Weber v. Strobel

• Decision Date: 02 December 1920
• Docket Number: No. 21454.,21454.
• Citation: 225 S.W. 925
• Parties: WEBER v. STROBEL et al.
• Court: Missouri Supreme Court

225 S.W. 925

WEBER v. STROBEL et al.

No. 21454.

Supreme Court of Missouri, Division No. 1.

December 2, 1920.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

Action by Louis H. Weber against John Strobel and another. From a judgment for defendants, demurrer having been sustained to the petition, plaintiff appeals. Affirmed.

See, also, 194 S. W. 272.

Leahy & Saunders and David Voyles, all of St. Louis, for appellant.

Holland, Rutledge & Lashly, of St. Louis, for respondents.

GOODE, J.

A demurrer having been sustained to the petition to be copied, the plaintiff refused to amend, and, final judgment having been given against him, he appealed to this court.

Omitting the title and signature, the petition is as follows:

"Plaintiff alleges that he is a resident of the city of St. Louis, Mo., and that defendants are husband and wife and residents of said city and state.

"Plaintiff further alleges that on July 13, 1905, while a resident of the city of St. Louis, Mo., William J. Baier died intestate in said city and state, leaving surviving him as his next of kin and heirs at law Johanna Balt, an aunt, Emil Weber, an uncle, Caroline Peters, an aunt, John F. Weber, an uncle, Pauline Schrey, an aunt, and Katie Holbrook, Emil T. Weber, Emma Yaeger, Julius M. Weber, Carrie Schoon, Minnie Schroers, and Rose Biedermann, children of Julius Weber, an uncle, at that time deceased, and plaintiff, an uncle, the said uncles and aunts being brothers and sisters of the deceased mother of said William J. Baier, this plaintiff being legally entitled to one-seventh of any estate left by said William J. Baler.

"Plaintiff further alleges that on July 18, 1905, defendants willfully, maliciously, knowingly, falsely, fraudulently, and intentionally and for the purpose of defrauding the heirs of said William J. Baler caused to be filed in the office of the clerk of the probate court of the city of St. Louis, Mo., a certain forged paper writing purporting to be the last will and testament of said William J. Baler, and by the terms of which forged instrument defendant John Strobel was named the sole executor of the estate of William J. Baier, and both defendants made the sole beneficiaries thereof; that neither defendant John Strobel nor defendant Molly Strobel were related to William 5. Baler by blood or marriage.

"Plaintiff further alleges that on July 18, 1905, defendant John Strobel, pursuant to the fraudulent scheme to deprive the lawful heirs of William J. Baler of their inheritance, and in accordance with the terms of said forged will, applied to the clerk of the probate court of the city of St. Louis for letters testamentary on the estate of said William J. Baler, and was by said clerk granted the said letters, and proceeded to administer the said estate.

"Plaintiff further alleges that on September 5, 1905, he with the other lawful heirs of William J. Baier, deceased, filed a petition in the circuit court of the city of St. Louis, Mo., making these defendants defendants therein, the general nature of which proceeding was to contest the validity of said alleged will on the ground, among others, that the signature to said alleged will `is a forgery.'

"Plaintiff further alleges that on October 11, 1905, defendants filed in the aforesaid court an answer to said petition, in which they allege that the signature `is not a forgery, but is, in fact, the signature of William J. Baier himself, and that they be permitted to prove said will in solemn form.'

"Plaintiff further alleges that on January 12, 1914, at the trial of said cause, the jury returned a verdict that the alleged will was not the last will and testament of William a. Baier, deceased, and the court entered judgment on said verdict, and said verdict of the jury and judgment of the court were on the 10th day of April, 1917, affirmed by the Supreme Court of the state of Missouri.

"Plaintiff further alleges that, if said alleged will of William 5. Baier, deceased, had not been filed and admitted to probate, the estate of William J. Baier, deceased, could have been finally settled during the September term, 1907, of the probate court of the city of St. Louis, Mo., but, by reason of the filing of the said alleged will, the administration was prolonged until the September term, 1917, of the said court, at which time it was finally settled, necessitating expenses and outlays for attorney's fees and costs and charges on behalf of the said estate in the sum of $3,643.48.

"Plaintiff further alleges that in order to properly present to the jury the facts concerning the forgery of the signature of William J. Baler, deceased, he necessarily expended the sum of $1,617.78 for legal services and costs and expenses incident to said litigation.

"Wherefore plaintiff prays judgment against defendants for one-seventh of $3,643.48, plus $1,617.78, or $2,138.27, actual damages, and the sum of $10,000 exemplary damages, and for the costs of this action."

The demurrer was general, and assigned only that the petition did not state facts sufficient to constitute a cause of action against the defendants.

The petition shows the plaintiff seeks to recover two distinct items of expense incurred in contesting the pretended will of Baler, namely, one-seventh of the amount of expenses "for attorney's fees, costs, and charges on behalf of the estate," alleged to have been incurred by the estate of Baier in the contest case, and the further sum of more than $1,600 alleged to have been expended by the plaintiff "in order to properly present to the jury the facts concerning the forgery of the signature of William J. Baier."

[1, 2] For several reasons the plaintiff has no case for the expenses paid by the estate of the deceased in contesting the spurious will. If any one had a right of action for those expenses, it was the administrator of the estate. Presumably, when the contest action was filed, an administrator was appointed to act during the pendency of the action, as the statute required this to be done. 1 R. S. 1909, § 21. Presumably, too, after the judgment that the document proposed as the will of the deceased was not his will, a permanent administrator was appointed, as this would be the regular course of procedure. Whatever right of action may have existed, if any, to recover the disbursement of the estate in that litigation belonged to the administrator, and for aught the petition shows, the sum may have been collected by him. It is true the costs of the proceeding fall properly on the heirs or legatees of the...