Opinion
February 21, 1939.
1. WILLS: Contest: Equity. In an action to contest a will on the ground of mental incapacity and undue influence, where defendants, beneficiaries, filed answer denying the allegations of the petition and urging an equitable counterclaim praying the court to enjoin the prosecution of the contest, a motion to strike out such equitable counterclaim should have been sustained.
2. WILLS: Contest: Remedy at Law. In a will contest for unsoundness of mind and undue influence, defendants, beneficiaries, had a complete and adequate remedy at law. If there was no substantial evidence to support the charges, the trial court was bound to instruct the jury to return a verdict upholding the will.
3. WILLS: Contest: Interested Witnesses. In a will contest it is not necessary in order to sustain a charge of unsound mind and undue influence that no disinterested witness testified for plaintiffs.
The interest of a witness in such case goes to his credibility and the weight of evidence; if there was substantial evidence to support the charges in the petition, plaintiff had a right to have the jury pass upon the question.
4. WILLS: Contest. Where a will contest was filed by the guardian of an insane ward, the motive of the guardian is not material, nor is the fact that collateral kin of the testator agitated the filing of the suit.
In such case where the sufficiency of the petition was not questioned the suit cannot be dismissed without adjudication upon the will.
The filing of such a suit has the effect of vacating the judgment of a probate court admitting the will to probate, leaving the will unproven.
Even a plaintiff who has brought an action to contest a will cannot dismiss the case after issue has been joined.
Appeal from Circuit Court of City of St. Louis. — Hon. O'Neill Ryan, Judge.
REVERSED AND REMANDED.
John S. Leahy, W.W. Henderson and Harry Troll for appellant.
(1) The only pleading authorized to be filed on the part of defendant in a will contest proceeding is either a demurrer or an answer. Originally defendants filed a demurrer to plaintiff's petition, which the court overruled. Sec. 768, R.S. 1929; Smith v. Smith, 37 S.W.2d 904. Defendant's equitable counterclaims do not contain either a denial of the plaintiff's allegations, nor set up new matter tending to defeat the plaintiff's cause of action under the will contest, as is required by the code. Sec. 776, R.S. 1929. (3) A will contest case in Missouri is in the nature of an appeal or review of the finding of the probate court. The probate court in such proceedings having no authority to exercise original equitable jurisdiction, none can be so exercised on review of the proceedings by the circuit court. State ex rel. Baker v. Bird, 253 Mo. 569; State ex rel. v. Guinotte, 156 Mo. 519. The circuit court has authority only to exercise equitable jurisdiction in a plenary proceeding expressly instituted therefor. No such authority is conferred upon it when it exercises appellate jurisdiction on review of findings of the probate court. The will contest, when instituted by a party in interest in the circuit court, vacates the interlocutory judgment of the probate court. Callahan v. Huhlman, 98 S.W.2d 705; State ex rel. Damon v. McQuillin, 246 Mo. 688. The institution of a will contest imposes upon the circuit court the duty of determining the question of will or no will. Benoist v. Murrin, 48 Mo. 51. And no motion can be filed by defendant in such will contest case, setting up other issues than that raised by petition in will contest case. After the institution of a will contest case by a person in interest, such contest cannot be dismissed without an adjudication upon the will. Further, the burden of proving the will is on the proponents (defendants in instant case). Benoist v. Murrin, 58 Mo. 322. (4) Such proceedings are purely statutory and the provisions of the statutes must be strictly complied with. Stowe v. Stowe, 140 Mo. 594. The sole issue in a will contest is whether the paper writing is or is not the last will of the deceased. That issue is for the jury to determine. Lilly v. Tobbein, 103 Mo. 477; Adams v. Kendrick, 11 S.W.2d 16; McCarthy v. First Natl. Bank Trust Co., 30 S.W.2d 19. (5) Any person interested in the probate of any will shall appear within one year after the date of the probate or rejection thereof, by petition to the circuit court of the county, contesting the validity of the will or praying to have the will proved, which has been rejected — and an issue shall be made whether the paper writing produced be the will of the deceased or not, which shall be tried by a jury, or if either party waive a jury, by the court. Sec. 537, R.S. 1929; Teckenbrock v. McLoughlin, 246 Mo. 711. (6) The jurisdiction which the circuit court acquires in a will contest is derivative and not original. It occupies the same position as an appeal from the probate court, in which the circuit court can only exercise such jurisdiction as the probate court had in the trial of the case below. Callahan v. Huhlman, 98 S.W.2d 705; State ex rel. v. Guinnotte, 156 Mo. 519; State ex rel. v. Bird, 253 Mo. 581; Johnson v. Brewn, 277 Mo. 392; Hyde v. Parks, 283 S.W. 727.
Jacob M. and Arthur V. Lashly for Yale College.
(1) Because a defendant in a suit at law is authorized by statute and judicial decision to plead an equitable counterclaim praying for affirmative relief where (as here) the relief, if granted, will extinguish plaintiff's suit and conclude the cause, and the orderly way to try the cause is for the trial court to first dispose of the issues invoked by the equitable counterclaim. Allen v. Logan, 96 Mo. 591, 10 S.W. 149; O'Day v. Conn, 131 Mo. 321, 32 S.W. 1109; Lewis v. Rhodes, 150 Mo. 498, 52 S.W. 11; Martin v. Turnbaugh, 153 Mo. 172, 54 S.W. 515; Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S.W. 1007; Colburn v. Kreming, 220 S.W. 934; Keltner v. Threlkel, 316 Mo. 609, 291 S.W. 462; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Babcock v. Rieger, 332 Mo. 528, 58 S.W.2d 722; Beckmann v. Beckmann, 51 S.W.2d 136; R.S. 1929, sec. 776. (2) Because defendant-respondent's equitable counterclaim complied with the provisions of the statute expressly authorizing a defendant to incorporate into his answer by way of a counterclaim new matter where, as here, the new matter alleged avoids plaintiff's alleged cause of action and right to sue. Dwyer v. Rohan, 99 Mo. App. 120, 73 S.W. 384; Ellyson v. Mo. P. L. Co., 59 S.W.2d 714; In re Connor's Estate, 254 Mo. 65, 162 S.W. 252; Primeau v. Primeau, 317 Mo. 828, 297 S.W. 382. (3) Because the circuit court had authority to exercise "equitable" jurisdiction to determine the issues invoked by defendant-respondent's equitable counterclaim. Eddie v. Greene, 31 Mo. 513; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618. (4) The probate court order or judgment of July 16, 1932, purporting to grant plaintiff-appellant discretionary power to institute a suit to contest the will of Hugh Campbell, deceased, was not res judicata of the issues tendered by respondent's counterclaim because respondent (a) was not a party to the proceeding in which the order was made and entered; (b) was not served with process or otherwise notified of the proceeding upon which said order is founded; (c) the issues invoked by respondent's counterclaim were not raised or determined in the proceedings upon which the probate court order is predicated. Overshiner v. Britton, 169 Mo. 341, 69 S.W. 17; Henderson's Admr. v. Henderson, 21 Mo. 379; McClure v. Baker, 216 S.W. 1018; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Jasper County v. Wadlow, 82 Mo. 172; Jasper County v. Mickey, 4 S.W. 424; M., K. T. Ry. Co. v. Am. Surety Co., 291 Mo. 92, 236 S.W. 657; Harper v. Hudgins, 211 S.W. 63; Webster v. Kuntz, 22 Colo. App. 111, 123 P. 139; Myers, Admx., v. Brown, 250 Ky. 64, 61 S.W.2d 1052; Johnson v. Knudson, 167 Ind. 429, 79 N.E. 367; Burns v. Baldwin-Doherty Co., 170 A. 511; Davis v. Morgan, 206 Ala. 576, 91 So. 318; Butler Stevens v. Moseley, 14 Ga. App. 288, 80 S.E. 789; Svalina v. Sarvana, 341 Ill. 236, 173 N.E. 281; Mound City Co. v. Castleman, 171 F. 520; Igano Land Min. Co. v. Jones, 65 W. Va. 59, 64 S.E. 640; Civils v. First Natl. Bank, 41 Idaho, 690, 241 P. 1023; 34 C.J., secs. 1411, 1499, pp. 944, 1061.
Daniel N. Kirby and Harry W. Kroeger for St. Louis Union Trust Company and Allen C. Orrick, Executors and Trustees, and Frank H. Fisse for August H. Meyer, August Herman Meyer, Trustee for Adolph Furman, August Herman Meyer, Trustee for Harry Furman and Frank Havinnatti.
(1) The answers and "equitable counterclaims" constitute permissible and proper pleadings in this purported will contest suit. R.S. 1929, sec. 776. It being an essential part of a clause of action to contest a will that the plaintiff have an interest in the probate of a will. Gruender v. Frank, 267 Mo. 718, it was permissible and proper for the defendants in their answers to set up new matter showing that the contestant had no right to maintain the suit. (2) A suit in the form of a will contest, but brought by a person who has no right to contest the will, is not a will contest suit within the meaning of Section 537, Revised Statutes 1929, and may be dismissed without a trial by a jury. State ex rel. Damon v. McQuillin, 246 Mo. 689; Russell v. Nelson, 317 Mo. 152; Smith v. Smith, 327 Mo. 639. (3) Insane people are wards of chancery. All decisions made on behalf of an insane ward are subject to review by a court of equity, and no action taken on his behalf is properly authorized unless proceeding from such free election based upon benefit to the ward, as will bear the scrutiny of equity. In re Estate of Connor, 254 Mo. 76; Primeau v. Primeau, 317 Mo. 833; First Natl. Bank v. MacDonald, 100 Fla. 675; Carey v. Brown, 194 Minn. 127; In re Robinson's Estate, 88 Minn. 404; Harding v. Harding, 140 Ky. 277; In re Hanson's Guardianship, 67 Utah, 256; In re Steenwyck v. Washburn, 59 Wis. 483; 2 Page on Wills (2 Ed.), section 1200.
This is a suit to contest what purports to be the last will and testament of Hugh Campbell, deceased. The suit was filed by Anton Schuler, guardian of the person and estate of Hazlett Kyle Campbell, a non compos mentis. Hazlett Kyle Campbell was a brother of the testator and his sole heir. Except for the will, he would have inherited the entire estate valued at over a million dollars. An answer and an equitable counterclaim were filed by the defendants, who were the beneficiaries of the estate. Upon a hearing on this counterclaim the trial court enjoined the prosecution of the suit to contest the will, and from the judgment entered plaintiff appealed. Plaintiff's petition stated that Hazlett Kyle Campbell was declared to be of unsound mind by the probate court; that Anton Schuler, public administrator of the city of St. Louis, was appointed guardian of the person and estate of said Campbell; that the guardian, on July 16, 1932, obtained, from the probate court, an order authorizing the institution of the suit to contest the will of Hugh Campbell. The petition further alleged that Hugh Campbell died on August 8, 1931; that Hazlett Kyle Campbell was the sole heir at law of the testator. The petition then sets forth what purports to be the will of Hugh Campbell. It is unnecessary to state the various provisions of the will in detail, but by it a number of servants were given substantial amounts in appreciation of many years of service; the sum of $30,000 was left in trust to the defendants, Furmans; the bulk of the estate was directed to be held by the defendants, St. Louis Union Trust Company and Allen C. Orrick, as trustees, the income to be used for the maintenance of the testator's brother, the plaintiff herein; after the death of the plaintiff the entire estate was to be transferred to Yale University for the purpose of erecting a building in memory of the testator's deceased brother, who died many years ago and who was a graduate of that school. The petition then alleged in substance that the defendant, St. Louis Union Trust Company, through its officers and agents, had exercised undue influence over the mind of the testator, and that therefore the purported will was not the will of Hugh Campbell. The petition also charged that Hugh Campbell was, at the time the purported will was alleged to have been executed, of unsound mind. The prayer of the petition asked that an issue be made whether the paper writing, purporting to be the last will and testament of Hugh Campbell, deceased, was his last will.
To this petition the St. Louis Union Trust Company and Allen C. Orrick, trustees under the will, filed what they called an answer and equitable counterclaim. A like answer was filed by Yale University and the other beneficiaries under the will. The trustees in their answer specifically denied that the testator was of unsound mind, or that the St. Louis Union Trust Company, through its officers and agents, exercised undue influence over the mind of the testator. The answer, therefore, directly met the issues presented by the petition. It was also admitted in the answer that plaintiff, Campbell, had been adjudged to be a person of unsound mind; that Anton Schuler had been appointed his guardian; that Schuler, acting in that capacity, obtained an order from the probate court authorizing him to file a suit to contest the validity of the will here in question.
In the counterclaim the defendants appealed to the equitable side of the court to enjoin the prosecution of the will contest suit. In this counterclaim many of the allegations of the petition and the admissions made in the answer were repeated. The facts pleaded, upon which an injunction was sought, were substantially as follows: That a number of the collateral kin, who were not heirs of Hugh Campbell and who were not entitled to maintain a suit to contest his will, after the death of the testator, conceived themselves to be heirs of Hazlett Kyle Campbell and entered into a conspiracy to bring about a judicial adjudication of the mental incapacity of Hazlett Kyle Campbell; that they further conspired to set aside the last will and testament of Hugh Campbell and thus divert his estate from the legatees under the will to the said Hazlett Kyle Campbell, and since he, Hazlett Kyle Campbell, was of unsound mind he would be incapable of transferring the property or of making a valid will, and thus the property, at his death, would pass to the collateral kin. The answer charges that pursuant to this conspiracy, proceedings were instituted whereby Hazlett Kyle Campbell was adjudged insane. We may pause to state here that all parties concerned conceded that Hazlett Kyle Campbell was hopelessly insane and had been so for many years. The answer further charged that Anton Schuler, public administrator, was appointed guardian of the person and estate of Hazlett Kyle Campbell; that at that time Hazlett Kyle Campbell had no estate, but had available, for his support, an income, far in excess of his needs, from a trust estate created for his benefit in the year 1885; that in addition to that there was available, for his support, an income, far in excess of his needs, from the trust estate created for his benefit by the will of Hugh Campbell, the will here in question. The answer charged that the lunacy proceedings were not instituted because of any solicitude for the welfare of Hazlett Kyle Campbell, but as a preliminary step toward the institution of a will contest suit; that the collateral kin attempted to persuade the guardian that Hugh Campbell, the testator, had been unduly influenced in the execution of the purported will and that the testator was insane, but, that the guardian was not convinced and refused to file a suit to contest the will until the collateral kin threatened to sue him on his bond if he refused to file such a suit; that thereupon the guardian filed a petition in the probate court seeking authority to file suit, which petition was granted; that the present suit followed. It is further charged in the answer that the suit was filed because the guardian desired to avoid a suit on his bond and not because of his interest in his ward; that the suit was brought without any disinterested evidence having been laid before the guardian of the mental incapacity of the testator. It is then alleged that the defendants have no adequate remedy at law. This is followed by a prayer for relief. The guardian filed a motion to strike out the so-called equitable counterclaim for the reason, among many others, that the facts stated therein did not constitute a defense. This question was preserved for our review. It is our opinion that the motion to strike out the equitable counterclaim should have been sustained.
The defendants had a complete and adequate remedy at law, which was pleaded by them in their answer, wherein they specifically denied the charge of undue influence and the insanity of the testator. If there is no substantial evidence to support the charges made in the petition, a trial court would be bound, under the law, to instruct a jury to return a verdict upholding the will, and defendants would be the beneficiaries. [3] In this connection we may note that defendants state that plaintiff had no disinterested evidence to support his charges. That was not necessary. The interest a witness has in the result of a trial goes to the witness's credibility and the weight of the evidence, but it does not mean that the facts may not be proven by interested witnesses. If, therefore, on the other hand, there was substantial evidence to support either charge contained in plaintiff's petition, then plaintiff had the right to have a jury pass upon the question. [See Sec. 537, R.S. 1929, Mo. Stat. Ann., p. 326.] The issue of will or no will could have been tried with as little expense and inconvenience as was had at the trial upon the issues raised by the counterclaim. [4] Defendants have taken a peculiar position. By their counterclaim they ask a court of equity to forever enjoin a suit to contest the will under which they claim over one million dollars. In other words they say to the court of equity, even if the will is void, because undue influence was exercised or because the testator was insane at the time it was executed, you give us the estate under this void will, because the guardian of the sole heir, the only person, under the law, who had the right to contest the will, did not have the proper motive in filing the suit. If the charges of the petition cannot be sustained by substantial evidence, then defendants have nothing to fear. If they are true, then defendants have no right to the estate, and certainly a court of equity should not, by its power, vest in the defendants property to which they are not entitled. To do so would result in giving the defendants the property under the will without giving the sole heir under the law an opportunity to be heard upon his claim that the will was void. If Hazlett Kyle Campbell had been sane he could have filed this suit and his motive could not have been questioned. His guardian has filed the suit for him, and no matter what the motive of the guardian may have been, if he is successful the ward will receive the entire estate in lieu of the income therefrom as provided by the will. The fact that the ward had in his own right, or otherwise, ample funds to support himself is beside the question. How can it be said that the ward would not be benefited if he received all of the estate in lieu of the income therefrom? The fact that the collateral kin agitated the filing of the suit is also beside the question. Such facts could not defeat an existing right in the sole heir.
There are other reasons why the issue of will or no will cannot be enjoined under the circumstances of this case. The suit was filed on behalf of the sole heir. He is insisting upon his rights. The sufficiency of the petition to state a cause of action was not questioned. This, under our rulings, required a trial and the trial court, either in equity or in law, could not dismiss plaintiff's suit. Note what this court said in Smith v. Smith, 327 Mo. 632, 37 S.W.2d 902, l.c. 904, 905 (6, 7) (8);
"Moreover, a suit to contest a will, brought by a party in interest, the petition stating a cause of action, cannot be dismissed without an adjudication upon the will. The filing of such suit has the effect of vacating the judgment of the probate court admitting the will to probate, leaving the will unproven unless and until established by the judgment of the circuit court. [State ex rel. Damon et al. v. McQuillin, 246 Mo. 674, 152 S.W. 341, Ann. Cas. 1914B, 526; Hogan v. Hinchey, 195 Mo. 527, 94 S.W. 522; Johnson v. Brewn, 277 Mo. 392, 397, 210 S.W. 55.] . . .
"In this case the court held, by overruling the demurrers, that the petition did state a cause of action, therefore necessarily that it was brought by a party in interest (see Gruender v. Frank, supra), and yet dismissed it upon defendants' motion without adjudicating upon the will or giving plaintiffs opportunity to be heard upon the issue of will or no will.
"It appears to us clear that the court's action was improper and unauthorized."
Even a plaintiff cannot dismiss a will contest suit after issue has been joined. [See McMahon v. McMahon, 100 Mo. 97, 13 S.W. 208; 1 Houts Mo. Pleading Practice, sec. 330.]
Defendants, to sustain their position that a court of equity had the power to enjoin the prosecution of this suit, have cited Primeau v. Primeau, 317 Mo. 828, 297 S.W. 382; In re Connor's Estate, 254 Mo. 65, 162 S.W. 252; In re Hansen's Guardianship, 67 Utah, 256; First National Bank of St. Petersburg v. MacDonald et al., 100 Fla. 675. In each of those cases the question involved was that of a guardian of an insane widow making an election under the statute for the widow to take under the provisions of the will of her husband or to reject the will and take the property given her by the statute. In that class of cases the validity of the will is always conceded. That in itself is a sufficient distinction from the case at bar to render the decisions inapplicable to the question now before us.
The judgment of the trial court is reversed and the cause remanded. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.