Sanderson v. Richardson

• Decision Date: 04 October 1968
• Docket Number: No. 8744,8744
• Citation: 432 S.W.2d 625
• Parties: C. G. SANDERSON, Plaintiff-Appellant, v. Clyde E. RICHARDSON, the American Cancer Society, Missouri Division, Inc., a nonprofit corporation, the National Tuberculosis Association, Inc., the American Heart Association, Inc., and the Missouri Society for Crippled Children, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 625

432 S.W.2d 625

C. G. SANDERSON, Plaintiff-Appellant, v. Clyde E. RICHARDSON, the American Cancer Society, Missouri Division, Inc., a nonprofit corporation, the National Tuberculosis Association, Inc., the American Heart Association, Inc., and the Missouri Society for Crippled Children, Defendants-Respondents.

No. 8744.

Springfield Court of Appeals, Missouri.

Oct. 4, 1968.

George B. Scott, Jr., Ted M. Henson, Jr., Poplar Bluff, for plaintiff-appellant.

Dalton, Treasure & Bullard, Kennett, for defendants-respondents, National Tuberculosis Ass'n, Inc., and American Heart Ass'n, Inc.

STONE, Judge.

In this action to contest the will of Wilton L. Sanderson, a widower who resided in Butler County Missouri, and there died on August 11, 1966, plaintiff C. G. Sanderson, a brother, appeals from the judgment of the Circuit Court of Butler County entered on August 29, 1967, which dismissed plaintiff's petition with prejudice in response to a motion to dismiss theretofore filed by defendants National Tuberculosis Association, Inc., and American Heart Association, Inc. (sometimes hereinafter referred to jointly as the served legatees-defendants), two of the beneficiaries named in the will, on the grounds (a) that plaintiff had failed to secure and complete service upon all parties defendant within sixty days after the filing of the petition and had not shown good cause for such failure (§ 473.083(4)) and (b) that the Poplar Bluff Public Library, one of the beneficiaries named in the will, had not beed joined as a party defendant or served with process within the prescribed period of sixty days after institution of suit. (All statutory references are to RSMo 1959, V.A.M.S.) On this appeal, plaintiff's points are (1) that 'the trial court erred in its findings that plaintiff did not have good cause for failure to secure and complete service' and (2) that 'the Poplar Bluff Public Library was not a necessary party defendant.'

Our duty to consider and determine our appellate jurisdiction, in every case our first responsibility (Allen v. Smith, Mo.App., 375 S.W.2d 874, 878(1); Morrow v. Caloric Appliance Corp., Mo.App., 362 S.W.2d 282, 283(2)), is emphasized here by the unusual circumstance that all interested counsel have, at one time or another, been on both sides of the jurisdictional fence. Of course, plaintiff's notice of appeal brought the case to this court. Subsequently, the served legatees-defendants filed a motion to transfer the cause to the Supreme Court on the ground that the amount in dispute exceeds $15,000. Art. V, § 3, Const. of 1945, V.A.M.S.; § 477.040. In that motion, counsel pointed out that plaintiff had averred in his petition that the testator 'was at the time of his death possessed of . . . property . . . of the value of approximately $200,000,' and that the executor's (defendant Richardson's) sworn application for letters testamentary filed in the Probate Court of Butler County during August 1966 had recited that 'the probable value of deceased's estate' was $225,000; and, in support of their statement 'that the net value of the estate . . . after payment of all demands exceeds $15,000,' counsel attached to the motion to transfer a certified copy of the annual settlement of defendant Richardson, as 'pendente lite administrator,' filed in and approved by said probate court during August 1967, which showed that said administrator then held assets of the estate, consisting entirely of personalty, having an aggregate value of $81,215.08. Thereafter, plaintiff filed in this court a written 'Confession' of the served legatees'-defendants' motion to transfer and joined in the request that the cause be transferred to the Supreme Court.

However, appellate jurisdiction cannot be conferred by agreement or consent (Bock v. Sheahan Investment Co., Mo., 412 S.W.2d 393, 395(1); Juden v. Houck, Mo., 228 S.W.2d 668, 669(2); Kansas City v. Howe, Mo.App., 416 S.W.2d 683, 686(2)); and, after the transcript on appeal was filed with our clerk, the parties were notified that the confessed motion to transfer would be taken with the case. When in due time printed briefs were filed, counsel for the served legatees-defendants stated with commendable candor that, upon further investigation of the law, they were inclined to the view that their motion to transfer had been ill-advised and that the case should remain here. With this most recent expression of opinion, we agree.

This is a court of general appellate jurisdiction but the Supreme Court has only such limited appellate jurisdiction as is specifically conferred by the Constitution. Art. V, §§ 2 and 13, Const. of 1945; Fisher v. Lavelock, Mo., 282 S.W.2d 557, 560(2); State ex rel. Thompson v. Roberts, Mo., 264 S.W.2d 314, 317(3). For the appellate jurisdiction of the Supreme Court to attach because of the amount in dispute, the record made in the trial court (Holland v. City of St. Louis, Mo., 262 S.W.2d 1, 3(2), 4(6); Barksdale v. Morris, Mo., 224 S.W.2d 84, 86(3); Yacobian v. J. D. Carson Co., Mo.App., 205 S.W.2d 921, 922(1)), as embodied in the transcript on appeal (Snowbarger v. M.F.A. Central Cooperative, Mo., 317 S.W.2d 390, 393; In re Boeving's Estate, Mo.App., 388 S.W.2d 40, 43(4)), must show affirmatively and with certainty that, regardless of all contingencies, the amount in dispute exceeds $15,000, exclusive of costs. Jackson County Public Water Supply Dist. No. 1 v. Ong Aircraft Corporation, Mo., 388 S.W.2d 893, 895--896(2); Long v. Norwood Hills Corp., Mo., 360 S.W.2d 593, 596(3); Warmack v. Crawford, Mo., 192 S.W.2d 406, 407(2); Higgins v. Smith, 346 Mo. 1044, 1047, 144 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 possessed of . . . property . . . of the value of approximately $200,000'; and, at the two hearings on the served defendants' motion to dismiss, the only bit of evidence pertaining to the value of the estate was the hereinbeforenoted recital in the executor's application for letters testamentary as to 'the probable value of deceased's estate.' Even the certified copy of the annual settlement of defendant Richardson, as 'pendente lite administrator,' not offered in evidence in the trial court, not included in the transcript on appeal, and not properly for consideration here, showed no more than that said administrator then held assets having an aggregate value of $81,215.08. In these circumstances, it may not be said that the transcript shows affirmatively and with certainty that, regardless of all contingencies, the net value of the testator's estate is in excess of $15,000. Pasternak v. Mashak, supra, 383 S.W.2d at 761. Being satisfied that the appeal is properly lodged here, we turn to the facts bearing upon the merits.

In his will executed on July 16, 1962, testator (a) directed payment of his just debts and expenses of his last illness and funeral, (b) bequeathed 'all of my books and such of my pictures as may be desired' to the Poplar Bluff Public Library, (c) bequeathed the residue of his estate 'in four equal shares' to '1. American Cancer Society, Missouri Division, Inc. 2. National Tuberculosis Association, New York, New York. 3. American Heart Association, Inc., 44 East 23rd, New York 10, New York. 4. The Missouri Society for Crippled Children,' with a positive direction to his executor to sell all tangible property in his estate that said bequests might be paid in cash, and (d) appointed defendant Richardson as executor.

The will was admitted to probate on August 17, 1966. Shortly prior to expiration of the nine-month statutory period within which an action to contest the will might have been filed (§ 473.083(1)), to wit, on May 15, 1967, this suit was instituted in the Circuit Court of Butler County against defendant Richardson, the executor, and the four residuary legatees. In the caption of plaintiff's petition precisely as in the will, the name of defendant National Tuberculosis Association was followed by the address 'New York, New York,' and the name of defendant American Heart Association, Inc., was followed by the address '44 East 23rd, New York 10, New York,' while no addresses followed the names of defendants American Cancer Society, Missouri Division, Inc., and The Missouri Society for Crippled Children. Summonses were issued and on May 16, 1967, served upon defendant Richardson personally and upon defendants National Tuberculosis Association and American Heart Association, Inc., under § 351.630; but no summons was issued to, and no service was had upon, defendants American Cancer Society, Missouri Division, Inc., or The Missouri Society for Crippled Children. On June 17, 1967, defendant Richardson filed his separate answer. No other pleading was filed until July 18, 1967, when the two served legatees-defendants interposed their motion to dismiss plaintiff's petition on the grounds hereinbefore particularized in the opening paragraph of this opinion.

Plaintiff and the served legatees-defendants appeared by counsel at hearings on July 25 and August 22, 1967, and offered the hereinafter-outlined evidence bearing upon the issue as to whether plaintiff had shown 'good cause for failure to secure and complete service' on all defendants within sixty days after the filing of plaintiff's petition on May 15, 1967. § 473.083(4). Two documents from the file pertaining to administration of the testator's estate in the Probate Court of Butler County, i.e., (1) defendant Richardson's application for letters testamentary dated August 16, 1966, and (2) his subsequent request as executor, dated October 18, 1966, for service of notice by the probate clerk upon the legarees in connection with a sale proceeding, were offered and received in evidence. Both of those documentary...