Stockstrom v. Jacoby

• Decision Date: 27 June 1989
• Docket Number: No. 55588,55588
• Citation: 775 S.W.2d 300
• Parties: Charles T. STOCKSTROM, Plaintiff-Respondent, v. Richard C. JACOBY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 300

775 S.W.2d 300

Charles T. STOCKSTROM, Plaintiff-Respondent, v. Richard C. JACOBY, Defendant-Appellant.

No. 55588.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 27, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Aug. 1, 1989.

Application to Transfer Denied Sept. 12, 1989.

Benson Cytron, House Springs, for defendant-appellant.

E. Fairfax Jones, Biggs & Hensley, St. Louis, Stanley David Schnaare, Anderson, Hammon, Dieffenbach & Schnaare, Hillsboro, for plaintiff-respondent.

SMITH, Presiding Judge.

Defendant, Richard Jacoby, appeals from a judgment following jury verdict finding that a will of Gertrude Stockstrom dated June 4, 1986 was her last will and testament. We affirm.

Gertrude Stockstrom died April 24, 1987. She left surviving a son, Charles L. Stockstrom, his two sons, Gary Stockstrom and Charles T. Stockstrom, and another grandson, Richard Jacoby, son of a deceased child. She also left three wills. The most recent, dated July 10, 1986, left the residue of her substantial estate 50% to Jacoby, 20% to her son, and 15% each to her Stockstrom grandsons. The will contained an in terrorem clause providing that if any beneficiary challenged the will "directly or indirectly" he forfeited the bequest made to him.

A prior will, dated June 4, 1986 provided for a distribution of $30,000 each to her son and Jacoby and the residue to be divided 25% to each of her four surviving descendants. An earlier will of August 6, 1985, provided for a distribution of 25% to each of her four surviving descendants. Neither of these wills contained an in terrorem clause.

The July 10 will was admitted to probate and the two prior wills were rejected for probate. On May 4, 1987, Charles T. Stockstrom filed a petition to contest the July 10 will. He named as defendants his father and brother and Jacoby. That petition contained no reference to the two prior wills and sought as relief a determination that the July 10 will was not Gertrude's last will and testament. Service on Jacoby was immediately obtained. On June 15, 1987, the Stockstrom defendants, pro se, entered their appearances, waived service of process and consented to a trial at the convenience of the court. Jacoby filed an answer on July 2.

On July 31, 1987, plaintiff Stockstrom filed his first amended petition and petition to establish alternatively the two rejected wills of Gertrude. Service of the amended petition was made by mail upon Jacoby's attorney and by mail to each of the Stockstrom defendants at their home addresses. Jacoby filed an answer on August 25 and an amended answer on December 7. On January 12, 1988, Jacoby filed a motion to dismiss for failure to serve the Stockstrom defendants. Those defendants filed affidavits on January 24 acknowledging receipt of the First Amended Petition on August 7, 1987 and again waiving service and consenting to a hearing of the matter at the convenience of the court. Neither Stockstrom defendant ever filed an answer to either petition. Jacoby's motion to dismiss was denied and that denial forms the sole issue on appeal.

Jacoby's position is as follows. Plaintiff was not an heir of Gertrude because his father was living at her death. He therefore had no interest in her estate if she died intestate. His original petition did not seek rejection of the July 10 will and the acceptance of either of the two earlier wills of which he was a beneficiary. It sought only a rejection of the July 10 will and if successful would create an intestacy. Therefore, Jacoby contends, plaintiff had no standing to file the original petition and it was a nullity. Service or waiver of service thereunder would also be a nullity. The amended petition therefore became the original proceeding in this matter. No personal service of that petition was made on the Stockstrom defendants and no waiver of that service occurred within 90 days of the filing of the amended petition as required by Sec. 473.083.6 RSMo 1986. Thus the trial court was required to dismiss the petition.

Jacoby also contends that the Stockstrom defendants were in default under the original petition. This is based on the argument that the amended petition sought new or additional claims for relief against those defendants in requesting acceptance of either of the two prior wills. Under Rule 43.01 as it then existed ¹ service upon the Stockstrom defendants was required in the manner provided for service of summons. Even if, therefore, the relief sought in the original petition was properly before the court, service of the additional claims was not timely obtained and the court lacked jurisdiction over the additional claims. The judgment and the jury verdict were based upon one of the additional claims in that it approved the June 4 will for probate after rejection of the July 10 will. In the absence of the additional claims seeking approval of either of the prior wills the estate would pass by intestacy in which case Jacoby would be entitled to 50% and Charles L. Stockstrom would be entitled to the other 50%.

The foundation of this duplex is that the original petition was a nullity. In Jensen v. Hinderks, 338 Mo. 459, 92 S.W.2d 108 (1936) the Court dealt with the identical issue. There a widow filed a petition contesting her husband's will. She had an interest in his estate but no direct pecuniary interest in the probate of the will because she would take the same share by intestacy as was provided by the will. Her petition stated no interest in the probate of the will and therefore stated no cause of action and a demurrer was properly sustained. She then sought leave to amend which was...