Russell v. Nelson

Citation295 S.W. 118
Decision Date24 May 1927
Docket NumberNo. 25518.,25518.
PartiesRUSSELL et al. v. NELSON et al.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Suit by Margaret E. Russell and others against Charles C. Nelson and another to set aside the will of Annie Milne, deceased. Judgment for defendants, and plaintiffs appeal. Affirmed.

Henry A. Bundschu, Leon M. Bailey, and Charles M. Blackmar, all of Kansas City, and A. R. Russell, of St. Louis, for appellants.

Theodore Remley, E. J. Curtin, Lee C. Hull, and C. W. German, all of Kansas City, for respondent Nelson.

ATWOOD, J.

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, Mo., 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 $1,200 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, Mo., 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 net 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, R. S. 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, R. S. 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, loc. cit. 693, 152 S. W. 341, Ann. Cas. 1914B, 526. If the kindred of either of the predeceased husbands of the testatrix are thus interested, it is because of section 305, R. S. 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, R. S. 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, R. S. 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 subject or context repugnant to such construction." As we read section 305, the context is repugnant to any. application of the above rule. The evident purpose of section 305 is to provide a scheme for the devolution of property which would otherwise, under the conditions assumed to exist, escheat to the state. One of the assumed conditions is that "there be no * * * husband or wife" surviving the intestate. The rule contended for cannot apply to and pluralize this use of the words "husband and wife," for the reason that the surviving husband or wife inherits from the deceased spouse by virtue of the existence of the marriage relation at the time of the death of the intestate, and the policy of the law is such that there could not be more than one such person. Words importing the singular number were thus used with purpose and discrimination, and to read them otherwise would be repugnant to the context of this clause. Likewise the latter part of the section, providing that the estate of the intestate 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," hypothesizes a condition actually and legally possible.

If, however, the rule above indicated in section 7055 be invoked, and the words "wife" and "husband" as last above used be pluralized, even in the alternative, an imaginary and legally impossible condition is hypothesized, under which there is no scheme for the devolution of property provided by law, because the existence of only one surviving husband or wife is recognized in law. If the rule cannot be applied to pluralize the nouns "wife" and "husband," as last used in the section, it cannot be applied to pluralize the same words as next above used, because the word "such," appearing in the clause...

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