Opinion
No. 39097.
November 6, 1944. Rehearing Denied, December 4, 1944.
1. PARTIES: Wills: Will Contest: Devisee not Served: Decree Sustaining Will Valid. A decree sustaining a will is not invalid because of failure to obtain service on a devisee who was not an heir, the decree being favorable to such devisee.
2. TRIAL: Army and Navy: Party in Military Service: Continuance Properly Refused. It was not mandatory under the Soldiers' and Sailors' Civil Relief Act to grant a continuance upon the application of a party in the military service, and the discretion of the court was properly exercised.
3. TRIAL: Attorney and Client: Oral Application for Continuance: Legislator Attorney: Refusal of Continuance not Error. The court acted within his discretion in refusing a continuance. The application was not in writing, and the affidavit of the legislator attorney was not in statutory form.
4. TRIAL: Courts: Judges: St. Louis Circuit Court: Trial Judge not Bound by Rulings of Assignment Judge: Rulings Adopted. The trial judge of the Circuit Court of the City of St. Louis was not bound by the rulings of the assignment judge, but he adopted them.
Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.
AFFIRMED.
Geo. O. Durham, Erwin B. Tucker and B. Sherman Landau for appellant.
(1) The judgment is void for lack of process on or appearance of defendant Elizabeth Hanley. The error appears in the record proper and will be noticed by the court without regard to exceptions. Green v. Terminal Railroad Assn., 211 Mo. 18; Hannibal St. J.R. v. Mahoney, 42 Mo. 467, 109 S.W. 715. (2) The unserved defendant was a necessary party, having a pecuniary interest in the will. Secs. 538, 852, R.S. 1939; 68 C.J. 956, sec. 709; Eddies v. Parke's Extr., 31 Mo. 513; Lilly v. Tobbein, 103 Mo. 489, 15 S.W. 618; Vaile v. Sprague, 179 Mo. 397, 78 S.W. 609; Thomson v. Butler, 136 F.2d 645; Wells v. Wells, 144 Mo. 198, 45 S.W. 1095; Parke v. Smith, 211 S.W. 62; Harper v. Hudgings, 211 S.W. 63. (3) A will contest is sui generis, statutory and in rem. Byrne v. Byrne, 250 Mo. 362, 181 S.W. 391; Ewart v. Dalby, 319 Mo. 108, 55 S.W.2d 428; McCrary v. McMichael, 233 Mo. App. 797, 109 S.W.2d 50; Bradford v. Blossom, 207 Mo. 177, 105 S.W. 289; Campbell v. St. L. Union Trust Co., 346 Mo. 200, 139 S.W.2d 935. (4) The defect of jurisdiction of a party was fatal to the power of the court to enter judgment. Gresham v. Talbott, 31 S.W.2d 766; Wells v. Wells, supra; Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 383. (5) The fact that the trustee appeared in its own behalf did not dispense with the necessity of process on Hanley, a named beneficiary. The beneficiaries have an interest in the will (the res) and the question of necessary parties is determined by the equitable rule that all parties having an interest in the res must be before the court. Eddies v. Parke's Extr., supra, and cases approving rule, supra. (6) The statute (Sec. 850, R.S. 1939) providing that a trustee of an express trust may sue in his own name without joining his beneficiaries does not say he may be sued without joining the beneficiaries. Dillon v. Bates, 39 Mo. 292; Voorhes v. Gamble, 6 Mo. App. 5; Morris v. Hanssen, 336 Mo. 184, 78 S.W.2d 87; 68 C.J. 956, sec. 709. (7) The controversy was not over the possessions of property the subject matter of the trust (even the trustee had only an inchoate equitable title contingent upon its acceptance of the trust and there being a fund to distribute after administration was completed and the will established), but over the existence of the will. The will was the res. Campbell v. St. L.U. Trust Co., 346 Mo. 200. (8) Upon the institution of the contest the will under which the trustee and beneficiary claimed was vacated. Fletcher v. Ringo, 164 S.W.2d 904. (9) The authority of the trustee was derived from the will exclusively in any event. 65 C.J. 578. (10) The powers (and obligations) of the trustee did not arise until the will had been probated (in solemn form) and the estate had been administered and distributed. In re Holmes Estate, 40 S.W.2d 616. (11) The obligation of the trustee and his status as trustee did not arise until the trust was accepted. Brandon v. Carter, 119 Mo. 572, 24 S.W. 1035; F.G. Oxley Stave Co. v. Butler County, 121 Mo. 614, 26 S.W. 367. (12) And prior to accepting the corpus of the trust, the trustee was trustee neither de jure or de facto. Furthermore, the beneficiary had a right to accept or reject, regardless of the will of the trustee. Pullis v. Pullis Bros. Iron Co., 157 Mo. 565, 57 S.W. 1095. (13) Failure of appellant to secure service of alias process did not authorize the proponents to proceed to establish the will without process on a necessary party. Gresham v. Talbott, 31 S.W.2d 766. (14) The court abused its discretion in ignoring the affidavit of Dalton Kinsella, Jr., for a stay under the Soldiers' and Sailors' Civil Relief Act and in forcing the case to trial without an inquiry at which appellant was afforded an opportunity to be heard. Soldiers' Sailors' Civil Relief Act of 1940, 50 U.S.C.A. 521. (15) The court erred in forcing the case to trial under the circumstances that appellant's counsel had been permitted to withdraw, leaving appellant without counsel; erred in inquiring into the motives which might have actuated appellant in thereupon employing Mr. Tucker, a member of the Legislature then in session; erred in overruling the affidavit for a continuance assigning membership in the Legislature as grounds therefor, and erred in refusing Mr. Tucker time to prepare. Sec. 1089, R.S. 1939; State v. Clark, 214 Mo. App. 536, 262 S.W. 413. (16) And erred in refusing Mr. Tucker time to prepare an amended affidavit if the first was defective. The statute is mandatory. The court "shall permit the same to be amended." Sec. 1091, R.S. 1939. (17) Under the circumstances the court in effect deprived appellant of his right to be represented by counsel, contrary to the fixed rule of the common law and to the statutes. Sec. 848, R.S. 1939; 64 C.J. 232, sec. 246. (18) The court rules depriving the court of a trial division of the power, during the trial or on consideration of a motion for a new trial, to review, reverse or modify rulings of the assignment division, for error and making such rulings final, nisi prius, or in the alternative so interpreting said rules, are erroneous and constitute a departure from the accepted and usual course of judicial proceedings, and deprived appellant of his constitutional guaranties of due process of law and equal protection of the law. Mo. Const., Art. II, Sec. 30; U.S. Const., Amend. 14. (19) The privilege of a review of error by the trial court is conferred on litigants generally. Sec. 1168, R.S. 1939. (20) The privilege is calculated to relieve litigants of the hardship of unnecessary appeals. Fruit Supply Co. v. C., B. Q.R. Co., 119 S.W.2d 1010. (21) The errors assigned on appeal contemplate a prior reconsideration and final review by the lower court as a prerequisite to an appeal. Maplegreen R. Co. v. Trust Co., 141 S.W. 621; Anth v. Lehmann, 144 S.W.2d 190. (22) As a result the record comes to this court with a stronger presumption of regularity based upon the assumption of careful reconsideration for error. If reconsideration has not in fact been had, due to the application of rules not applicable to litigants generally, then the application of the rules or the court's interpretation of the rules results in an unreasonable discrimination. Old Colony R. Co. v. Assessors, 309 Mass. 439, 35 N.E.2d 246; Favors v. Randall, 40 F. Supp. 743. (23) Laws to avoid running afoul of the Constitution must operate on all alike and not subject an individual to arbitrary exercise of powers of government. Duncan v. Missouri, 152 U.S. 382, 38 L.Ed. 485; State v. Mason, 78 P.2d 920; Montgomery v. Suttles, 119 Ga. 781, 13 S.E.2d 781; Howard Sports Daily v. Weller, 179 Md. 355, 18 A.2d 210. (24) Discrimination is prohibited by Article II, Section 30, of Missouri Constitution. St. Louis U. Trust Co. v. State, 348 Mo. 725, 155 S.W.2d 107. (25) All must be equal before the law. Chambers v. Florida, 309 U.S. 227, 84 L.Ed. 716. (26) And procedure must affect alike all who are similarly situated and must not discriminate between persons similarly situated. 16 C.J. Sec., p. 1126. (27) The ruling amounted to a disclaimer on the part of the trial judge of his judicial power "(and duty)" to correct procedural error. Landau v. Fred Schmitt Co., 179 S.W.2d 138. (28) The record as a whole indicates that regardless of how that result was brought about, that the proceedings below culminating in a judgment affirming the will, followed by the refusal of the court to review the same, constituted a departure from the accepted and usual course of judicial proceedings contrary to the intendments of the Constitutions of Missouri and of the United States providing for due process and equal protection of the law and contrary to the history and traditions of the common law, made applicable by statute. Sec. 645, R.S. 1939; U.S. Const., Amend. 14; Mo. Const., Art. II, Sec. 30; Rule 35, Sub. 3, Rules of Sup. Court.
Leahy Leahy for respondents William J. Kinsella, Jr., William J. Kinsella, Jr. and John S. Leahy, Executors, Louise Hervey, Frances Hervey, Lessie Hervey, Marjorie M. Kinsella, Elizabeth Kinsella and Jane Kinsella, a minor; Samuel A. Mitchell for respondent Mercantile-Commerce Bank Trust Company, Trustee; Edw. V.P. Schneiderhahn and Bernard J. Hager for respondents St. Stanislaus Seminary and Maryville College of the Sacred Heart.
(1) The judgment is not void for lack of process on Elizabeth Hanley and her non-appearance, as she is not a necessary or indispensable party defendant. She was not a "person interested" who could question the validity of the will because she was not an heir and would not be benefited by setting the will aside. Sec. 538, R.S. 1939; Gruender v. Frank, 267 Mo. 713; State ex rel. Damon v. McQuillin, 246 Mo. 674. (2) She is not a legatee, but the beneficiary of the income of a trust for her life only; neither is she a necessary party. The trustee, Mercantile-Commerce Bank and Trust Company, is the legatee and as such holds the legal title to the trust estate and as such trustee represents her as beneficiary. 24 Words and Phrases, p. 647; Reed v. Home Natl. Bank, 297 Mass. 222, 8 N.E.2d 601; Crawford v. Mound Grove Cemetery Assn., 218 Ill. 399, 75 N.E. 998; 2 Page on Wills (3d Ed.), p. 183, sec. 626; Atwood v. Rhode Island Hospital Trust Co., 275 F. 513; Kischman v. Scott, 166 Mo. 214; American Bible Society v. Price, 115 Ill. 623, 5 N.E. 126. (3) Not being an heir, she would take nothing if the will were set aside, so she has not been injured by the judgment sustaining the will, but has benefited thereby. Under such circumstances a judgment will not be reversed on the theory that she was a necessary party not in court and such objection cannot be made by this appellant. Crescio v. Crescio, 365 Ill. 393, 6 N.E.2d 628; Krzeminski v. Krzeminski, 285 Ill. 113, 120 N.E. 560; Kischman v. Scott, 166 Mo. 214; Secs. 973, 1228, R.S. 1939. (4) The presiding judge in the assignment division did not err in overruling the application of Dalton L. Kinsella, Jr., for a stay of proceedings based on the Soldiers' and Sailors' Civil Relief Act of 1940 because: The granting of such a stay is within the sound discretion of the court, and on the record in this case there was no abuse of this discretion. Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A., Sec. 521 Appendix; Boone v. Lightner, 319 U.S. 561, 87 L.Ed. 1587; State v. Klene, 201 Mo. App. 408, 212 S.W. 55. (5) Dalton L. Kinsella, Jr., is neither a necessary nor indispensable party. He is not a legatee. His only interest is as a contingent beneficiary in the trust created under the seventh clause of the will. An order of dismissal could properly have been entered as to him and the court would have had jurisdiction to proceed. Naylor v. McRuer, 248 Mo. 423; American Bible Society v. Price, 115 Ill. 623, 5 N.E. 126; Kischman v. Scott, 166 Mo. 214. (6) He is not a necessary or indispensable party as his interest is represented by the trustee, which is a legatee and holds legal title to the property. 24 Words and Phrases, p. 647; Reed v. Home Natl. Bank, 297 Mass. 222, 8 N.E.2d 601; Crawford v. Mound Grove Cemetery Assn., 218 Ill. 399, 75 N.E. 998; 2 Page on Wills (3d Ed.), p. 183, sec. 626; Atwood v. Rhode Island Hospital Trust Co., 275 F. 513; American Bible Society v. Price, 115 Ill. 623, 5 N.E. 126. (7) He was properly represented by his guardian ad litem who acted for his best interests in asserting the validity of the will, as had the will been set aside he would have taken nothing. (8) He has not been injured by the judgment but has benefited thereby. Neither he nor his guardian, who are the only persons who could complain, have taken an appeal. Appellant cannot urge this point as it is immaterial to any right of appellant. Crescio v. Crescio, 365 Ill. 393, 6 N.E.2d 628; Krzeminski v. Krzeminski, 285 Ill. 113, 120 N.E. 560; Kischman v. Scott, 166 Mo. 214; Fitzmaurice v. Turney, 214 Mo. 610, 114 S.W. 504; Howell v. Jackson County, 262 Mo. 403, 171 S.W. 342. (9) The presiding judge in the assignment division did not err in overruling the oral motions of plaintiff's counsel, Erwin B. Tucker, for a continuance, because: the granting of a continuance rests in the discretion of the court and every intendment is in favor of its ruling. Hall v. Williams, 330 Mo. 473, 50 S.W.2d 138. (10) The oral motions were wholly insufficient as applications for continuance must by statute be by written motion, accompanied by affidavit unless by consent they be made orally on oath in open court. There was no consent to such in this case. Sec. 1087, R.S. 1939; Key v. Key, 93 S.W.2d 256. (11) The presiding judge in the assignment division did not err in overruling the application for a continuance filed by plaintiff's counsel, Erwin B. Tucker, on the ground he was a member of the Legislature. Said counsel was not "in actual attendance" on a session of the Legislature and the affidavit did not so allege. It could not because he was present in the St. Louis Circuit Court. The affidavit did not allege that the attendance of said counsel at the trial was "necessary to a fair and proper trial." Under our statute these essential allegations are required to be in the affidavit. Sec. 1089, R.S. 1939; State v. Clarke, 214 Mo. App. 536; State v. Myers (Mo.), 179 S.W.2d 72; Burkhardt v. State, 26 S.W.2d 238. (12) The record in this case shows conclusively that said counsel was employed by plaintiff solely for the purpose of obtaining a continuance and the trial court so found. This statute should not thus be abused by delaying the administration of justice. State v. Myers, 179 S.W.2d 72; Zachary v. Overton, 157 S.W.2d 405. (13) This point has been heretofore ruled on adversely to appellant by this court on appellant's petition for a writ of prohibition (See State ex rel. Dalton L. Kinsella v. Sartorius and Killoren, Judges).
Suit by Dalton L. Kinsella, plaintiff, to set aside the will of his deceased sister, Ella Marie Kinsella, on the ground of undue influence and lack of testamentary capacity. From a judgment sustaining the will, plaintiff appeals.
Among others named as defendants were Elizabeth Hanley, beneficiary in the income from property devised to trustees, and the three minor children of plaintiff, contingent beneficiaries in a trust. One of these minors is Dalton L. Kinsella, Jr. The trustees were made defendants and filed answer. A summons for Elizabeth Hanley was returned non est and no alias summons was issued. The minors were served with process and a guardian ad litem appointed and filed answer for them. None of these defendants was an heir of testatrix, her only heirs being her two brothers, the plaintiff, and William J. Kinsella, one of the defendants.
After the filing of the suit by Noah Weinstein as attorney for plaintiff, the proponents of the will twice took the deposition of plaintiff, he being represented each time by attorney B. Sherman Landau. In these depositions, plaintiff testified that he could not remember any word or act of the testatrix which led him to believe that she was of unsound mind or had been unduly influenced in making her will.
The case was filed in the circuit court of the city of St. Louis on March 10, 1943. Judge Sartorius, the assignment judge, set the trial for Monday, June 14, 1943. On the latter date when the case was called Mr. Weinstein made no announcement. Mr. Landau said he was not ready for trial because of being engaged in the trial of another case. On the same day the assignment judge and the guardian ad litem each received a typewritten letter purporting to be signed by defendant, Dalton L. Kinsella, Jr., stating that he was a soldier stationed at Jefferson Barracks; that he did not want the will sustained and that the testatrix was of unsound mind and had been unduly influenced in the making of her will. The letter also contained an affidavit for stay of proceedings under the Soldiers and Sailors Civil Relief Act. Thereupon the assignment judge had a subpoena issued for the notary whose name appeared on the affidavit. This was served on the notary, but she refused to appear. An attachment was issued for her and returned non est. On June 15, Mr. Weinstein appeared in the assignment division and withdrew from the case stating that he had notified his client on the preceding Saturday of his intention to withdraw. The assignment judge had a subpoena served on Dalton L. Kinsella, Jr., and, when he failed to appear, had an attachment issued for him which was returned non est. On the morning of June 16, in the assignment division, Mr. Landau withdrew from the case and plaintiff requested time to employ another attorney. Thereupon Mr. Tucker, an attorney who had been sitting in the court room, stated that he had been consulted by the plaintiff and desired time to confer further with him to determine whether he would represent him. After some colloquy the matter was laid over until two P.M., at which time Mr. Tucker entered his appearance and orally asked a continuance on the ground that he had not had time to prepare the case. On this application being refused, Mr. Tucker filed an affidavit which he had previously prepared asking for a continuance, stating: "that he is a member of the State Legislature, and that the same is in session, and he therefore respectfully requests that all motions and other proceedings of every kind and nature be postponed until after the adjournment of the General Assembly, as provided in Section 1089, Revised Statutes Missouri 1939." This application was also overruled and the case assigned for trial to Division No. 6 presided over by Judge Killoren.
Mr. Tucker appeared in Division No. 6. With him was Mr. Landau, but the latter stated he was not of counsel. Mr. Tucker endeavored to induce Judge Killoren to reconsider the action of Judge Sartorius in refusing a stay under the Soldiers and Sailors Civil Relief Act and in overruling his applications for continuance. This Judge Killoren refused to do, stating that under the circuit court rules he was bound by the rulings of the assignment judge. Mr. Tucker then re-filed his affidavit for continuance and took no further part in the proceedings. A jury was empaneled, the proponents introduced evidence, a verdict was returned and judgment entered establishing the will.
On appeal to this court the abstract and brief of appellant list Geo. O. Durham, Edwin B. Tucker and B. Sherman Landau as attorneys for appellant.
Appellant contends that the judgment is void for lack of service on or appearance of defendant Elizabeth Hanley. [907] This contention must be overruled for the reason that Elizabeth Hanley is not injured by the judgment establishing the will. As she is not an heir she would take nothing if the will be set aside. The establishment of the will gives her a beneficial interest. If she had participated in the trial she could have protected her interest no better than has been done by the judgment. She could not appeal, because not aggrieved, nor does she have such an interest as would authorize her to bring a suit to set aside the will. [State ex rel. v. McQuillin, 246 Mo. 674, 152 S.W. 341.]
Our ruling does not conflict with any authority cited on this point by appellant. True, under our statutes plaintiff must make all beneficiaries named in a will parties to a will contest in order to get a valid judgment setting the will aside. If any beneficiary is not made a party a judgment setting the will aside is invalid not only as to the omitted party, but as to all parties and the question can be raised by any proponent for the first time on appeal. But it does not follow that a judgment sustaining a will is invalid for omission of such a party, nor that a plaintiff can make such an objection for the first time on appeal. In the instant case the record fails to disclose that plaintiff made any further effort to get service on Elizabeth Hanley after the summons for her was returned unserved, nor is it shown that plaintiff requested the trial court for time to bring her into court. Kischman v. Scott, 166 Mo. 214, 65 S.W. 1031, was a will contest in which the trial court overruled plaintiff's application to bring in necessary parties. On appeal we affirmed the judgment in favor of proponents for lack of diligence on the part of plaintiff in bringing in the necessary parties. [166 Mo. l.c. 225.] In the instant case no diligence is shown and no request was made for time to get service on Elizabeth Hanley. Appellant is in no position to ask us to reverse the judgment in her favor.
Cases cited by appellant are distinguishable from the instant case. In Eddie v. Parke's Ex'r., 31 Mo. 513, we affirmed the action of the trial court in sustaining defendants' demurrer to the petition for failure to make all the devisees parties. In Wells v. Wells, 144 Mo. 198, 45 S.W. 1095, the judgment in the trial court set the will aside. On appeal by the proponents we reversed and remanded the case because all the devisees were not made parties. Neither Parke v. Smith (Mo.), 211 S.W. 62, nor Harper v. Hudgins (Mo.), 211 S.W. 63, were will contests. One was a suit to construe a will and for an injunction, the other was to construe a will and partition real estate. Appellant also cites Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 383. That was a will contest in which we reversed and remanded a judgment in favor of proponents for the exclusion of certain evidence, not for defect of parties. In the opinion we called attention to the fact that an omitted devisee should be made a party. That was correct because the case had to be re-tried and, if the next judgment should be against proponents, it could not stand unless all devisees were in court.
Appellant complains of the court's refusal to stay the proceedings on the affidavit of Dalton L. Kinsella, Jr., under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A., 521. That Act provides for a stay "unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service." This language vests some discretion in the court. [Boone v. Lightner, 319 U.S. 561, 87 L.Ed. 1587.] In the instant case this discretion was not abused for Dalton L. Kinsella, Jr., was not an heir. He was financially interested in having the will sustained, not set aside. He was represented by a guardian ad litem, the will was sustained and his interests fully protected.
Appellant contends that the court erred in refusing a continuance. This was a matter resting largely in the court's discretion [Hall v. Williams, 330 Mo. 473, 50 S.W.2d 138] and we think the facts heretofore set out do not indicate an abuse of that discretion. The court was justified in overruling the oral application under Section 1087, Revised Statutes Missouri 1939 [Mo. R.S.A. 1087] which requires the application to be in writing unless the adverse party consents that it be made orally. Mr. Tucker's affidavit as to membership in the general assembly did not comply with Section 1089, Revised Statutes Missouri 1939 [Mo. R.S.A. 1089] in that it failed to state, even substantially, that affiant was in actual attendance in a session of the legislature or that his presence in court was necessary to a fair and proper trial. Appellant claims the court should have permitted the affidavit to be amended, but we do not find any [908] record of a request for permission to amend the affidavit.
Appellant complains of the refusal of the trial judge to reconsider the rulings of the assignment judge. We think appellant is correct in his contention that, notwithstanding the court rules, the trial judge was not bound by the previous rulings of the assignment judge. [Landau v. Schmitt (Mo. App.), 179 S.W.2d 138.] The trial judge had the same judicial power to reverse the rulings of the assignment judge that he would have to reverse his own rulings made at a previous stage of the trial. However, the trial judge by refusing to reconsider the rulings of the assignment judge adopted and made them his own. Then, in overruling the motion for new trial, the trial judge expressly stated that he adopted the rulings of the assignment judge. The rulings are in the record and, whether made by one judge or two, are before us for our consideration.
Finding no prejudicial error, the judgment is affirmed. All concur.