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State ex rel. Bier v. Bigger

Supreme Court of Missouri, Court en Banc
Mar 6, 1944
352 Mo. 502 (Mo. 1944)


disallowing a will not presented for probate within the statute of limitations even though the will was concealed fraudulently

Summary of this case from State ex Rel. Unnerstall v. Berkemeyer


No. 38886.

February 7, 1944. Rehearing Denied, March 6, 1944.

1. CONSTITUTIONAL LAW: Statutes: Wills: Executors and Administrators: Probate of Wills: Statute Valid: Single Subject With Proper Title. The 1921 act which included probate of wills along with administration of estates contained only one subject and had a proper title. And the inclusion of inheritance tax provisions did not render the act invalid.

2. CONSTITUTIONAL LAW: Wills: Limitations of Actions: Executors and Administrators: One Year Limitation on Probate of Wills: Due Process Not Violated. Sec. 532 R.S. 1939, providing a one year limitation on the probate of wills, does not violate due process and is valid.

3. WILLS: Limitations of Actions: Executors and Administrators: Fraudulent Concealment of Will: One Year Limitation Applies. Sec. 532 R.S. 1939, is a special statute of limitation which is exclusive of other statutes of limitation. The one year limitation period therein provided for the probate of a will applies even though the will has been fraudulently concealed by the administrator.



Ben E. Hulse, John L. Plowman and Harry Carstarphen for relator.

(1) The amendment of the section of the section of the statute, which is now Section 532, R.S. 1939, found at 1921 Session Acts, page 110, is unconstitutional because the title is not in conformity with the requirements of the Constitution of Missouri. Mo. Constitution, Sec. 28, Art. 4; Sherrill v. Brantley, 334 Mo. 497, 66 S.W.2d 529; Black's Law Dictionary; State ex rel. United Rys. Co. v. Wiethaupt, 231 Mo. 449; State ex rel. Niedermeyer v. Hackmann, 292 Mo. 27, 237 S.W. 742; State v. Great Western Coffee Tea Co., 171 Mo. 634. (2) Under the laws of the State of Missouri a will cannot be probated in any manner, in any form, or in any court, until it has been through the probate court. The probate court must pass on the questions, and although questions in equity as incidents arise, the machinery of the probate court is held to be adequate. Hans v. Holler, 165 Mo. 47; Canty v. Lehmkuhl, 164 S.W.2d 132; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347; Stowe v. Stowe, 140 Mo. 594; Sec. 847, R.S. 1939. (3) A Statute of Limitations will not be permitted by the courts to become the instrument of fraud, or the means whereby a fraud may be perfected. Deake's Appeal, 12 A. 790, 80 Me. 50; 2 Story on Eq. Jur., sec. 1521; Bailey v. Glover, 21 Wall. 342, 22 L.Ed. 636; 88 U.S. 342; Traer v. Clews, 115 U.S. 528, 6 S.Ct. 155; Quattlebaum v. Busbea, 162 S.W.2d 44; Shainwald v. Davids, 69 F. 687; Foley v. Jones, 52 Mo. 64; Johnson v. United Rys. Co. of St. Louis, 243 Mo. 278, 147 S.W. 1077; Arnold v. Scott, 2 Mo. 13; Texas P.R. Co. v. Gay, 86 Tex. 571, 26 S.W. 599. (4) Limitations may not run in favor of a trustee as against his cestui que trust. McMullen v. Winfield B. L. Assn., 64 Kan. 298, 67 P. 892; 25 C.J. 1118; Foster v. Petree, 347 Mo. 992, 149 S.W.2d 851; In re Thomasson's Estate, 171 S.W.2d 553. (5) If there are any heirs of the deceased Joseph M. Smith, they may not contend that the fraud is that of another and that they are exempt from the consequences of it. A principal having received the benefit of an agent's fraud does not have equity in his favor. 34 Am. Jur. 190, sec. 232. (6) Section 532, R.S. 1939, is not a condition of a right to execute a will. On the contrary, it is merely a Statute of Limitations, a statute of repose. It is procedure, it goes to the remedy. Substantive law concerning a will being apart from the attempted amendment of 1921, the amendment is subjected to construction of limitations and fraud measured by legislative intent and the body of the law on limitations. It was the law before the amendment and the Legislature knew it in 1921. That limitation will not be construed to aid fraudulent concealment. Secs. 532, 4463, R.S. 1939; May Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852; Mo. Constitution, Art. 2, Sec. 30; U.S. Constitution, Amend. Five and Fourteenth Amendment.

Rendlen, White Rendlen, Sam Friedman, Roy Hamlin and Fuller, Fuller Ely for respondent.

(1) The courts indulge the presumption that every statute is constitutional unless the contrary clearly appears and the burden of showing unconstitutionality rests upon the party alleging it. Legal Tender Cases, 12 Wall. 457, 21 L.Ed. 287; Ogden v. Saunders, 12 Wheat. 212, 6 L.Ed. 606; Becker Steel Co. v. Cummings, 296 U.S. 74; 80 L.Ed. 54; Alaska Packers Assn. v. Industrial Accident Comm., 294 U.S. 532, 70 L.Ed. 1044; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194; 79 L.Ed. 281; State ex rel. Barker v. Merchants Exchange, 269 Mo. 346, 190 S.W. 903, Ann. Cas. 1917E, 871; State v. Scullin-Gallagher Iron Steel Co., 268 Mo. 178, 186 S.W. 1007, Ann. Cas. 1918E, 620; Tuberculosis Hospital District v. Peter, 253 Mo. 520, 161 S.W. 1155, Ann. Cas. 1915C, 310; State ex rel. Wiles v. Williams, 232 Mo. 56, 133 S.W. 1, 34 L.R.A. (N.S.) 1000. (2) The title of the Act of 1921 which amended Section 532 by placing the one year limit therein, which Act is found in the Laws of 1921 at page 110, is sufficient, and the amendatory Act does not contain unrelated subjects, so that Section 28 of Article 4 of the Constitution is not violated. The provisions of Section 28 of Article 4 are liberally construed by this court in order to sustain the constitutionality of Acts of the Legislature. Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369; Asel v. City of Jefferson, 287 Mo. 195, 229 S.W. 1046. (3) All that is required by Section 28 of Article 4 is that the different provisions contained in a legislative act fairly relate to the same general subject matter expressed in the title. It is unimportant that some provisions of the Act be not specifically named in the title, or that by refinement of terminology, the subject matter of different sections could be separately catalogued. Massey-Harris Harvester Co. v. Federal Reserve Bank, 340 Mo. 1143, 104 S.W.2d 385; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543; State v. Ward, 328 Mo. 658, 40 S.W.2d 1074; Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447; State ex rel. v. Terte, 23 S.W.2d 120. (4) Provisions in regard to the probate of a will relate to the administration of estates. McCue v. Perry, 293 Mo. 225. (5) The term "administration" is a comprehensive term involving everything which is done in settlement of an estate, from the original probate of the will, or the letters of application, down to the final settlement, distribution and discharge of the personal representative. Crow v. Hubard, 62 Md. 560; Martin v. Ellerbe's Admr., 70 Ala. 326; 1 Words and Phrases (2d Ser.), sub verb; 1 C.J. 1238 and note. (6) The probate of a will has always been considered to be a part of the process of administration. Atkinson, History of English Testamentary Jurisdiction (1943), 8 Mo. Law Review 107. (7) The provisions of the Act having to do with the inheritance tax are properly part of the law of administration. Prior to the adoption of this law the Inheritance Tax Act was placed in the chapter concerning "Administration," Article 21, Chapter 1, R.S. 1919. This was done by the Revision Commission under authority of the Act organizing said Commission. Section 7089, R.S. 1919. Such location of the inheritance tax law in the revised statutes, made it a part of the administration law, so that it could be subsequently amended by reference to the administration code. McCue v. Perry, supra. (8) Nor is the limitation proviso of Section 532 violative of the due process clause of the State or Federal Constitution. No one possesses as a matter of natural right, the power of testamentary disposition. Such power is given by the state as a matter of grace. It may be withheld altogether, and consequently, if it is granted, any sort of a condition may properly be imposed upon its exercise. Wyres v. Arnold, 47 S.W.2d 644, 134 A.L.R. 876. (9) The statutory exception contained in Section 1031, R.S. 1939, cannot, by implication, be read into Section 532 because 1031 has been declared by the Legislature in Section 1033 to be applicable only to the general statutes of limitations existing in the general civil code. State ex rel. State Life Ins. Co. v. Faucett, 163 S.W.2d 592; City of Macon v. Sparrow, 197 Mo. App. 654, 198 S.W. 1139; Ratican v. Terminal R. Assn., 114 F. 666. (10) Nor can this court by an act of judicial legislation read into this special Statute of Limitation an exception not there expressed. The general tendency of the modern cases is opposed to the judicial adoption of exceptions general to limitation statutes in matters which the Legislature has seen fit to leave without exception. Bank of State of Alabama v. Dalton, 9 Howard, 522, 13 L.Ed. 242; McIver v. Ragan, 2 Wheat. 29; Amy v. Watertown, 130 U.S. 320, 32 L.Ed. 955; State ex rel. State Life Ins. Co. v. Faucett, 163 S.W.2d 592; Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149; Parish v. Casner, 282 S.W. 392; Turnmire v. Claybrook, 204 S.W. 178; Thomas v. Murray, 174 Okla. 36, 79 P.2d 1080, 104 A.L.R. 209; Richardson v. Harrison, 36 Mo. 96; Nelson v. Haeberle, 26 Mo. App. 1. (11) The present statute is more than a mere Statute of Limitations. It is a limitation upon jurisdiction. The statute of wills itself creates the right to probate a will which would not exist at common law. Wyres v. Arnold, 147 S.W.2d 644, 134 A.L.R. 876, certiorari denied, 85 L.Ed. 1544. (12) Where a statute creates a right and gives a remedy which would not exist except for the statute, and also imposes a time limit upon the exercise of the remedy, such time limit is alsolutely binding, even though the exercise of the remedy was prevented by fraud or concealment. Bell v. Wabash Ry. Co., 58 F.2d 569; Wichita Falls, etc., R. Co. v. Durham, 120 S.W.2d 803, 120 A.L.R. 1497; Bement v. Grand Rapids, etc., R. Co., 194 Mich. 64, 160 N.W. 424, L.R.A. 1917E, 322; Gauthier v. Santa Fe, 176 Wis. 245, 186 N.W. 619.

Original proceeding in mandamus in this court to compel respondent, judge of the probate court of Marion county, to take jurisdiction of the probate of the alleged last will of Joseph M. Smith, deceased, and to render a decision admitting or rejecting said alleged will to probate. Respondent, waiving issuance and service of our alternative writ, has made return to relator's petition and relator has moved for judgment on the pleadings.

The petition alleges that Joseph M. Smith died on December 17, 1941, the owner of property valued at $19,000.00, and leaving a duly executed will in which he named relator as executor and residuary legatee. That on September 15, 1943, relator filed his application in the probate court and tendered proof of the execution of the will, alleging that one O'Donnell, the undertaker who conducted the burial of Smith, had fraudulently concealed the will, had himself appointed administrator and had embezzled a large portion of the estate. That relator made application for probate of the will as soon as he could do so after discovering its existence. That the probate court found that letters of administration were duly issued to O'Donnell on December 26, 1941, and that notice of the letters was duly published, the first publication being on January 9, 1942. That the probate court held that because the application for probate was made more than one year after notice of letters, under the provisions of Section 532, Revised Statutes Missouri 1939, [Mo. R.S.A., vol. 1, p. 925] the court was without jurisdiction to take proof of the alleged will or to issue a certificate of probate or rejection, and dismissed the application.

Section 532 is as follows:

"When any will is exhibited to be proven, the court, or judge, or clerk thereof in vacation, may immediately receive the proof and grant a certificate of probate, or, if such will be rejected, grant a certificate of rejection: Provided, however, no proof shall be taken of any will nor any certificate of probate thereof issued, unless such will shall have been presented to a probate court, or judge or clerk thereof in vacation, within one year from the date of the first publication of the notice of granting letters testamentary or of administration that may have been granted by any probate court in the state of Missouri, on the estate of the testator or named in such will so presented."

Relator contends: first, that the section is unconstitutional; second, even if the section is valid, it should not be construed to prevent probate of a will that has been fraudulently concealed for more than a [349] year after administration has been granted and notice of letters published.

On the constitutional question, relator's main contention is that the title of the statute as enacted did not meet the requirements of section 28 of article 4 of the state constitution. Relator also says the statute violates the "due process" clauses of the State and Federal Constitutions.

Section 532 was enacted in its present form in 1921 (Session Acts 1921, page 110 and following) by an act entitled: "An Act to repeal sections numbered . . . of chapter one of the Revised Statutes of Missouri, 1919, entitled 'Administration,' and to enact eight new sections in lieu thereof, all relating to the administration of estates," etc.

Section 28 of article 4 of our constitution provides: "No bill . . . shall contain more than one subject, which shall be clearly expressed in the title."

Relator argues that the Act of 1921 contains more than one subject, to wit: (1) administration; (2) proof of wills and limitation thereon; (3) inheritance tax; and that those three subjects cannot logically be included in the term "administration." That probate of wills does not relate to the administration of estates. Relator cites a definition from Black's Law Dictionary, and some Missouri cases which discuss the general subject of constitutional requirements for titles to legislative acts, but do not discuss the precise question now before us.

We see no merit in relator's contention. The probate of wills has long been considered a part of the law of administration by the general assembly and by the courts. Since statehood the same tribunals have had charge of decedents' estates whether the same passed by will or by the statutes of descent, although until 1909 the "administration of estates" and "wills" appeared in the revised statutes as separate articles. Our constitution (section 34 of article 6) vests the probate court with jurisdiction over the granting of letters testamentary as well as of administration. In the 1909 revision session the sections of the statutes relating to wills were by the general assembly classified as a part of the general administration law. In speaking of that change, this court, in the case of McCue v. Peery, 293 Mo. 225, l.c. 232, 238 S.W. 798, said:

"The Legislature had the right to make the above change, and performed its work so intelligently that no one could fail to learn, on the most casual examination the law relating to wills had been changed from its former position as an independent law, and classified as a part of the general Administration law. We are of the opinion that the above change was not only authorized by law, but was a wise one, as the estates created by will are disposed of in the probate courts, like those of minors, insane persons, partnerships, intestate property, etc. As a matter of convenience in legislation it was preferable to have these subjects under the general law relating to the administration of estates and, hence, the Legislature, in 1909, made the above change."

In McCue v. Peery, we considered an act passed by the general assembly in 1917 amending the administration law by reducing the time for filing contests of wills in the circuit court. The title to that act was almost identical with that of the act now under consideration, and its constitutionality was assailed for the same reason now urged in the instant case, except the objection now made in relation to inheritance tax. We held the title of the 1917 act was valid. We adhere to that ruling and hold that it rules the question here.

Even if appellant is correct in his claim that the sections on inheritance tax could not be properly included in an amendment to the law of administration, the law would not be invalidated so far as it relates to the subject of wills, for the sections are separable. However, we do not think appellant is correct in this claim. Jurisdiction to assess and collect the inheritance tax is vested in the probate court, and the tax is a charge against the shares of persons taking from decedents' estates either by will or the laws of descent. The present inheritance tax law was enacted in 1917, and at the next revision session in 1919 the general assembly placed the inheritance tax sections in the same chapter and as a part of the law of "administration." This is a logical arrangement and well within the power of the general assembly. The language heretofore quoted from McCue v. Peery in reference to "wills" is just as applicable to the inclusion of "inheritance tax" in the general subject of "administration."

Relator's contention that Section 532 violates constitutional "due process" was answered [350] in the negative by our opinion in Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644, 134 A.L.R. 876. There we held that the limitation in this section on the time for probating a will is reasonable, basing our conclusion on the premise that there is no natural or inherent right to dispose of property by will; that the state has the power to prohibit such disposition entirely and, of course, has the lesser power to prescribe the time for probating a will. We said: "One of the objects of administration is an orderly settlement of the deceased's affairs and the protection and lawful distribution of his property within a reasonable length of time." The Supreme Court of the United States refused certiorari to review our decision in Wyers v. Arnold.

We hold that Section 532 is constitutional and valid. Even so, relator argues that it should not be so construed as to prevent the probate of a will which has been fraudulently concealed beyond the time limited in the section.

It is unnecessary to review the cases from other jurisdictions cited by relator, for the question must be decided by a consideration of Missouri statutes as construed by our own decisions.

Our general statutes of limitations are contained in articles 8 and 9 of chapter 6 of the revised statutes.

Section 1031, Revised Statutes Missouri 1939, [Mo. R.S.A., vol. 4, p. 239] provides: "If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented."

Section 1033, Revised Statutes Missouri 1939, [Mo. R.S.A., vol. 4, p. 245] provides: "The provisions of articles 8 and 9 of this chapter shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute."

Both sections 1031 and 1033 have been in force in substantially their present form since 1857. In cases involving limitations under articles 8 and 9 of chapter 6 this court has often held that fraud or other improper conduct had the effect of tolling the statute. The same result has been reached in cases under special statutes of limitation which expressly provide for extending the time for certain reasons. All the Missouri cases cited by relator on this point fall within one or the other of these two lines of decisions. In Arnold v. Scott, 2 Mo. 14, the statute contained a proviso that, if any defendant by concealing himself or other means obstruct or defeat the bringing of the action within the time limited, such defendant should not be permitted to avail himself of the benefit of the Act. Foley v. Jones, 52 Mo. 64, l.c. 67, involved the general limitations statutes and was governed by what is now section 1031. In Johnson v. United Railways, 243 Mo. 278, l.c. 295, 147 S.W. 1077, the statute provided that in an action for relief on the ground of fraud, the cause of action would not be deemed to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting fraud. Foster v. Petree, 347 Mo. 992, 149 S.W.2d 851, was decided on the same statute that controlled the decision in Johnson v. United Railways. Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852, is not in point on the question now being considered. In that case we held that the extension of the period of limitation by amendment of a statute would extend an existing cause of action which had not expired at the time of amendment. Relator quotes from our opinion in that case where we said that limitation laws recognize instances of excusable delay. We were speaking of a statute which is expressly made subject to our general statute of limitations, which includes Section 1031, supra.

This court has uniformly held that where a statute of limitations is a special one, not included in the general chapter on limitations, the running thereof cannot be tolled because of fraud, concealment or any other reason not provided in the statute itself. Stowe v. Stowe, 140 Mo. 594, 41 S.W. 951, was a suit in equity alleging that a testator had been fraudulently induced to execute a will and praying that the devisees be declared to hold the property in trust for plaintiff to the extent of his interest as an heir. Plaintiff alleged that he was an infant at the time the will was probated and that he brought the suit as soon as he discovered the fraud, which was more than five years after he attained his majority. The trial court sustained a demurrer to the petition and the case was affirmed by this court, on the ground that the petition showed on its face that the action [351] was barred by the special statute of limitations for contesting a will. That statute provided that a will might be contested within five years after probate, "saving to infants . . . a like period of five years after their respective disabilities are removed." The opinion says: "No other exceptions whatever are engrafted on that statute and it is not the duty or right of the courts to write new provisions into the statute. The infancy of plaintiff does not change the law. The express provision in his behalf of five years excludes all other exceptions. Moreover, it is a special statute of limitations upon the sole topic of wills and their contest and it must be held to be exclusive of other statutes of limitation." See, also, State ex rel. v. Faucett (Mo.), 163 S.W.2d 592 and cases cited.

Section 532 is a special statute limiting the time for probating wills and it does not expressly or impliedly authorize the time to be extended for any reason.

The purpose of such statutes is expressed in one of the earliest of them, 21 James I, chap. 16, "For the quieting of men's estates and the avoiding of suits." In particular cases, this inflexible limitation may seem harsh. If so, the remedy is legislative, not judicial.

Relator's motion for judgment on the pleadings is overruled and his petition dismissed. All concur.

Summaries of

State ex rel. Bier v. Bigger

Supreme Court of Missouri, Court en Banc
Mar 6, 1944
352 Mo. 502 (Mo. 1944)

disallowing a will not presented for probate within the statute of limitations even though the will was concealed fraudulently

Summary of this case from State ex Rel. Unnerstall v. Berkemeyer

disallowing a will not presented for probate within the statute of limitations even though the will was concealed fraudulently

Summary of this case from State ex Rel. Unnerstall v. Berkemeyer

In State ex rel. Bier v. bigger, 352 Mo. 502, 178 S.W.2d 347, this court held that the section in question was a special statute of limitations, not included in the general chapter on limitations, and that the running thereof could not be tolled for any reason, including fraud or concealment.

Summary of this case from State v. Cleaveland

In State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347, the Supreme Court held that the statute which preceded Section 473.050 (in which the period specified was one year) was a special statute of limitations, that the running thereof was not tolled even for fraud or concealment of the will, and that after the lapse of one year from the publication of notice of letters the Probate Court lost jurisdiction to either admit or reject a will from probate.

Summary of this case from In re Estate of Politte
Case details for

State ex rel. Bier v. Bigger

Case Details

Full title:STATE OF MISSOURI at the Relation of HENRY BIER, Relator, v. BYRNE E…

Court:Supreme Court of Missouri, Court en Banc

Date published: Mar 6, 1944


352 Mo. 502 (Mo. 1944)
178 S.W.2d 347

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