Opinion
May 24, 1943.
1. — Appeal and Error — Party Aggrieved — Jurisdiction. Under section 1184, R.S. Mo. 1939, question of whether a party is a party aggrieved within meaning of such statute authorizing an appeal by party aggrieved by judgment in a civil action is jurisdictional and may be raised at any time, even by the court itself.
2. — Appeal and Error — Party Aggrieved — Jurisdiction. An administrator of estates of deceased in his capacity as such is not a party aggrieved within statute and may not appeal from an order of distribution, even though he may have an individual interest in the estate.
3. — Appeal and Error — Party Aggrieved — Jurisdiction. An administratrix de bonis non of estate of insured under war risk insurance policy was not within meaning of statute a "party aggrieved" by judgment of circuit court ordering proceeds of policy paid to administrator with will annexed of estate of insured's widow, beneficiary named in policy, and could not appeal therefrom.
Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.
APPEAL DISMISSED.
W.H.L. Watts for appellant.
(1) The trial court erred in rendering judgment awarding the entire net proceeds of the unconverted war risk insurance policy to respondent instead of to those who were the heirs of the insured as of the date of his death. (a) The will of George P. Whitsett was not in issue in this case: (a-1) First, because the transcript of the probate court proceedings appealed from does not refer to or place the will, or the construction of it in issue. In an appeal from the probate to the circuit court only those matters contained in the transcript may be considered by the circuit court. In re Harr's Estate, 22 S.W.2d 209, 214; Branson v. Branson, 102 Mo. 613, 620; 3 C.J., p. 370, sec. 125. (a-2) Second, because the evidence does not state the existence or contents of a will of George P. Whitsett. An agreement or stipulation of fact must be definite, and a part of the record, and can not be treated as broader or more comprehensive than as shown by the record. Spiro v. St. Louis Transit Co., 109 Mo. App. 1, 84 S.W. 148. (a-3) An unsigned pleading is not evidence. Weik v. Williamson-Gunning Adv. Co., 109 Mo. App. 6, 84 S.W. 144. (2) The court erred in that it tried the case on issues not before the court. (a) The appeal from the probate to the circuit court was from the order of distribution only and not from the allowance of fees or taxing of costs. The judgment of the circuit court fixed allowances of costs. See affidavit for appeal in Probate Court, Abs., p. 51; See Judgment of Circuit Court, Abs., p. 9. (b) The jurisdiction of the circuit court in cases of appeal from the probate court is derivative only and only the action of the probate court actually appealed from can be reviewed. In re Harr's Estate, 22 S.W.2d 209, 214; Branson v. Branson, 102 Mo. 613, 620; 3 C.J. 370, sec. 125; Leahy v. Campbell, 274 Mo. 343, 356. (3) The court erred in its declarations of law. (a) In its first declaration of law the court erroneously treated the will of George P. Whitsett as being in Evidence in the case, and upon that theory construed the meanings and intent of the purported contents of said will. In re Harr's Estate, 22 S.W.2d 209, 214; Branson v. Branson, 102 Mo. 613, 620, 15 S.W. 74; 3 C.J., p. 370, sec. 125; Weik v. Williamson-Gunning Adv. Co., 109 Mo. App. 1, 84 S.W. 148; Leahy v. Campbell, 274 Mo. 343, 356. (b) In its second declaration of law, the court erroneously declared it to be the law that Mabelle Whitsett Wells, administratrix D.B.N., should first pay the costs of administration, including court costs, administratrix' fees and attorneys' fees not to exceed the sum of three hundred dollars, out of the funds in her possession as such administratrix, when the issue of costs, attorneys' fees and administration expense as fixed by the probate court had not been appealed from. The circuit court had no jurisdiction to pass upon or declare the law upon that point. Harr's Estate, 22 S.W.2d 209, 214; Branson v. Branson, 102 Mo. 613, 620, 15 S.W. 74; Leahy v. Campbell, 274 Mo. 343, 356. (c) The second declaration of law given by the circuit court is inconsistent with and in contradiction of the terms of the judgment rendered by the court concurrently with the giving of said second declaration of law, in that it declares the law to be that the administratrix should pay not to exceed the sum of three hundred dollars out of the funds in her possession for costs, administration expense, etc., while the judgment of the court decreed and ordered her to pay the sum of four hundred and fifty dollars out of the funds in her possession for such purposes. (d) The first declaration of law is in direct conflict with the federal war risk insurance act in that it diverts government funds provided by said act for the protection of soldiers and sailors and their dependents within the class permitted by said act, to persons outside of the permitted class. Title 38, U.S.C.A., secs. 511, 512, 514. (e) The court erroneously construed the will in its first declaration of law in that it declared the law to be that a residuary clause in a will drawn in 1905 was intended to bequeath to the donee a property right which the act creating said right made it impossible for her to take, and in that said first declaration found it to be the law that the testator could, by indirection, do what the law would not permit him to do directly and thus defeat the purpose of the act. In re Smith Estate, 141 Misc. 651, 253 N.Y.S. 825; Spomberg v. Lidstrom, 187 Minn. 650, 245 N.W. 636, affirmed on rehearing, 187 Minn. 650, 247 N.W. 679. (f) said first declaration of law fastened upon the testator an intent to do that which was legally impossible since the residuary clause in his will left the fund to his wife and not to her estate, and the war risk prohibited her from taking the fund as commuted. In re Smith Estate, 141 Misc. 651, 253 N.Y.S. 825; Spomberg v. Lindstrom, 187 Minn. 650, 245 N.W. 636, affirmed on rehearing in 187 Minn. 650, 247 N.W. 679; Title 38, U.S.C.A., sec. 514. (g) The court's first declaration of law finds that the testator intended a result based upon the language of the residuary clause only, and unsupported by any evidence, to do an act clearly contrary to sound reason, manifestly absurd and impossible. Such intent can not be presumed. In re Smith's Estate, 141 Misc. 651, 253 N.Y.S. 825; Spomberg v. Lidstrom, 187 Minn. 650, 245 N.W. 636, affirmed on rehearing 187 Minn. 650, 247 N.W. 679. (4) The court erred in that it found that the commuted proceeds of the war risk insurance policy in question was an asset of the testator, subject to testamentary disposition instead of an insurance fund payable to persons, who might be designated by the insured in his insurance application or by will, but who must be persons within the permitted class. Title 38, U.S.C.A., secs. 511, 512 and 514; Butler v. Cantley, Commissioner of Finance of Mo., 226 Mo. App. 1047, 47 S.W.2d 258; Hallbom's Estate, 179 Minn. 402, 229 N.W. 344; State ex rel. Sorrenson v. Bank, 121 Neb. 521, 237 N.W. 620; Hallbom v. Pagel, 172 Minn. 402, 229 N.W. 344; In re Cross's Estate (Wash.), 278 P. 414; Cassarello v. U.S., 271 F. 486; 55 Congressional Record, C.P.T. 8, Oct. 3. 1917, p. 7690; Tax Commission of Ohio v. Rife, 162 N.E. 391, 392; In re Wanzel's Estate, 295 Pa. 419, 145 A. 512. (5) The court erred in holding that George P. Whitsett intended by the general language of a residuary clause to bequeath to his wife an asset which, under the law, at the time the will was executed in 1905 did not exist and which, under the law (The Federal War Risk Insurance Act) enacted twelve years later, she was prohibited from taking. The law is a part of every will and a testator is presumed to have known the law and to have written the will with the law in view. Landon v. Bellam, 258 S.W. 440; Murphy v. Enright, 264 S.W. 813.
Martin J. O'Donnell for respondent.
No brief for respondent.
This is an appeal by Mabelle Whitsett Wells, administratrix, d.b.n., of the estate of George P. Whitsett, deceased, appellant, from a judgment of the circuit court wherein the remaining proceeds of a war risk insurance policy issued on the life of George P. Whitsett, now deceased, was ordered paid by his administratrix, appellant, to James A. Koontz, administrator, with the will annexed, of the estate of Lavinia Ann Whitsett, deceased, widow of George P. Whitsett.
The abstract of the record and the agreed statement of facts filed in this case discloses that:
George P. Whitsett died, testate, in 1924; his estate was administered by Lavinia Ann Whitsett, as executrix, and said administration closed; under the terms of his will his widow was the sole beneficiary thereof; a United States War Risk Insurance policy was issued on the life of George P. Whitsett, during his lifetime, and same was in full force and effect at the time of his death; under the provision of said policy his widow received $57.50 per month therefrom until her death and and effect at the time of his death; under the provisions of said policy the sum of $3886; Lavinia Ann Whitsett died in April, 1938, leaving a will whereby all of her property was devised to her collateral heirs therein named; James A. Koontz is her duly qualified and acting administrator, with will annexed; the probate court of Jackson County, on March 4, 1941, ordered the balance of the proceeds of said insurance policy, after payment of court costs, attorney fees and fees of administratrix, to be distributed as follows:
"A. One-half to James A. Koontz, administrator, with will annexed, of the estate of Lavinia Ann Whitsett;
"B. One-fourth to Mabelle Whitsett Wells, a sister of George P. Whitsett;
"C. One-fourth to Laura Elizabeth Julian Beall, the only child and heir-at-law of Winifred Whitsett Julian, deceased, a sister of George P. Whitsett."
From that order of distribution James A. Koontz, administrator, with will annexed, appealed to the circuit court where, after hearing thereon, a judgment was rendered whereby it was ordered that, after payment of court costs, attorney fees, and fees of administratrix, the balance of said fund of $3886 should be paid to James A. Koontz, administrator.
Following the rendition of said judgment, and after motion for new trial was overruled, the following instrument was timely filed in circuit court:
"Application for Appeal.
"Comes now Mabelle Wells (being the same person described as Mabelle Whitsett Wells) as Administratrix d.b.n. of the estate of George P. Whitsett, deceased, and prays that an appeal be granted and allowed to her, as such Administratrix, to the Kansas City Court of Appeals of Missouri from the judgment, decision and decree of the above entitled Court (and from the findings and declarations of law of said Court handed down with said judgment, decision and decree) rendered in favor of said James A. Koontz, Administrator with the will annexed of the will of Lavinia Ann Whitsett, deceased, and against Mabelle Wells, Administratrix d.b.n. of the estate of George P. Whitsett, deceased, in the above entitled cause, and she does, in support of her prayer for appeal, submit to and file with this Court the annexed affidavit.
"Mabelle Wells, as Administratrix d.b.n. of the Estate of George P. Whitsett, deceased, "By W.H.L. Watts, her Agent and Attorney thereunto duly authorized."
An affidavit, in proper form, in support of the application for appeal, was duly signed, sworn to, and filed as follows:
"Mabelle Wells, as Administratrix d.b.n. of the Estate of George P. Whitsett, deceased, "By W.H.L. Watts, her Agent and Attorney thereunto duly authorized."
Respondent herein, James A. Koontz, administrator, with will annexed, has filed in this court a motion to dismiss the appeal. In support of said motion it is contended that since the appeal is taken by the administratrix d.b.n., and is from an order of distribution affecting the balance of a war risk insurance fund in her hands as administratrix d.b.n., of the estate of George P. Whitsett, the insured, said administratrix, appellant, is not an aggrieved party within the meaning of Section 1184, Revised Statutes Missouri, 1939, authorizing appeals.
The motion was ordered "taken with the case." If it be sustained it necessarily disposes of the case, so far as this appeal is concerned, because the question here raised is jurisdictional" and may be raised at any time, even by the court itself." [Love v. White, 154 S.W.2d 759, l.c. 760.]
The point has been squarely ruled in a late decision by the Supreme Court, en banc, State ex rel. St. Louis Union Trust Company v. Sartorius, 164 S.W.2d 356, l.c. 358. It was there held that an administrator in his capacity as such, may not appeal from an order of distribution, even though he may have an individual interest in the estate; and prior decisions to the contrary were overruled.
Appellant contends that under the above rule the circuit court acquired no jurisdiction to render the judgment appealed from herein for the reason that James A. Koontz, administrator with will annexed, appealed to the circuit court from an order of distribution made by the probate court. That question is not briefed by either party and, since there are some exceptions to the general rule regarding the right of an administrator to appeal, we will not here discuss appellant's contention in this regard. However, it may be observed, in passing, that if, as contended by appellant, the circuit court acquired no jurisdiction on the appeal from probate court, that fact would further support respondent's contention that this court is without jurisdiction to determine this appeal on the merits.
The appeal should be dismissed. Boyer, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The appeal is dismissed. All concur.