Cole v. SmithCole v. Smith
- Reporters:
- Before:
- Stockard
Plaintiffs have appealed from the judgment of the Circuit Court of the City of St. Louis dismissing their petition to contest the validity of the will of Rose Ott. The will purports to devise to persons other than plaintiffs the title to real estate which in the absence of the will would descend to plaintiffs as heirs at law of the testator. For this reason title to real estate is involved. Board of Trustees of Methodist Church v. Welpton, Mo., 284 S.W.2d 580.
Two church organizations and nine individuals were named in the will as beneficiaries and all were made defendants. Apparently personal service was obtained on all the defendants except Della Mason
On April 11, 1962, Alvina Held and Della Mason filed a motion to dismiss the petition pursuant to
Alvina Held and Della Mason were legatees, and were necessary parties to an action to set aside the will. Blatt v. Haile, Mo., 291 S.W.2d 85, 89. Neither was personally served, and apparently no summons directed tо either was ever issued. At least, no non est return was made. Al-vina Held then resided, and for many years had resided, at 5718 Finkman Avenue, St. Louis, Missouri, and she was listed in the St. Louis City Directory and shown to be residing at that address. Della Mason then resided, and fоr many years had resided, at 2231 Brown Road, Overland, St. Louis County, Missouri. She was listed in the telephone book as “Mrs. D. Mason,” and she was also listed in the St. Louis County directory and shown to be residing at the above address. The application for letters testamentary in the estate of Rose Ott on file with the Probate Court of the City of St. Louis, contained the names of Alvina Held and Della Mason as legatees under the will, and the address of each was there shown to be аs above stated. During the sixty day period following the filing of the petition both of these defendants were at their respective places of residence and subject to being personally served. Apparently, the only еffort to locate Alvina Held and Della Mason for purposes of obtaining service on them was made by the secretary of plaintiffs’ counsel at his request. She checked the files in the office where she worked, “chеcked the phone books” and a “street directory.” She also called various persons listed under the name of Mason or Held but did not locate these two defendants. She did not know how many calls she made, but as she said, “it tоtaled probably four days phone calling back and forth because I located numbers and I called, and I would get no answers, and then I would try the next day.” She did not consult the St. Louis City or St. Louis County directories because “we didn’t havе either one of those books in our office,” and she did not check the file in the Probate Court of the City of St. Louis pertaining to the estate of Rose Ott. She “couldn’t say for sure” whether she saw the listing in the telephone directory for “Mrs. D. Mason” because she was “looking for Della Mason.”
The trial court sustained the motion of Alvina Held and Della Mason and dismissed the petition. Appellants assert on this appeal that service by publication is a “separate and permissive” method of obtaining service, Civil Rule 54.08, V.A.M.R.; that the order of publication was made on December 22, 1961, but “the clerk [of the
The right of an interested party to contest a will is statutory and can be exercised оnly as provided by statute. Black v. City National Bank & Trust Company, Mo., 321 S.W.2d 477; State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73; Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935, 129 A.L.R. 316; 57 Am.Jur. Wills § 759. The Legislature has declared the policy of this state to be that a contest of a will admitted to probate shall be expeditiously prosecuted or not at all as еvidenced by the fact that the suit to contest the will must be filed in the circuit court within nine months after the date of the probate thereof and the petitioner must then “proceed diligently to secure and complete serviсe of process as provided by law on all parties defendant.”
Regardless of the evidence to the effect that the addresses of Alvina Held and Della Mason were available to appellants from other sources, the evidence clearly establishes that the names and addresses of Alvina Held and Della Mason were available to appellants in the file of the estate of Rose Ott in the Probate Court of the City of St. Louis, the court which had admitted to probate the will which appellants sought to contest. In addition, appellants knew or should have known that the file would contain the information necessary to obtain personаl service on these two defendants because Section 473.017 provides that an application for letters testamentary shall state “The names, relationship to decedent, and residence addresses of the surviving spouse and heirs, devisees and legatees of the decedent, if any, * * *.” The failure of counsel to examine that file is unexplained except that the matter apparently was left to the attention of a secretary who did not examine the file. We know that as a practical matter a telephone call to the clerk of the probate court would probably have resulted in obtaining the needed information, but that teleрhone call was not made or attempted. We think that the evidence estab
Appellants say, however, that service by publication is a “separate and permissive” method of obtaining service in a case “affecting a * * * will,” see Civil Rule 54.08, V.A.M.R., which includes a contest thereof, and that the failure to complete the service by publication within the stated period was shown to be for good cause because of the delay on the part of the clerk in making available to the printer a copy of the order of publication. We shall assume that under the facts of this case service by publication was permissive and would have been sufficient if completed within thе sixty days. However, under the circumstances we see no reason to rule that the trial court abused its discretion in dismissing the petition. The clerk was not charged with knowledge that the sixty day period was about to expire so that he had a duty to expedite the execution of a certified copy to be made available to the printer. However, appellants did know or should have known of the time limitation and that the Christmas and new-year seаson was approaching. But, as far as is shown by the record no request was made to the clerk by appellants to expedite the certification of a copy of the order of publication. See State ex rel. and to Use of City of St. Louis v. Priest, 348 Mo. 37, 152 S.W.2d 109, and the comments there made concerning the duties of clerks under such circumstances. More important, however, appellants had two alternative and permissive
methods
of obtaining service, or at least we have assumed so according to their contention, but they selected the method which could not be completed, or at least was not completed, within the prescribed period of time whеn by the exercise of ordinary diligence and care in the prosecution of the suit personal service easily could have been completed within the sixty day period. In doing this they did not proceed diligently to securе and complete service of process within the meaning of
The trial court heard the evidence, passed on the issues of fact, and under the facts and circumstances we cannot rule that it abused its discretion in dismissing the petition. Therefore, the judgment is affirmed.
BOHLING and BARRETT, CC., concur.PER CURIAM.
The foregoing opinion by STOCKARD‘,. C., is adopted as the opinion of the Court.
All of the Judges concur.