Summary
In Odom v. Langston, 355 Mo. 109 195 S.W.2d 463 (1946), plaintiffs, nephews and nieces of the testatrix, brought an action to have the residuary clause of the will ruled void. Plaintiffs appealed from the trial court's dismissal of the action.
Summary of this case from In re Estate of HutchinsOpinion
No. 39583.
June 10, 1946. Rehearing Denied, July 8, 1946.
1. WILLS: Limitations of Actions: Attack on Residuary Clause: Limitations Apply. An action by heirs to have the residuary clause of a will declared void may be barred by limitation.
2. WILLS: Limitations of Actions: Statute Not Tolled by Will Contest. The statute of limitations which applies to an action attacking the residuary clause of a will was not tolled by a statutory will contest action.
3. WILLS: Limitations of Actions: Executors and Administrators: Equitable Conversion of Real Estate: Five Year Statute Applies. Since the will directed that the real estate be converted into cash there was an equitable conversion and the will disposes of personal property only. The ten year statute of limitations has no application, and the action is barred by the five year statute.
Appeal from Hickory Circuit Court. — Hon. C.H. Jackson, Judge.
AFFIRMED.
J.N. Burroughs, Frank B. Williams, and Joe N. Brown for appellants.
(1) There is no statute of limitations as to the right of an heir or one rightfully a distributee to sue to have a will construed, therefore, the appellants, as the heirs of Barsha A. Langston, deceased, filed this action in due time and before it became barred by limitations. Rubey v. Barnett, 12 Mo. 3; Dillon's Administrator v. Bates, 39 Mo. 301; Foster v. Petree, 149 S.W.2d 851; Tincher v. Arnold, 147 F. 665; Stoff v. Schuetze, 240 S.W. 144; Koppel v. Rowland, 4 S.W.2d 816; 69 C.J., p. 881; 4 Page on Wills, p. 616, secs. 1615, 1616. (2) The statute gives the right to anyone interested in an estate as an heir or distributee, to file an action in the circuit court to contest the will of the deceased within one year from the probating of the will in the probate court. Sec. 538, R.S. 1939. (3) While the will remained in force, the proceedings in the probate court were regular, but not final. The contesting of a will in the circuit court operates in the nature of an appeal from the probate to the circuit court. Till the time has elapsed and gone by for proceedings in the circuit court, the will is not conclusively and finally established. Till then the rights of the appellant heirs was not concluded. Tapley v. Abraham McPike, 50 Mo. 589; Hughes v. Burris, 85 Mo. 660. (4) It was in the nature of an appeal, and being so, the probate of the will in common form in the probate court was only provisional, and was not a final judgment, a contest having been filed before the year had elapsed. Tapley v. Abraham McPike, supra; Johnson v. Brewn, 210 S.W. 55; Hughes v. Burris, supra; In re Thomasson's Estate, 171 S.W.2d l.c. 559. (5) The filing of a will contest in the circuit court by the appellants entirely voided its probate in the probate court and it stood as though there was no will, nor had ever been. State ex rel. Hamilton v. Guinotte, 156 Mo. 513; State ex rel. Hampe v. Ittner, 263 S.W. 158, 304 Mo. 135; Byrne v. Byrne, 233 S.W. 461, 289 Mo. 481. (6) And further, the statute of limitations will not be held to bar the action of appellants until the statutory period has elapsed after the cause of action "has come into substantial being and the party asserting it has a right to sue thereon, and sustain the action." Allison v. Mo. Power Co., 59 S.W.2d 771; Cleveland v. Laclede Produce Co., 129 S.W.2d 12. (7) The will contest having been filed within the year, the right of the appellants to file and maintain an action to construe the will was suspended until the will contest had ended and a final judgment upholding the will had been rendered in the cause. Will was not binding till time to file contest has expired. Gebhard v. Lenox Library, 68 A. 540, 74 N.H. 416; Johnson v. Brewn, 210 S.W. 55; Buchanan v. Davis, 43 S.W.2d 279. (8) It is the contention of appellants that in event the statute of limitations could be applied to the present action, it would be the ten-year statute rather than the five-year statute, for the reason, that the petition, the will itself, and the record show that the title of real estate is involved, in that the estate consists principally of real estate. Sec. 1013, R.S. 1939. (9) There is no equitable conversion of the real estate by the terms of the will as contended by the respondents, and furthermore, the trial court was without power or authority to make any finding that called for a construction of the provisions of the will, and that is the only way a finding could have been made that real estate was not involved.
A.W. Landis, Herman Pufahl, Arch A. Johnson, R.L. Hyder, A.D. Scarritt and Elliott H. Jones for respondents.
(1) The statute of limitations applies to a suit to establish an implied or constructive trust. Kerber v. Rowe, 156 S.W.2d 925; Howard County v. Moniteau County, 336 Mo. 295; Hudson v. Cahoon, 193 Mo. 547. (2) The general rule that the statute of limitations may not be invoked in cases which involve express trusts, applies only to suits between cestui que trust and the trustee, and does not apply to a suit by strangers to the trust, on one side, and the trustee and cestui que trust on the other side. Ewing v. Shannahan, 113 Mo. 188; Canada v. Daniel, 175 Mo. App. 55. (3) The statute of limitations cannot be escaped by designating this as an "action to construe will." If the construction of the will is the only object of this suit, it may not be maintained by these collateral heirs, who are strangers to the will. Haugh v. Bokern, 325 Mo. 1143; Clark v. Carter, 200 Mo. 515. (4) The probate of this will related back to the date of the death of the testatrix, and established the fact that this will existed from and after that date. Jones v. Nichols, 280 Mo. l.c. 655; 69 C.J., p. 1226; Wilson v. Wilson, 54 Mo. 213; Bernard v. Bateman, 76 Mo. 414; In re Hoscheid's Estate, 139 P. 61, 79 Wn. 309; Vaught v. Williams, 97 S.E. 737, 177 N.C. 77. (5) The filing of the will contest did not set aside the will, nor revoke the appointment of the executors. State ex rel. v. Holtcamp, 14 S.W.2d 646. (6) The right of action here asserted accrued on May 17, 1938, and the statute of limitations began to run against it as soon as it accrued. Boyd v. Buchanan, 176 Mo. App. 56; 37 C.J., p. 810. (7) Once the statute begins to run it does not cease to run. 1 Wood on Limitations, sec. 6, p. 12; Rogers v. Brown, 61 Mo. 187. (8) The filing of the will contest did not stop the running of limitations against another action, the present action, which had theretofore accrued. 37 C.J., p. 812, sec. 155; p. 1053, sec. 475; Ottenad v. Cemetery Co., 176 S.W.2d 62; Morton v. City of Nevada, 41 F. 587; New Holland, etc., R. Co. v. Ins. Co., 144 Pa. 541, 22 A. 923; Nashville, etc., R. Co. v. Dale, 68 Kan. 108, 74 P. 596. (9) The five-year statute of limitations, Section 1014, R.S. 1939, applies here, because (a) this is a suit upon an implied obligation and (b) is for the recovery of specific personal property. Ricords v. Watkins, 56 Mo. 553; Kerber v. Rowe, 348 Mo. 1131, 156 S.W.2d 925; Hayden v. Thompson, 71 F. 60; Howard Co. v. Moniteau County, 336 Mo. 295; Priest v. Captain, 197 S.W. 83; Kissane v. Brewer, 208 Mo. App. 244; Koyl v. Ley, 194 Mo. App. 291. (10) The will worked a conversion of testatrix's real estate into money, so that this suit involves only personal property. Griffith v. Witten, 252 Mo. 627, 161 S.W. 708; Diebold v. Diebold, 141 S.W.2d 119; Llewellyn v. Llewellyn, 122 Mo. App. 467. (11) Even though it should be held that real estate, as well as personalty, is here involved, this suit became barred by the five-year statute of limitations, in so far as personalty is concerned. Hudson v. Cahoon, 193 Mo. 547.
Action to have the residuary clause of the will of Barsha A. Langston, deceased, ruled void for alleged legal infirmities. The amount involved exceeds $7500. On defendants' motion, and under the facts alleged in the petition, which includes a copy of the will, the trial court dismissed the action as barred by the five year statute of limitations. [Sec. 1014, R.S. Mo. 1939.] Plaintiffs appealed.
In substance the material facts alleged in the petition follow: The validity of the small specific bequests are admitted by the plaintiffs. The beneficiaries under said bequests were not made parties defendant. Plaintiffs are nephews and nieces of the deceased. Under the third clause of the will they are beneficiaries in the sum of one dollar each. Defendants are the executors, beneficiaries under the residuary clause and the trustees under said clause.
The testatrix died on April 8, 1938. The will was probated in common form and the executors qualified on May 17, 1938. On Dec. 26, 1938, plaintiffs filed suit to contest the will. On Oct. 31, 1939, the trial court directed the jury to return a verdict sustaining the will. On appeal, the judgment sustaining the will was reversed and the cause remanded. (Odom v. Langston, 347 Mo. 1201, 152 S.W.2d 124). On a retrial, the jury returned a verdict sustaining the will. Plaintiffs again appealed but dismissed the appeal on Dec. 18, 1943. This suit was filed on April 15, 1944.
Plaintiffs contend that a right of action by an heir or distributee is barred by no statute of limitations. Even so, the plaintiffs are neither heirs nor distributees under the residuary clause of the will. They are strangers to the clause. They seek by this action to have the clause ruled void and thereby become heirs-at-law and entitled to distribution. In other words, it is not an action by an executor or trustee under a will, or by a legatee, devisee or cestui que trust under a will who may sue for a construction of a will without statutory limitations. The word "construe", as used with reference to wills, means to determine the intention of the testator as set forth in an ambiguous but lawful provision of the will. In this action plaintiffs seek no such construction. They challenge the residuary clause as void. If void, there is nothing to construe. This effort of plaintiffs to have the residuary clause ruled void is subject to statutory limitations. Plaintiffs cite cases as follows: Ruby v. Barnett, 12 Mo. 3, l.c. 5; Dillon's Administrator v. Bates, 39 Mo. 292, 301; Foster v. Petree, 347 Mo. 992, 149 S.W.2d 851; Tincher v. Arnold, 147 F. 665; Stoff v. Schuetze, 293 Mo. 635, 240 S.W. 139, 144; Koppel v. Rowland, 319 Mo. 602, 4 S.W.2d 816, l.c. 818; Corpus Juris, Vol. 69, p. 881; Page on Wills, Vol. 4, p. 616, Secs. 1615, 1616. The facts considered and ruled in the citations are not even smiliar to the facts of this case.
It is difficult to understand the next contention of the plaintiffs. We think they contend that the five year statute of limitations is suspended during the year in which interested parties may contest a will. There is no statute so providing and they cite no case so ruling. Of course, a will contest suspends the authority of an executor pending a determination of the contest. Even so, this did not prevent the five year statute of limitations [465] from commencing to run on the probation of the will in common form and appointment of the executors. If so, the limitation continued to run regardless of the institution of the will contest by the plaintiffs. They argue that this action could not have been "maintained" pending the will contest. It could have been continued pending the will contest and thereafter tried or "maintained".
As stated by respondents: "The whole point is that plaintiffs could have brought the present action upon the appointment of executors, on May 17, 1938. And, they could have maintained it to a finish. That being so, the right of action then accrued, and limitation began to run against it. And, the heirs could not stop the running of the statute by bringing a suit on a different cause of action." The contention is overruled. Plaintiffs cite cases as follows: Tapley et al. v. Abraham McPike, 50 Mo. 589; Hughes v. Burriss, 85 Mo. 660-666; Johnson v. Brewn, 277 Mo. 392, 210 S.W. 55; In re Thomasson's Estate, 350 Mo. 1157, 171 S.W.2d l.c. 559, 560; State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S.W. 281; State ex rel. Hampe v. Ittner, 263 S.W. 158, 304 Mo. 135; Byrne v. Bryne, 233 S.W. 461, 289 Mo. 481; Allison v. Missouri Power Co., 59 S.W.2d 771-773; Cleveland v. Laclede Produce Co., 129 S.W.2d 12, 17; Gebhard v. Lenox Library et al., 68 A. 540, 74 N.H. 416; Buchanan v. Davis, 43 S.W.2d 279; Masterson v. Masterson, 344 Mo. 1188, 130 S.W.2d 629.
The cited cases on this contention also are not in point on the facts.
Plaintiffs also contend that the title to real estate is involved and for that reason the action is not barred by limitation for ten years. The testatrix owned both real and personal property at the time of her death. The contention presents the question of whether or not testatrix's will directed the executors to convert the real estate into cash. The rule, as stated by Goode, J., follows:
"Real property is treated in equity as personalty, and the rules governing the latter species of property applied to it in order to carry out the intention and terms of a will, in several contingencies; when there is a positive direction to the executor to sell the real property, or a necessity to sell in order to distribute legacies in the will or comply with its other terms, or when there is such a blending of the real and the personal estate by the terms of the will, as to show the testator intended to create a common fund out of both species of property and bequeath it or its income as money. [Hunt's Appeal, 105 Pa. 128, 141.] In either of those instances equity will treat the real property as personalty from the death of the testator; and all of them existed in the present case." [Llewellyn v. Llewellyn, 122 Mo. App. 467, 99 S.W. 809.]
The clause of the will with reference to this question follows:
"Ninth. I authorize my executors, with all convenient speed, after my demise, to convert my estate both real and personal, into cash, they, or either of them, being hereby authorized and empowered to grant, bargain, sell, alien and convey, and on such terms and conditions as may seem proper, all of my real estate wherever situated, and to execute contracts, deeds or any other instrument, or instruments of conveyance necessary for the proper transfer and conveyance of title in fee simple."
We think the ninth clause is a positive direction to the executors to convert the real and personal property into cash with "all convenient speed". Furthermore, a consideration of the will from its corners clearly shows an intention of the testatrix to distribute the remainder in cash on the termination of the trust. It follows that the conversion became effective on the death of the testatrix, and the will disposes of personal property only. On this contention plaintiffs cite White v. Greenway, 274 S.W. 486, and Ganahl v. Ganahl, 323 Mo. 620, 19 S.W.2d 898, 901. These cases are distinguishable on the facts.
In this connection plaintiffs argue that the trial court was without authority to rule the question of equitable conversion of the real estate. The trial court could [466] not have determined the applicable statute of limitations without considering the question of equitable conversion.
The judgment should be affirmed. It is so ordered. All concur.