Pasternak v. Mashak
| Decision Date | 09 November 1964 |
| Docket Number | No. 1,No. 50335,50335,1 |
| Citation | 383 S.W.2d 760 |
| Parties | Dorothy Delores PASTERNAK, Respondent, v. Frank MASHAK and Frank Mashak, Executor of the Last Will and Testament of Elizabeth Milanko, Deceased, Appellants |
| Court | Missouri Supreme Court |
Ralph E. Suddes, Mattoon, Ill., Sidney W. Horwitz, Dubinsky & Duggan, St. Louis, for plaintiff-respondent.
Frank Mashak, St. Louis, for appellants.
HOUSER, Commissioner.
The is a suit to contest a will. A jury found the instrument not to be the will of testatrix. Defendant, sole beneficiary appealed on the ground that the proof was insufficient to establish mental incapacity or undue influence and that the jury was improperly instructed on the law of the case.
Inquiry into the first concern of every court convinces us that we do not have appellate jurisdiction and that the case must be transferred to the appropriate court of appeals, for the following reasons.
We do not have jurisdiction on the ground that the title to real estate is involved for the reason that no real estate is listed in the inventory. Winn v. Matthews, Mo.Sup., 130 S.W.2d 484 .
We do not have jurisdiction to the ground that the amount in dispute, exclusive of costs, exceeds the sum of $15,000 because the record filed in this court does not affirmatively show with certainty that the amount in dispute, regardless of all contingencies, exceeds that sum.
The pleadings do not place any value on the estate. The petition alleges that testatrix died possessed of 'a large amount of property,' without stating how much. The answer is silent on the question. It is the 'net value of the estate' that fixes jurisdiction on appeal from a judgment for will contestants, Gee v. Bess, Mo.Sup., 171 S.W.2d 672, but neither oral nor documentary evidence filed in this court affirmatively shows the net value of testatrix' estate after the payment of allowed and unallowed (if any) claims and expenses of administration incurred and to be incurred.
Appellant's jurisdictional statement recites that no claims were pending against the estate when this case was tried; that the assets then and at the time the appeal was taken were $21,751.65, 'subject to inheritance taxes, balance of executor's fee and final probate costs' (the amounts not stated), and that the amount involved on this appeal is in excess of $15,000, but this mere recital does not prove itself and does not confer appellate jurisdiction on this court. State ex rel. State Highway Comm. v. Schade, Mo.Sup., 265 S.W.2d 383. Jurisdiction must affirmatively appear from the record, Juden v. Houck, Mo.Sup., 228 S.W.2d 668, and cannot be grounded upon surmise, speculation or conjecture. Long v. Norwood Hills Corp., Mo.Sup., 360 S.W.2d 593.
A thorough search of the record and exhibits admitted in evidence, as filed in this court, shows that the time for the filing of claims has passed; that settlements have been filed and approved and that, according to the annual settlement filed ...
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Pasternak v. Mashak
...appealed to the Supreme Court. Ruling that it lacked appellate jurisdiction, that court transferred the cause to this court. Pasternak v. Mashak, Mo., 383 S.W.2d 760. Dorothy Delores Pasternak, the contestant, challenged the purported will on the pleaded grounds of lack of testamentary capa......
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Sanderson v. Richardson
...S.W.2d 149, 151(6). In a will contest, '(i)t is the 'net value of the estate' that fixes jurisdiction on appeal . . ..' Pasternak v. Mashak, Mo., 383 S.W.2d 760, 761(3). (All emphasis herein is ours.) Instant plaintiff pleaded no more than that the testator 'was at the time of his death pos......
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Pasternak v. Mashak
...the same will was transferred to the Court of Appeals because the record showed no basis for jurisdiction of this court. Pasternak v. Mashak, Mo., 383 S.W.2d 760. The St. Louis Court of Appeals thereafter reversed the judgment in favor of the contstant. 392 S.W.2d 631. At the ensuing retria......
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Sweeney v. Eaton
...and appraisement of Mrs. Robson's estate is not of record, so we may not be guided by that, as was the Supreme Court in Pasternak v. Mashak, Mo., 383 S.W.2d 760. The question then is whether we must transfer the appeal (on the ground that title is involved) if the record evidence indicates ......