Smith v. Smith

• Decision Date: 14 April 1931
• Docket Number: 29311
• Citation: 37 S.W.2d 902,327 Mo. 632
• Parties: Elizabeth Smith and Archie Coffman, Appellants, v. Adam T. Smith et al
• Court: Missouri Supreme Court

37 S.W.2d 902

327 Mo. 632

Elizabeth Smith and Archie Coffman, Appellants, v. Adam T. Smith et al

No. 29311

Supreme Court of Missouri

April 14, 1931

Respondents' Motion for Rehearing Overruled April 14 1931.

Appeal from Linn Circuit Court; Hon. J. E. Montgomery Judge.

Reversed and remanded.

Roger Miller, Vane Thurlo and Scott J. Miller for appellants.

(1) Elizabeth Smith, the widow, has the right to contest the will. Sec. 525, R. S. 1919. (2) The motion to dismiss was not the proper pleading, and should not have been entertained by the court, nor sustained by the court. The proper proceeding would have been a demurrer at the end of plaintiffs' case. (3) Section 525, provides that "if any person interested in the probate of any will shall appear within one year after the date of probation," etc. (a) Archie Coffman, who, under the forged will, received $ 100 was a nephew of Elizabeth Smith, the wife of G. W. Smith. He has a direct pecuniary interest in the matter, in this: If the forged will was set aside, his aunt, his co-plaintiff, would, under the former will, inherit all the property, and at her death would have the right, if a will, to will him all the property, or, dying intestate, he would inherit from her as a nephew or blood relation. A litigant has a right to refuse to participate in a fraud, and to assist in setting the same aside. If the co-plaintiff of Elizabeth Smith had accepted the $ 100, under the forged will he would have been participating in the fraud, with knowledge. (b) Elizabeth Smith, the plaintiff, has a financial interest in the contesting of the forged will. In 1909 her husband made a will, giving her all his property. This will was made at a time when his mind was right and he was a vigorous man. The last will was made a short time before he died, after he was past eighty years of age. The first will was probated. The second was probated ten days thereafter. The plaintiff was an old woman, near eighty years of age. She was of feeble mind, a guardian appointed for her. The guardian filed her election. Then, when she came out from under the guardianship, she knew the will was a forgery. She then filed suit to set the same aside. Where is her financial interest? By her election she loses one-half of this property, by the first will she gets all of it. If the last will is set aside, then her election and partition, at which sale she bought, would be nugatory, for the reason it would be all out of her own property. If the last will, being a forgery, is set aside or is no will, then she takes under the first will and her financial interest would be about $ 15,000. Braeuel v. Reuther, 270 Mo. 604.

C. B. Burns and P. M. Marr for respondents.

(1) The widow, and a nephew of the widow who is not an heir of the deceased, are trying to contest this will. That they have a direct pecuniary interest at the time of the probate of the will, is a condition precedent to the right to contest. Braeuel v. Reuther, 270 Mo. 603; Gruender v. Frank, 267 Mo. 712; Teckenbrock v. McLaughlin, 236 Mo. 719; State ex rel. v. McQuillin, 246 Mo. 691; Watson v. Alderson, 146 Mo. 343. (2) A remote interest is not sufficient. 40 Cyc. 1243. (3) The widow had no right to contest the will. She was not bound by the will anyway, had already renounced it, had elected to take one-half of the real and personal property, and she proceeded to have land partitioned and sold and rights of herself and others adjudicated by a court that had jurisdiction. McMasters v. Blair, 29 Pa. 298; McAvoy's Est., 8 Phila. (Pa.) 595; Kase's Est., 10 Pa. Dist. 497; Thompson v. Thompson, 134 Ky. 757; Fallon v. Fallon, 107 Iowa 120; Re Smith, 165 Iowa 614; Missouri Probate Law & Practice, Kelley (5 Ed. 1926) art. 315, p. 398. (4) The general principle is well settled that whoever appears to contest a will is bound, if required, to show his interest and right to make the contest. Gore v. Howard, 94 Tenn. 577. The court may, of its own motion, determine whether persons who claim the right to contest the probate of a will have such status as entitles them to maintain the contest. Re Hamilton, 27 N.Y.S. 813, 76 Hun, 200. (5) Where the interest of the contestant is put in issue, this issue should be disposed of as a preliminary question before submitting to a jury the issue of the validity of a will. Re Hamilton, 27 N.Y.S. 813, 76 Hun, 200; Re Lord, 154 N.Y.S. 302, 90 Misc. 222; Re Bitter, 154 N.Y.S. 975; Henry v. Henry, 4 Dem. (N. Y.) 253; Rogers Estate, 154 Pa. 217; Edwards v. Galding, 38 Miss. 118; Re Wynn (Mich.), 159 N.W. 492; Safe Deposit Co. v. Devilbiss, 128 Md. 182, 97 A. 367; Meyer v. Henderson, 88 Md. 584; Reilly v. Dougherty, 60 Md. 276; Brewer v. Barrett, 58 Md. 587; Re Land, 166 Cal. 538, 137 P. 246; Re Wickersham, 153 Cal. 603, 96 P. 311; Re Edelman, 148 Cal. 233, 82 P. 962; Flowers v. Flowers, 74 Ark. 212.

Cooley, C. Davis and Westhues, CC., concur.

OPINION

COOLEY

Suit to contest the purported last will of one George W. Smith. The suit was filed in the Circuit Court of Sullivan County and sent on change of venue to Linn County where the trial court sustained a motion filed by defendants to dismiss the cause. After unavailing motions for new trial and in arrest, plaintiffs appealed.

Plaintiff Elizabeth Smith is the widow of testator. Plaintiff Coffman's relationship to testator is not alleged, but it developed, as will be herein shown, that he is a nephew of said Elizabeth, but not an heir of testator. As grounds for setting aside the will the petition alleges, in substance and effect, that testator did not have mental capacity to make a will at the time the instrument in question purports to have been executed; that he did not in fact sign said instrument and that his purported signature thereto was appended by some one else without his knowledge or consent "or at least without his knowledge of what the paper writing . . . meant, or intended to mean;" and that "if the said purported will was signed at the direction of George W. Smith it was through the undue influence of D. V. Mardis (not a defendant) and others acting as agent of the defendants," and that "the defendants and each of them exerted an undue influence over the mind of the said George W. Smith, deceased." The petition alleged no facts showing that Coffman had any interest entitling him to contest the will, nor did it allege facts showing that Mrs. Smith could have profited by setting aside the will, since by simply renouncing it she could have rendered it inoperative so far as it affected her rights in her husband's estate.

Twelve of the fifteen defendants filed general demurrers to the petition, alleging that it failed to state facts sufficient to constitute a cause of action. The other defendants filed no pleading. The court overruled the demurrers and thereupon all the defendants filed a motion to dismiss which, omitting caption and signatures, reads as follows:

"Come now the defendants herein and move the court to dismiss the plaintiffs' petition and proceedings herein, and as grounds for such motion state:

"That neither of the plaintiffs herein are such persons as have the right to contest a will under the laws of this State.

"That by the terms of the contested will herein the plaintiff Archie Coffman receives the sum of $ 100 as a legatee; that he is not an heir of the testator, and if said will is set aside he will receive nothing from said estate.

"That the plaintiff Elizabeth Smith as the widow of the deceased, has duly made her election in the Probate Court of Sullivan County, Missouri, to take one-half of the personal and one-half of the real estate of the deceased, has had the real estate of said deceased partitioned and sold under said election in the Circuit Court of Sullivan County, Missouri, and has had her homestead in said land set out and is bound by her said election in the Circuit Court of Sullivan County, Missouri, and has had her homestead in said land set out and is bound by her said election and partition, and if the will herein contested should be set aside she would not be permitted to elect to take any greater interest in said estate than she has now taken with the will probated."

The court proceeded to hear evidence upon the motion to dismiss. Defendants offered evidence tending to show that plaintiff Coffman is a nephew of his co-plaintiff, but not an heir of testator; that after the probate of the will in controversy, plaintiff Elizabeth renounced the will and filed her election to take one-half of the real and personal property of testator, subject to payment of debts, testator having left no descendants, and that she subsquently brought suit to partition the real estate, claiming one-half thereof by her election and homestead in the other half; that the partition suit proceeded to an interlocutory decree in accordance with the petition, ordering homestead set off to said Elizabeth and the balance of the land sold, and that commissioners were appointed who set off the homestead.

Defendants' evidence there stops. We infer from statements in briefs of counsel that the partition proceedings were halted at that stage by the institution of this suit to contest the will.

Plaintiffs did not at first offer objection to the hearing of evidence on the motion, but after defendants had progressed to the point of having shown the widow's renunciation of the will and her election to take under the statute, plaintiffs objected and asked that the evidence heard be stricken out on the ground that it did not go to the "issues of the contest;" that a motion to dismiss a will contest is not contemplated by the statute, which prescribes how such suits shall be brought and prosecuted. The objection and motion to strike out were overruled. Defendants proceeded...