Miller v. Munzer

• Decision Date: 21 October 1952
• Docket Number: No. 28414,28414
• Parties: MILLER v. MUNZER.
• Court: Missouri Court of Appeals

Page 966

251 S.W.2d 966

MILLER v. MUNZER.

No. 28414.

St. Louis Court of Appeals, Missouri.

Oct. 21, 1952.

Rehearing Denied Nov. 14, 1952.

Harold I. Elbert, St. Louis, for appellant.

Samuel H. Liberman, Richard D. Duncan, St. Louis, for respondent.

HOUSER, Commissioner.

This is a statutory suit to contest a paper writing dated December 28, 1933 and admitted to probate on March 25, 1938 as the last will and testament of Phil Miller, deceased.

Plaintiff, H. L. Miller, filed this suit on March 24, 1939 against Sadie Miller Munzer, the named beneficiary in the will, upon the sole ground that the execution of the will had been procured by the exercise of undue influence on the part of defendant. The original petition did not plead any facts showing that plaintiff was a person interested in the probate of the will, nor did the original petition contain any allegations with respect to the execution of another will subsequent to December 28, 1933. On August 30, 1940, more than two years after the date of the probate of the will, plaintiff filed his first amended petition alleging as an additional ground of contest that decedent in January, 1936 executed a will which revoked the will of December 28, 1933. On February 10, 1943 plaintiff interlined the following in his second amended petition:

'Plaintiff further states that Jacques B. Miller, dec'd, was a son of the above-named Phil Miller, dec'd, and that plaintiff is a son of the said Jacques B. Miller, and, as such, is a person interested in the probate of the alleged will, dated December 28, 1933, of the said Phil Miller, dec'd, and is therefore entitled to contest the validity of said Will under the provisions of Section 538 of the Revised Statutes of Missouri, 1939.'

The second amended petition, after further pleading and rulings not now pertinent, was refiled by leave of court on June 29, 1948.

By her answer defendant raised the question of the jurisdiction of the court over the subject matter on the ground that in neither the original petition, nor in any amendment thereto filed within one year from the date the will was admitted to probate, did it appear from plaintiff's pleadings (1) that plaintiff was a person interested in the probate of the will and entitled to contest its validity; (2) that plaintiff was relying upon the revocation of the will by a later will. The answer further charged that the new ground set up constituted a departure from the original petition, and alleged that the assertion of this new ground was barred by the period of limitation prescribed by Sec. 538, RSMo 1939, section 468.580 RSMo 1949, V.A.M.S.

When the case came on for trial, and prior to the commencement thereof, the trial judge stated that he would exclude any evidence offered by plaintiff to show that the will of December 28, 1933 was revoked by a will executed in January, 1936. The trial judge took the position that such evidence would not be admissible because it was to be introduced in support of a ground of contest which was first alleged in an amended petition filed after the expiration of the one year period within which a will contest may be instituted. The taking of evidence commenced, and the defendant offered evidence to sustain the validity of the will of December 28, 1933. After defendant rested plaintiff announced that he desired to contest the validity of the 1933 will solely on the ground that it was revoked by the 1936 will. The court having indicated that this evidence would be excluded, plaintiff made an offer of proof of the proper execution and attestation of the will, and that the will contained a clause revoking all former wills. The court sustained defendant's objection to the offer of proof, whereupon counsel for plaintiff offered no additional evidence, except that the entire circuit file was introduced in evidence. The court at the request of defendant then sustained a motion for a directed verdict, and at the direction of the trial judge the jury returned a verdict sustaining the paper writing of December 28, 1933 as the last will and testament of Phil Miller, deceased. In due course plaintiff perfected his appeal to this court.

The principal question for decision is whether the amendment of the petition, changing the ground of contest from undue influence to revocation, states a new and distinct cause of action substantially changing the cause of action set out in the original petition, or constitutes but a restatement of the original cause of action upon a different supporting ground. If the former, the court correctly ruled on the offer of proof of revocation, Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W.2d 233, because the amendment admittedly was made after the expiration of the statutory period prescribed by section 468.580, RSMo 1949, V.A.M.S., which provides:

'If any person interested in the probate 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, * * * an issue shall be made up whether the writing produced be the will of the testator or not, * * *.'

If the latter, the court erred in refusing the offer of proof. Bricken v. Cross, 163 Mo. 449, 64 S.W. 99; Rathmacher v. Linberg, Mo.App., 14 S.W.2d 467.

Appellant argues that the statutory issue and the gist of the action in a will contest is 'devisavit vel non?'; that the cause of action is single; that the various grounds employed to support the cause of action are merely incidents of the cause of action and may be changed from one to another without effecting a change in the cause of action; that an amendment adding new grounds of contest after the expiration of the statutory period is proper.

Respondent contends that the institution of a will contest on one ground and the subsequent addition of another ground of contest constitutes a departure, and that the one year limitation bars the maintenance of the suit on the second ground.

Since the rule against departure through amended pleadings is no longer in force and has been abrogated by the new code, White v. Sievers, 359 Mo. 145, 221 S.W.2d 118, we are concerned only with the question whether the amendment is subject to the statute of limitations.

The right to amend the petition in a will contest suit by stating a new ground of contest after the statutory period of limitations has run has not been decided by the courts of this state. Our Supreme Court has settled the right, in a will contest, to bring in new parties by amendment after the expiration of the one year period, allowing such an amendment where plaintiff is a proper person to bring the action, Gresham v. Talbott, 326 Mo. 517, 31 S.W.2d 766, but disallowing the right where the original plaintiff is a stranger to the cause of action, Russell v. Nelson, 317 Mo. 148, 295 S.W. 118.

Our courts have been liberal in allowing amendments expressly to save the cause from the statute of limitations, when the cause of action set up by way of amendment is not totally different from that alleged in the original petition. Gresham v. Talbott, supra; Jensen v. Hinderks, 338 Mo. 459, 92 S.W.2d 108; Cytron v. St. Louis Transit Co., 205 Mo. 692, 104 S.W. 109, and cases cited.

Various tests have been applied in determining whether a new cause of action is introduced by a new pleading: (1) whether the same evidence would support both original and amended petitions, Mitchell v. Health Culture Co., supra; (2) whether a recovery on the original petition petition would be a bar to the recovery on an amended petition, Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; (3) whether the measure of damages is the same in each case, Bader v. Beck, Mo.App., 173 S.W.2d 647; (4) whether the amendment changes the nature of the action or destroys the identity of the original transaction, Jensen v. Hinderks, supra; Schwab Clothing Co. v. St. Louis, I. M. & S. Ry. Co., 71 Mo.App. 241.

In so far as they are applicable, considering the peculiar nature of a will contest, the amended petition in the case at bar meets and satisfies these tests, and compels the conclusion that no new cause of action was introduced by the amendment of the petition to state an additional ground of contest.

Test (1), supra, cannot be complied with because of the very nature of a will contest. Inevitably a new ground of contest calls for different evidence, but a new ground of contest is not a new cause of action, for the reason that there is but one cause of action in a will contest, no matter how many grounds of impeachment exist.

'Cause of action,' when considered in a procedural sense with reference to pleadings, has been defined as '* * * the facts giving rise to the action; the fact or combination of facts which give rise to or entitle a party to sustain an action; the existence of those facts which give a party a right to judicial interference or relief in his behalf; the entire set or state of facts that give rise to an enforceable claim.' 1 C.J.S., Actions, Sec. 8(c), p. 982. In Chestnut v. Mertz, Mo.App., 144 S.W.2d 194, 196, we defined cause of action as follows: 'A cause of action consists of those facts, as between two parties, entitling one of them to a judicial remedy of some sort against the other for the redress of a wrong.' The Supreme Court in Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7, loc.cit. 10, defined cause of action as 'the cause for action, i.e., the underlying facts combined with the law giving the party a right to a remedy of one form or another based thereon.'

A cause of action to contest a will consists of all of those facts available to a contestant which, if established, legally entitle the contestant to a judgment setting aside the will. The ultimate issue in all will contests is fixed by statute, i. e., whether the paper writing produced be the will of the testator or not. The gist of the cause of action is the invalidity of...