Russell v. Nelson

• Decision Date: 24 May 1927
• Docket Number: 25518
• Citation: 295 S.W. 118,317 Mo. 148
• Parties: Margaret E. Russell, James Milne, Martha Taylor, Rosetta Lee Dill, David Henry Milne, Cora E. Stanley, Homer H. Milne, Grace Milne McCarthy, Arthur B. Milne, Ralph N. Milne, T. Carl Milne, Archibald Buckless, Herbert T. Chase and Florence T. Chase, Appellants, v. Charles C. Nelson and Charles Henry Lamb
• Court: Missouri Supreme Court

295 S.W. 118

317 Mo. 148

Margaret E. Russell, James Milne, Martha Taylor, Rosetta Lee Dill, David Henry Milne, Cora E. Stanley, Homer H. Milne, Grace Milne McCarthy, Arthur B. Milne, Ralph N. Milne, T. Carl Milne, Archibald Buckless, Herbert T. Chase and Florence T. Chase, Appellants, v. Charles C. Nelson and Charles Henry Lamb

No. 25518

Supreme Court of Missouri

May 24, 1927

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Affirmed.

Henry A. Bundschu, Leon M. Bailey, Charles M. Blackmar and A. R. Russell for appellants.

(1) The kindred of the first husband of the testatrix had an interest in the probate of the will and were proper parties to contest the same. Secs. 525, 305, 7055, R. S. 1919; Garrett v Wiltse, 252 Mo. 699, 161 S.W. 694; Haniphan v Long, 70 Mo.App. 351; State ex rel. v. McQuillin, 246 Mo. 517, 534; Bassil v. Loffer, 38 Iowa. 452; Sparks v. Bodensich, 72 Kan. 5; Vidal v. Girard's Executors, 2 How. 127, 11 Law Ed. 205. (2) This action was commenced within the time contemplated by the statute. Secs. 1274, 3980, R. S. 1919; Lilly v. Tobbein, 103 Mo. 477; Eulinberg v. Life Ins. Co., 261 S.W. 725; Pickel Stone Co. v. McClinton, 177 Mo.App. 494; Baker Manufacturing Co. v. Hide Co., 242 S.W. 134; Orchard v. Store Co., 197 S.W. 42; Turner v. Noble, 211 Mo.App. 656, 249 S.W. 103. The defendants have waived any right to have their demurrer sustained on the ground that the action is barred by the Statute of Limitations, by permitting without objections, an amendment allowing Herbert T. Chase and Florence T. Chase to be made new and additional parties plaintiff. Sec. 525, R. S. 1919; Merriman v. Springfield, 142 Mo.App. 506, 127 S.W. 122.

Theodore Remley, E. J. Curtin, Lee C. Hull and C. W. German for respondent.

(1) The demurrer was properly sustained. Secs. 305, 7055, R. S. 1919; State ex rel. v. Hostetter, 137 Mo. 636; Farmers Bank v. Harrison, 57 Mo. 503; In re Koehler, 174 Mo.App. 297; Secs. 320, 3720, 7054, 7056, R. S. 1919; Buckhorn v. Greenwood, 208 S.W. 59; O'Brien v. Ash, 169 Mo. 283; State ex rel. v. Guinotte, 275 Mo. 298; Magoun v. Bank, 170 U.S. 283; Watson v. Alderson, 146 Mo. 333; Braeuel v. Reuther, 270 Mo. 603; State ex rel. v. McQuillin, 246 Mo. 674; Hays v. Hogan, 273 Mo. 25. (2) The amendment being made more than a year after the probate of the will cannot serve to bring the Chase heirs properly into the suit. Sec. 1274, R. S. 1919; Lilly v. Tobbein, 103 Mo. 477; Walker v. Railroad, 193 Mo. 453; Turner v. Noble, 249 S.W. 103; Burnham & Co. v. Tillery & Co., 85 Mo.App. 453; Union Pac. Railroad Co. v. Wyler, 158 U.S. 285; Bricken v. Cross, 163 Mo. 449; Buel v. Transfer Co., 45 Mo. 562; 2 Wood on Limitations (4 Ed.) p. 1533; Fields v. Maloney, 78 Mo. 172; Scoville v. Glasner, 79 Mo. 449. (3) The demurrer does not waive the question of limitation. 7 R. C. L. 1004; Ragan v. Railway, 111 Mo. 456; Patterson, Mo. Code Pl. (2 Ed.) 807; Crowley v. Sutton, 209 S.W. 902; Taber v. Mo. Pac. Ry. Co., 186 S.W. 688; Ford v. Dickinson, 217 S.W. 294; Stone v. Perkins, 217 Mo. 586.

Atwood, J. All concur, except Gantt, J., not sitting.

OPINION

ATWOOD

This case comes to the writer on reassignment. It is a suit to set aside the will of Annie Milne, deceased. Demurrer was sustained to plaintiff's second amended petition, and plaintiffs have appealed from the order of the court dismissing the petition and rendering judgment for costs in favor of defendants.

Annie Milne died in February, 1921, a resident of Jackson County, Missouri, and left a will bequeathing her estate, which consisted of personal property valued at more than $ 50,000, to respondent Charles C. Nelson as trustee, said will further providing that said trustee should pay all her just debts, including expenses incident to her last illness and interment and cost of a suitable monument, and should also pay the sum of $ 1200 to Euphemy M. Lamb, and that the said Charles C. Nelson should hold all the rest, residue and remainder of the property of said deceased "for his own use and behoof."

On January 18, 1922, Margaret E. Russell and others, constituting the heirs of A. H. Milne, predeceased husband of the said Annie Milne, filed a petition in the Circuit Court of Jackson County, Missouri, against Charles C. Nelson and Charles Henry Lamb, the latter having succeeded to the interest of Euphemy M. Lamb, for the purpose of contesting the validity of said will. Plaintiffs alleged in said petition that the said Annie Milne left surviving her no children or their descendants, no father, no mother, no brother and no sister, nor their descendants, and no husband, and no paternal or maternal kindred capable of inheriting, and that therefore, in accordance with the laws of descents and distributions, the whole of her estate should go to the kindred of A. H. Milne, the husband of said Annie Milne who had died prior to the death of his wife leaving as kindred the plaintiffs named in said petition, their relationship being fully set forth showing them to be his sole kindred and heirs. The petition also alleged that the purported will of the said Annie Milne, deceased, was not her last will and testament; that at the time of the execution of the same she was not of sound mind and memory but was mentally incapable of making a will or of disposing of her property; that the same was procured through the duress and undue influence of defendant Nelson; and was not executed in compliance with the formalities required by law.

Thereafter, on January 27, 1922, plaintiffs filed amended petition, to which defendants separately demurred on the ground that said amended petition on its face failed to state facts sufficient to constitute a cause of action against said defendants.

Thereafter, on June 22, 1923, plaintiffs by leave of court filed a second amended petition identical with the original petition except that it further alleged that after the death of the said A. H. Milne the said Annie Milne married one Erastus Chase, who also predeceased her, leaving Herbert T. Chase and Florence T. Chase as his sole surviving heirs at law, who were joined as plaintiffs therein; and that in accordance with the laws of descents and distributions the whole of said estate should go to the kindred of the deceased husbands of the said Annie Milne as specified in said second amended petition. The petition was further amended by interlineation on the fourth page thereof on October 25, 1923, by leave of court, as follows: "Said will was admitted to probate February 22, 1921."

Defendant Nelson filed special demurrer which was sustained. The grounds therein specified were that the petition on its face failed to state facts sufficient to constitute a cause of action against demurrant; that there was a misjoinder of parties plaintiff in that the petition on its face showed that the alleged heirs of A. H. Milne, the deceased's first husband, had no financial or other interest in the estate of testatrix; and that such interest, if any, of the heirs of deceased's second husband, were barred by Sections 525 and 527, Revised Statutes 1919.

Appellants' sole assignment of errors is that "the court erred in sustaining defendants' demurrer to plaintiff's second amended petition."

All parties apparently concede that the kindred of Erastus Chase, the last predeceased husband of the testatrix, who were the new parties plaintiff in the amended petition, had an interest in the probate of the will and, if not barred by the above statutes, were proper parties to institute and maintain suit to contest the will. Appellants further contend that the kindred of A. H. Milne, the first predeceased husband of testatrix, who were the only plaintiffs named in the original petition, also had an interest in the probate of the will and were proper parties to contest the same.

Section 525, Revised Statutes 1919, provides that any person who would contest a will must be "interested in the probate" of the will. We have also held that such person must have a direct financial interest which would be benefited by setting aside the will, and if the petition on its face shows that the plaintiff has no such interest the court has power to sustain a demurrer to the petition. [State ex rel. v. McQuillin, 246 Mo. 674, l. c. 693.] If the kindred of either of the predeceased husbands of the testatrix are thus interested it is because of Section 305, Revised Statutes 1919, which is as follows:

"If there be no children or their descendants, father, mother, brother nor sister, nor their descendants, husband or wife, nor any paternal nor maternal kindred capable of inheriting, the whole shall go to the kindred of the wife or husband of the intestate, in the like course as if such wife or husband had survived the intestate, and then died entitled to the estate."

Section 7055, Revised Statutes 1919, relating to the construction of statutes, provides: "When any subject-matter, party or person is described or referred to by words importing the singular number . . ., several matters and persons . . . shall be deemed to be included."

Appellants insist that this rule applies to Section 305. If so, the latter part of Section 305 should be construed as though it read as follows (supplied words in italics): "the whole shall go to the kindred of the wife or wives or husband or husbands of the intestate, in the like course as if such wife or wives or husband or husbands had survived the intestate, and then died entitled to the estate."

The application of Section 7055 is defined and limited by Section 7056, Revised Statutes 1919, relating to the same subject which provides that the rule above prescribed in Section 7055 "shall apply in all cases, unless it be otherwise specially provided, or unless there be something in the...