Thе trial court dismissed plaintiff’s petition on the ground that it had no jurisdiction of the subject matter, and plaintiff has appealed.
On April 12, 1957, Mary Liszewski and Walery Liszewski, husband and wife, exeсuted a joint will which contained the following provision:
“Second: We Walery Liszewski and Mary Liszewski his wife do hereby agree by and between ourselvs [sic] that is [sic] case that onе of us shall depart from his or her life then this last will and testament shall remain unchanged as stаted hereafter.”
Thereafter in the will there was a devise to plaintiff of real estate known as 1849 North Market Street, St. Louis, with the “understanding” that she should pay designated sums of mоney to named children of Walery Liszewski by his previous marriage and to named children of Mary Liszewski by her previous marriage, said sums to “be paid in cash * * * from property 1849 North Market Street.” Mary Liszewski died on April 5, 1959, and on November 21, 1960, Walery Liszewski executed and delivеred to Frank Liszewski, his son, a quitclaim deed to real estate located at 1849 North Mаrket Street, but reserving to himself a life estate.
By her petition plaintiff sought a declaratory judgment “decreeing the joint Will * * * to have been irrevocable by Walery Liszewski * * * frоm and after the date of death of Mary Liszewski,” and she also sought a judgment setting aside thе quitclaim deed to Frank Liszewski.
Each defendant filed a motion to dismiss the petition for failing to state a claim upon which relief could be granted, and each defendаnt also filed a motion to dismiss on the ground that “the court lacks jurisdiction of the subject mаtter in that the Will under which plaintiff, as devisee, claims right and title has not been duly admitted to рrobate.” The latter motions were sustained, and the petition was dismissed with prejudicе. No ruling was made on the motions to dismiss for failure of the petition to state a clаim on the ground that by reason of the ruling on the other motions they had become moоt.
The instrument was not offered for probate after the death of Mary Liszew-ski, and Walеry Liszewski is still living. Therefore, the instrument has no standing as a will, and on the basis of constituting a will it is ineffectual for the purpose of proving title to or the right to possession of real еstate. Section 473.087 RSMo 1959, V.A.M.S.; Wyers v. Arnold,
Plaintiff brought her action as a third party beneficiary under an alleged contract for a declaratory judgment. “Relief by declaratory judgment is sui generis, and while not either strictly legal or equitable, yet its historical affinity is equitable.” Stewart v. Shelton, supra [
Wе do not purport to rule on this appeal or to express an opinion аs to the relief, if any, to which plaintiff is entitled. That is to be determined after a trial of the issues. But, we do rule that the trial court erred in entering judgment dismissing plaintiff’s petition with prejudice on the ground that it had no jurisdiction.
The judgment is reversed and the cause remanded.
PER CURIAM: The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.