State ex rel. Bier v. Bigger, 38886.

• Citation: 178 S.W.2d 347
• Decision Date: 07 February 1944
• Docket Number: No. 38886.,38886.
• Parties: STATE OF MISSOURI at the Relation of HENRY BIER, Relator, v. BYRNE E. BIGGER, Judge of the Probate Court of Marion County, Missouri.
• Court: Missouri Supreme Court

178 S.W.2d 347 STATE OF MISSOURI at the Relation of HENRY BIER, Relator,
v.
BYRNE E. BIGGER, Judge of the Probate Court of Marion County, Missouri. No. 38886. Supreme Court of Missouri. Court en Banc, February 7, 1944. Rehearing Denied, March 6, 1944.

[178 S.W.2d 348]

Mandamus.

PETITION DISMISSED.

Ben E. Hulse, John L. Plowman and Harry Carstarphen for relator.

(1) The amendment of the section of the section of the statute, which is now Section 532, R.S. 1939, found at 1921 Session Acts, page 110, is unconstitutional because the title is not in conformity with the requirements of the Constitution of Missouri. Mo. Constitution, Sec. 28, Art. 4; Sherrill v. Brantley, 334 Mo. 497, 66 S.W. (2d) 529; Black's Law Dictionary; State ex rel. United Rys. Co. v. Wiethaupt, 231 Mo. 449; State ex rel. Niedermeyer v. Hackmann, 292 Mo. 27, 237 S.W. 742; State v. Great Western Coffee & Tea Co., 171 Mo. 634. (2) Under the laws of the State of Missouri a will cannot be probated in any manner, in any form, or in any court, until it has been through the probate court. The probate court must pass on the questions, and although questions in equity as incidents arise, the machinery of the probate court is held to be adequate. Hans v. Holler, 165 Mo. 47; Canty v. Lehmkuhl, 164 S.W. (2d) 132; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347; Stowe v. Stowe, 140 Mo. 594; Sec. 847, R.S. 1939. (3) A Statute of Limitations will not be permitted by the courts to become the instrument of fraud, or the means whereby a fraud may be perfected. Deake's Appeal, 12 Atl. 790, 80 Me. 50; 2 Story on Eq. Jur., sec. 1521; Bailey v. Glover, 21 Wall. 342, 22 L. Ed. 636; 88 U.S. 342; Traer v. Clews, 115 U.S. 528, 6 S. Ct. 155; Quattlebaum v. Busbea, 162 S.W. (2d) 44; Shainwald v. Davids, 69 Fed. 687; Foley v. Jones, 52 Mo. 64; Johnson v. United Rys. Co. of St. Louis, 243 Mo. 278, 147 S.W. 1077; Arnold v. Scott, 2 Mo. 13; Texas & P.R. Co. v. Gay, 86 Tex. 571, 26 S.W. 599. (4) Limitations may not run in favor of a trustee as against his cestui que trust. McMullen v. Winfield B. & L. Assn., 64 Kan. 298, 67 Pac. 892; 25 C.J. 1118; Foster v. Petree, 347 Mo. 992, 149 S.W. (2d) 851; In re Thomasson's Estate, 171 S.W. (2d) 553. (5) If there are any heirs of the deceased Joseph M. Smith, they may not contend that the fraud is that of another and that they are exempt from the consequences of it. A principal having received the benefit of an agent's fraud does not have equity in his favor. 34 Am. Jur. 190, sec. 232. (6) Section 532, R.S. 1939, is not a condition of a right to execute a will. On the contrary, it is merely a Statute of Limitations, a statute of repose. It is procedure, it goes to the remedy. Substantive law concerning a will being apart from the attempted amendment of 1921, the amendment is subjected to construction of limitations and fraud measured by legislative intent and the body of the law on limitations. It was the law before the amendment and the Legislature knew it in 1921. That limitation will not be construed to aid fraudulent concealment. Secs. 532, 4463, R.S. 1939; May Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W. (2d) 852; Mo. Constitution, Art. 2, Sec. 30; U.S. Constitution, Amend. Five and Fourteenth Amendment.

Rendlen, White & Rendlen, Sam Friedman, Roy Hamlin and Fuller, Fuller & Ely for respondent.

(1) The courts indulge the presumption that every statute is constitutional unless the contrary clearly appears and the burden of showing unconstitutionality rests upon the party alleging it. Legal Tender Cases, 12 Wall. 457, 21 L. Ed. 287; Ogden v. Saunders, 12 Wheat. 212, 6 L. Ed. 606; Becker Steel Co. v. Cummings, 296 U.S. 74; 80 L. Ed. 54; Alaska Packers Assn. v. Industrial Accident Comm., 294 U.S. 532, 70 L. Ed. 1044; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194; 79 L. Ed. 281; State ex rel. Barker v. Merchants Exchange, 269 Mo. 346, 190 S.W. 903, Ann. Cas. 1917E, 871; State v. Scullin-Gallagher Iron & Steel Co., 268 Mo. 178, 186 S.W. 1007, Ann. Cas. 1918E, 620; Tuberculosis Hospital District v. Peter, 253 Mo. 520, 161 S.W. 1155, Ann. Cas. 1915C, 310; State ex rel. Wiles v. Williams, 232 Mo. 56, 133 S.W. 1, 34 L.R.A. (N.S.) 1000. (2) The title of the Act of 1921 which amended Section 532 by placing the one year limit therein, which Act is found in the Laws of 1921 at page 110, is sufficient, and the amendatory Act does not contain unrelated subjects, so that Section 28 of Article 4 of the Constitution is not violated. The provisions of Section 28 of Article 4 are liberally construed by this court in order to sustain the constitutionality of Acts of the Legislature. Young v. Greene County, 342 Mo. 1105, 119 S.W. (2d) 369; Asel v. City of Jefferson, 287 Mo. 195, 229 S.W. 1046. (3) All that is required by Section 28 of Article 4 is that the different provisions contained in a legislative act fairly relate to the same general subject matter expressed in the title. It is unimportant that some provisions of the Act be not specifically named in the title, or that by refinement of terminology, the subject matter of different sections could be separately catalogued. Massey-Harris Harvester Co. v. Federal Reserve Bank, 340 Mo. 1143, 104 S.W. (2d) 385; Graves v. Purcell, 337 Mo. 574, 85 S.W. (2d) 543; State v. Ward, 328 Mo. 658, 40 S.W. (2d) 1074; Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W. (2d) 447; State ex rel. v. Terte, 23 S.W. (2d) 120. (4) Provisions in regard to the probate of a will relate to the administration of estates. McCue v. Perry, 293 Mo. 225. (5) The term "administration" is a comprehensive term involving everything which is done in settlement of an estate, from the original probate of the will, or the letters of application, down to the final settlement, distribution and discharge of the personal representative. Crow v. Hubard, 62 Md. 560; Martin v. Ellerbe's Admr., 70 Ala. 326; 1 Words and Phrases (2d Ser.), sub verb; 1 C.J. 1238 and note. (6) The probate of a will has always been considered to be a part of the process of administration. Atkinson, History of English Testamentary...