State ex rel. Siegel v. Strother, 4

• Decision Date: 09 April 1956
• Docket Number: R,No. 4,No. 45178,4,45178
• Citation: 365 Mo. 861,289 S.W.2d 73
• Parties: STATE of Missouri at the Relation of Lester SIEGEL, Sr., David L. Sheffrey and Commerce Trust Company, as Trustees under Trust Agreement of Florence Harzfeld, Deceased, Elise B. Sheffrey, Leah Wolf, Florence Shane, Lester Siegel, Sr., individually, Frieda Siegel, Marjorie Siegel Navran, and Lester Siegel, Jr., Relators, v. Honorable Duvaul P. STROTHER, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Divisionespondent.
• Court: Missouri Supreme Court

Page 73

289 S.W.2d 73

365 Mo. 861

STATE of Missouri at the Relation of Lester SIEGEL, Sr David L. Sheffrey and Commerce Trust Company, as Trustees under Trust Agreement of Florence Harzfeld, Deceased, Elise B. Sheffrey, Leah Wolf, Florence Shane, Lester Siegel, Sr. individually, Frieda Siegel, Marjorie Siegel Navran, and Lester Siegel, Jr., Relators, v. Honorable Duvaul P. STROTHER, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Division No. 4, Respondent.

No. 45178.

Supreme Court of Missouri, en Banc.

April 9, 1956.

John H. Lathrop, Richard S. Righter, Kansas City, for Lester Siegel, Sr., David L. Sheffrey and Commerce Trust Co., Trustees.

Paul Barnett, David Skeer, Kansas City, for David L. Sheffrey, Trustee, and Elise B. Sheffrey, Leah Wolf and Florence Shane.

Herman M. Langworthy, Clyde J. Linde, Kansas City, for Lester Siegel, Sr., Individually, Frieda Siegel, Marjorie Siegel Navran and Lester Siegel, Jr.

Daniel S. Millman, Kansas City, for Honorable Duvaul P. Strother, Judge of the Circuit Court of Jackson County, Missouri, Division No. 4, respondent.

HOLLINGSWORTH, Judge.

This is an original proceeding seeking to prohibit respondent as a Judge of the Circuit Court of Jackson County, at Kansas City, from Proceeding in alleged excess of the jurisdiction of that court to hear and determine in an action brought primarily to contest the will of Florence Harzfeld, deceased, an alternative count in equity to annul an inter vivos trust agreement to which reference is made in the will, and a further alternative count to void the sale of certain corporate stocks made pursuant to the provisions of said trust agreement and for an accounting. Respondent's return to our preliminary rule admitted all facts pleaded in relators' petition, denied the conclusions of law pleaded therein and pleaded and sought discharge of our rule on grounds hereinafter discussed. Relators thereupon filed motion for judgment on the pleadings. The cause was briefed, argued and submitted upon the facts and issues pleaded in the petition and return.

The action out of which this proceeding arose is Cause No. 564,934, in the Circuit Court of Jackson County, at Kansas City, and is entitled 'Leslie Seidenbach et al., plaintiffs, v. Lester Siegel, Sr., David L. Sheffrey and Commerce Trust Company, a corporation, as executors and as trustees under purported last will and testament and purported trust agreement of Florence Harzfeld, deceased, et al., defendants.'

Florence Harzfeld, whose will and trust agreement are in controversy, died on January 17, 1952. On June 24, 1950, she executed an instrument designated as her last will and testament. By the terms of that will, after certain specific bequests, she declared in the residuary clause thereof (Item III):

'All the rest and residue of my property, real, personal, and mixed, I will, devise and bequeath to Commerce Trust Company, Lester Siegel and David L. Sheffrey, all of Kansas City, Jackson County, Missouri, as Trustees under a certain 'Consolidating and Amending Trust Agreement' dated the 12th day of May, 1950, by and between Florence Harzfeld as Grantor and Commerce Trust Company, Lester Siegel and David L. Sheffrey as Trustees, to become a part of the trust estate described in said Consolidating and Amending Trust Agreement and to be held, administered and distributed by them upon and in accordance with all the trusts, terms and conditions set forth in said agreement.'

On March 25, 1952, following trial in the probate court, that court found and adjudged that the purported will of June 24, 1950, and the purported trust agreement of May 12, 1950, 'do constitute the Last Will and Testament of Florence Harzfeld, deceased, and said instruments are hereby allowed and admitted to probate as such Last Will and Testament.'

In the action filed by plaintiffs in the trial court, Count I attacks the will and trust (treating the trust as part of the will) on the ground of fraud and undue influence on the part of two of the relators herein, Lester Siegel, Sr., and David L. Sheffrey. A verdict on this count would hold that said will and trust instrument severally or collectively do or do not constitute the last will of the deceased. This count does not attack the trust as a trust--but only as a will. Count II adopts the charges set forth in Count I and attacks only the will, as such, exclusive of the trust instrument. Count III adopts the charges set forth in Count I and offers for probate an instrument dated December 13, 1951, as the last will of deceased. Count IV offers for probate a codicil thereto, dated December 19, 1951. Both of these instruments were rejected by the probate court. Count V adopts the charges set forth in Count I and, in the alternative, attacks the trust as a trust, seeks cancellation thereof, the voiding of a sale of certain shares of stock made thereunder by the trustees, and demands an accounting of benefits allegedly accruing to Lester Siegel, Sr., pursuant to such action. Count VI likewise adopts the charges of Count I and makes an alternative attack only on the provision of said trust granting to Lester Siegel, Sr., an option to purchase certain corporate stocks, seeking cancellation thereof, the voiding of action taken thereunder by the trustees subsequent to the probate of the will, and demands an accounting of benefits by Siegel.

The relators herein, as defendants in that suit, filed a motion seeking, among other things, a dismissal of Counts V and VI, which are counts in equity, on the ground that Counts I, II, III and IV of the suit are a will contest, and therefore cannot be joined with any other or different kind of action. This motion, as to said two counts, was overruled, and in the order overruling the motion, respondent, then being the assignment judge, sent the case back to the general docket.

The trust agreement was executed and acknowledged before a notary public as a trust and not as a will signed, published and declared in the presence of witnesses as required by law for the execution of wills. Its provisions are those of a trust (not a will), reserving the income from corpus to the grantor, Florence Harzfeld, for her life, creating the trustees' rights and limitations, reserving to grantor the right of revocation and right of withdrawal of corpus during her life, providing for liquidation and distribution after her death, and for termination thereafter.

In this court, relators contend that the Circuit Court of Jackson County exceeded and threatens further to act in excess of its jurisdiction by treating Counts V and VI as properly jointed in the same action as Counts I to IV, inclusive, on the grounds that a will contest in the circuit court operates as an appeal from the probate court, that the jurisdiction of the circuit court in such an action is therefore derivative, and that its jurisdiction is limited to the issues authorized by the statute authorizing such contest. Respondent contends that such a will contest is not an appeal from the probate court and, therefore, is not limited by the same rules as an appeal. Thus is presented the essential issue on the merits.

Before consideration of the case on the merits, however, it is necessary that we consider a challenge made by respondent to our jurisdiction. He says: (1) that we have no right to issue and determine an original writ in prohibition in the absence of service of process upon a proper party respondent; (2) that the only proper party respondent is a judge who is exceeding or threatening to exceed his legal jurisdiction; and (3) that respondent is not the proper party respondent since he has no jurisdiction to act further in the cause. Of these in order:

(1). It must be conceded, in fact, we do not understand relators to question that '[a] writ (of prohibition) which is final in form and effect and is granted without any preliminary notice whatever to the prohibited court and parties is void for want of due process.' 42 Am.Jur., Prohibition, Sec. 43, p. 178.

(2) and (3). In support of his contention that the only proper party respondent in prohibition is a judge who is exceeding or threatening to exceed his legal jurisdiction, he cites: State ex rel. Phillips v. Barton, 300 Mo. 76, 254 S.W. 85, 87; State ex rel. Powers v. Rassieur, Mo., 184 S.W. 116, 118, and State ex rel. Stroh v. Klene, 276 Mo. 206, 207 S.W. 496, 497. These cases furnish little aid to respondent in his assertion that this court has not, by the method pursued in this case, acquired jurisdiction over the Circuit Court of Jackson County. The Barton case, supra, merely holds that prohibition lies only against the exercise of judicial power and may not be used to prohibit a ministerial act even if the act be done by a judge pursuant to statute. The Rassieur case, supra, holds that a party litigant is an improper respondent in a prohibition proceeding and that, in the absence of proof, a mere allegation in a petition that the respondent judge was about to put into force a judgment rendered in an election contest while a motion for new trial was pending, which allegation the judge denied, presented no basis for a judgment. The Klene case, supra, has no bearing whatever on the question here involved. It held, as did the Rassieur case, that a party litigant was not a proper party respondent in prohibition and thereupon made absolute its preliminary rule issued against two judges who had presided over litigation pending in a Division of the Circuit Court of St. Louis.

Before passing these cases, however, it is well to note that the Rassieur case, 184 S.W. 116, 117, states: '* * * the writ runs from a court of superior to a court of inferior jurisdiction solely to prevent the inferior court from assuming a jurisdiction it has not, or from exceeding a jurisdiction it has.' And further, loc. cit. 118: '* * * the judge or the tribunal * * * whose action is sought to be halted and annulled...