State ex rel. Bier v. Bigger

• Decision Date: 07 February 1944
• Docket Number: 38886
• Citation: 178 S.W.2d 347,352 Mo. 502
• 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

352 Mo. 502

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

February 7, 1944

Rehearing Denied March 6, 1944.

Petition dismissed.

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

(1) The amendment 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 A. 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 F. 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 P. 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 Jurisdiction (1943), 8 Mo. Law Review 107. (7) The provisions of the Act having to do with the inheritance tax are properly part of the law of administration. Prior to the adoption of this law the Inheritance Tax Act was placed in the chapter concerning "Administration," Article 21, Chapter 1, R.S. 1919. This was done by the Revision Commission under authority of the Act organizing said Commission. Section 7089, R.S. 1919. Such location of the inheritance tax law in the revised statutes, made it a part of the administration law, so that it could be subsequently amended by reference to the administration code. McCue v. Perry, supra. (8) Nor is the limitation proviso of Section 532 violative of the due process clause of the State or Federal Constitution. No one possesses as a matter of natural right, the power of testamentary disposition. Such power is given by the state as a matter of grace. It may be withheld altogether, and consequently, if it is granted, any sort of a condition may properly be imposed upon its exercise. Wyres v. Arnold, 47 S.W.2d 644, 134 A.L.R. 876. (9) The statutory exception contained in Section 1031, R.S. 1939, cannot, by implication, be read into Section 532 because 1031 has been declared by the Legislature in Section 1033 to be applicable only to the general statutes of limitations existing in the general civil code. State ex rel. State Life Ins. Co. v. Faucett, 163 S.W.2d 592; City of Macon v. Sparrow, 197 Mo.App. 654, 198 S.W. 1139; Ratican v. Terminal R. Assn., 114 F. 666. (10) Nor can this court by an act of judicial legislation read into this special Statute of Limitation an exception not there expressed. The general tendency of the modern cases is opposed to the judicial adoption of exceptions general to limitation statutes in matters which the Legislature has seen fit to leave without exception. Bank of State of Alabama v. Dalton, 9 Howard, 522, 13 L.Ed. 242; McIver v. Ragan, 2 Wheat. 29; Amy v. Watertown, 130 U.S. 320, 32 L.Ed. 955; State ex rel. State Life Ins. Co. v. Faucett, 163 S.W.2d 592; Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149; Parish v. Casner, 282 S.W. 392; Turnmire v. Claybrook, 204 S.W. 178; Thomas v. Murray, 174 Okla. 36, 79 P.2d 1080, 104 A.L.R. 209; Richardson v. Harrison, 36 Mo. 96; Nelson v. Haeberle, 26 Mo.App. 1. (11) The present statute is more than a mere Statute of Limitations. It is a limitation upon jurisdiction. The statute of wills itself creates the right to probate a will which would not exist at common law. Wyres v. Arnold, 147 S.W.2d 644, 134 A.L.R. 876, certiorari denied, 85 L.Ed. 1544. (12) Where a statute creates a right and gives a remedy which would not exist except for the statute, and also imposes a time limit upon the exercise of the remedy, such time limit is alsolutely binding, even though the exercise of the remedy was prevented by fraud or concealment. Bell v. Wabash Ry. Co., 58 F.2d 569; Wichita Falls, etc., R. Co. v. Durham, 120 S.W.2d 803, 120 A.L.R. 1497; Bement v. Grand Rapids, etc., R. Co., 194 Mich. 64, 160 N.W. 424, L.R.A. 1917E, 322; Gauthier v. Santa Fe, 176 Wis. 245, 186 N.W. 619.

OPINION

Clark, J.

Original proceeding in mandamus in this court to compel respondent, judge of the probate court of Marion county, to take jurisdiction of the probate of the alleged last will of Joseph M. Smith, deceased, and to render a decision admitting or rejecting said alleged will to probate. Respondent, waiving issuance and service of our alternative writ, has made return to relator's petition and relator has moved for judgment on the pleadings.

The petition alleges that Joseph M. Smith died on December 17 1941, the owner of property valued at $ 19,000.00, and leaving a duly executed will in which he named relator as executor and residuary legatee. That on ...