Teckenbrock v. McLaughlin
| Decision Date | 21 December 1912 |
| Parties | BRIDGET TECKENBROCK and THEODORE H. TECKENBROCK, her husband, Appellants, v. ANNA McLAUGHLIN et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Matt G. Reynolds Judge.
Affirmed.
Hugh D McCorkle for appellants.
(1) The words "any person interested in the probate of any will" are to be taken in their plain, ordinary and usual sense, and hence, any person who has a direct, legally ascertained and existing pecuniary interest either under the devolution under the will, or descent by operation of law, in the estate of a decedent such as would be impaired or defeated by the establishment or rejection of the will, is a person interested in the probate of the will. Watson v Alderson, 146 Mo. 333; Brooks v. Paine, 90 S.W. 600; Mullins v. Fidelity & Dep. Co., 100 S.W. 256; Bloor v. Platt, 78 Oh. St. 46; State v. Lancaster, 105 S.W. 858; Myers v. Barrows, 3 O. C. D. 52; Rainey v. Ridgeway, 41 So. 632. (2) Curtesy initiate is a present existing vested estate of the husband in the lands of his wife carved out of and subtracted from her title by operation of law, and entirely independent of her title. It attaches (other conditions being present) the moment his wife inherits real estate, not through her, but it is cast upon him by operation of law. Myers v. Hansbrough, 202 Mo. 498; Robards v. Murphy, 64 Mo.App. 90. (3) Hence the husband of an heir at law is "interested" to prevent the probation of a false will that would deprive him of that estate if established. Watson v. Alderson, 146 Mo. 333; Sunderland v. Hood, 13 Mo.App. 232; Wells v. Wells, 144 Mo. 198; Myers v. Barrows, 3 O. C. D. 52. (4) (a) The rule of res adjudicata cannot be applied in this case as against Bridget Teckenbrock. Either the will is the will of Mary McLaughlin or it is not. If it is not, it cannot be held to be her will as to Bridget, and not her will as to Theodore. This proceeding is in the nature of a proceeding in rem, although inter partes, and the whole res must abide the decision, even though fixed upon the motion of but one interested party, provided all parties interested in the res are brought before the court. Wells v. Wells, 144 Mo. 198; Rush v. Rush, 19 Mo. 441; Neeman v. St. Joseph, 126 Mo. 89. (b) And this is the reason that the equity rule, that all persons must be made parties who are materially interested, either legally or beneficially in the subject-matter in suit, in order that a complete decree can be made, and to prevent future litigation and to make it certain that no injustice is done to any person, whether a party or not, interested in the subject-matter, is applied with such strictness, and why it is held that a decree or judgment without these parties before the court, could have no force or effect, and why it is said they must be brought in before the court has a right to try the issue. Eddie v. Parke, 31 Mo. 518; Wells v. Wells, 144 Mo. 198. (5) When matters pleaded in a suit were not pleaded nor brought into contest in a former suit, although within the general scope of the litigation, and might have been determined had they been set up and tried, and even if they be set up but were not actually taken up and given consideration, there is no res adjudicata as to such matters. Spradling v. Conway, 51 Mo. 51; Spurlock v. Railroad, 76 Mo. 67; Lumber Co. v. Mickey, 89 Mo.App. 270. In the former suit of Teckenbrock v. McLaughlin, there were no allegations of a conspiracy by others to concoct the will of Mary McLaughlin for her, nor was any evidence allowed tending to support that issue. Teckenbrock v. McLaughlin, 209 Mo. 533. Hence Bridget Teckenbrock is not estopped to contest the will on that issue in this suit where it is expressly pleaded. (6) A will contest under our statute is a suit inter partes, although in the nature of an action in rem. The judgment only operates against those who are made parties to the suit. In a suit to contest or establish a will, if a party interested in its probate be not made a party to, or actually participated in the suit, he is not bound by the judgment therein, and may still have his action. Eddie v. Parks' Exr., 31 Mo. 513; Kischman v. Scott, 166 Mo. 214; Russell v. Grant, 122 Mo. 180; Hassell v. Wilcox, 120 U.S. 504; Wells v. Wells, 144 Mo. 198; Watson v. Alderson, 146 Mo. 333; Achor v. Sullenger, 137 Mo.App. 372; Vail v. Sprague, 179 Mo. 393. (7) Under our practice where a person cannot "break into" another man's litigation, and where no ancillary actions of review exist, to conclude a "person interested in the probate of a will" without his ever having been made a party to, or given a chance to participate in, or co-operate in the control of, a will contest, by the result of such will contest, is obnoxious to the Constitution of the United States and of Missouri. Art. 5, of Amendments to U. S. Constitution; Constitution of Missouri; Bill of Rights, Sec. 30; Dickey v. Vann, 81 Ala. 430.
Schnurmacher & Rassieur for respondents.
(1) Bridget Teckenbrock cannot recover because she is bound by the judgment in the former suit. The issues were the same -- devisavit vel non. Even the ground for contesting the will was the same -- undue influence. As to her, therefore, the former judgment is res adjudicata. Spratt v. Early, 199 Mo. 501. (2) The husband, Theodore H. Teckenbrock, cannot recover for the following reasons: (a) Because he is in no way interested in the probate of the will. He can have no interest, direct or indirect, present or remote, in the property of the testatrix. He has no rights as tenant by the curtesy initiate, because his wife never was, and never can be, seized of the real estate. Evans v. Morris, 234 Mo. 177; Dozier v. Toalson, 180 Mo. 550; Cox v. Boyce, 152 Mo. 581; Martin v. Trail, 142 Mo. 91; Van Arb v. Thomas, 163 Mo. 41; Ellis v. Kyger, 90 Mo. 600; Carpenter v. Garrett, 75 Va. 129; Jackson v. Johnson, 5 Cowen, 24; Adair v. Lott, 3 Hill (N.Y.), 182; Carr v. Anderson, 6 App.Div. (N.Y.) 6. (b) Because he derives his curtesy through the wife, and, being in privity with her, is barred by the judgment which bars her. (c) Even if he at one time had a right of curtesy initiate, still he could not, because of that interest, institute proceedings to contest his mother-in-law's will. Ligon v. Hawkes, 110 Tenn. 514; Meyer v. Fogg, 7 Fla. 292; Storrs v. Hospital, 180 Ill. 368; In re Brown, 47 Hun, 360; Bank v. Nelson, 3 Head (Tenn.) 634; Bowers v. McGavock, 114 Tenn. 438; In re Rollwagen, 48 How. Pr. (N.Y.) 103. (d) The former judgment is also binding upon the husband, because that judgment fixed the status of the instrument. The husband of an heir at law, though a proper party, is not a necessary party to the proceedings. The judgment is not void. Kischman v. Scott, 166 Mo. 225. (e) The former judgment establishing the will is binding upon all the world, and even if the husband had been a necessary party to the former proceedings, he would still be bound. 16 Ency. Pl. & Pr., pp. 1018, 1061; Bogardus v. Clarke, 4 Paige Ch. Rep. 623; Bonnemort v. Gill, 167 Mass. 338; Crippen v. Dexter, 13 Gray, 330; Tebbatts v. Berry, 10 B. Mon. 475; Redmond v. Collins, 4 Dev. (N.C.) 489; Tompkins v. Tompkins, 1 Story C. C. 547; Scott v. Calvit, 3 How. Rep. (Miss.) 148; Dugan v. Northcutt, 7 App. Cas. D. of C. 351; Wells v. Spraggins, 3 Gratt. 555; McDaniel v. McDaniel, 86 Md. 623. (f) It was his duty to appear and have himself made a party in the former proceedings, if he ever wished to contest the will.
This is a contest of a will.
Appellants are husband and wife and appellant Bridget is the daughter of Mary McLaughlin, who died November 3, 1903, seized of certain realty which, by the terms of the will now assailed, she devised to three other daughters, respondents in this case. This is the second proceeding of the kind. February 8, 1904, Bridget Teckenbrock instituted in her own name a like action to contest the same will, making her three sisters defendants. Undue influence was alleged. That case resulted in a verdict and judgment sustaining the will which judgment the trial court set aside on motion and, on appeal, this court reversed that order and remanded the cause with directions to reinstate the verdict and re-enter the judgment. [Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46.] Subsequently, October 26, 1908, this proceeding was begun in the circuit court of the city of St. Louis, in which court the previous case had been heard, and again undue influence is relied upon. The answer avers, among other things, the rendition of judgment in the former case. Prior to Mary McLaughlin's death issue had been born of the marriage between contestants. On the plea of res judicata and the issue as to the sufficiency of H. Teckenbrock's interest to support a contest, separately submitted by agreement, judgment was given for contestees.
The statute (Sec. 555, R.S. 1909) provides that "any person interested in the probate of any will" may contest its validity in the manner and within the time therein prescribed. In this case the right of H. Teckenbrock to contest is asserted to arise out of the fact he is the husband of a daughter of testatrix and, issue having been born of the marriage, entitled to curtesy in his wife's share in the estate in case of judgment against the will. Any interest Bridget Teckenbrock would have taken in 1903 by descent would have become her separate property by force of the statute then and now in force. Whether a husband's curtesy in such property of his wife is more than an estate for his life after her death contingent upon her failure to sell, is a question not definitely settled in this State (Bank v. Hageluken, 165 Mo. 443, 65...
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