, until the revising session of the Legislature in 1909. In February of said year, a commission was appointed by the Forty-Fifth General Assembly to revise our statutes. The revising commission, thus appointed, was granted certain powers, by virtue of sections 9 and 10 of the acts of 1909, page 645, approved June 4, 1909. Section 9 of above act provides that:

"Immediately after the passage and approval of this act, the members of the revision commission appointed by the governor, * * * shall proceed to collate, compile, arrange, classify and codify the Revised Statutes for publication, as contemplated by this act, and they shall have power to supply any obvious omission or inaccuracy, or to correct any error or mistake in numbering or referring to sections, articles or chapters, or parts of any act or law in the Revised Statutes of 1899, whether said reference to a chapter, article or section is found in the body of a section or is used to designate the numerical location of such section, article or chapter in the body of the statutes, or any subsequent act of the general assembly to be incorporated in the Revised Statutes. Whenever it is evident that the word `chapter' has been erroneously used, the same may be changed and the word `act,' `article,' `law' or `statute' inserted in lieu thereof, or vice versa, and any errors in reference to sections, articles or chapters, or typographical or clerical errors in words may be corrected, or a section transferred, where it is evident that the same has been inappropriately placed and such divisions and subdivisions of the law and subjects to which they pertain may be made, and such terms or expressions may be used or employed to designate the same as in the judgment of the commission will best facilitate reference thereto, so that they do not in any case change, modify or alter the law." (Italics ours.)

Section 10 provides that:

"* * * Wherever an article or chapter has been transferred or placed under a more general heading, the title of the chapter or article transferred shall be retained at the place of its former location, followed by a reference to the subject and page where it is to be found in the present revision. * * *" (Italics ours.)

The revising commission, under the power conferred upon them supra, concluding that wills should be placed under the general classification of "administration," left the body of the law relating to wills unchanged, but classified the same under the general law of administration, and designated it as article 21 of chapter 2 of the Revised Statutes of Missouri of 1909. The commission complied with the requirements of section 10 of the acts of 1909, page 645, by inserting, on page 3707 of volume 3 of the Revised Statutes of 1909, where the law of wills had been formerly placed, the following: "Wills—See Administration, art. XXI." The above words plainly indicated to any person interested in the subject that the law relating to "wills," had been transferred from its former position, and classified as a part of the general administration law. By reason of the foregoing, sections 555 and 557 of the...