Ervin A. HAAS, Appellant, v. Albert P. HAAS et al., Respondents.
No. 57665.
Supreme Court of Missouri, Division No. 1.
Dec. 10, 1973.
Motion for Rehearing or to Transfer to Court en Banc Denied Jan. 14, 1974.
HIGGINS, Commissioner.
Ramon J. Morganstern, M. Harvey Pines, Schramm & Morganstern, Clayton, for appellant. Martin M. Lipsitz, Friedman & Fredericks, Clayton, for respondents.
In order to properly review this point we have requested and have received a copy of the police report. We have carefully studied the report and have compared it with the testimony of the witnesses. We have decided that we need not determine the technical question as to whether or not the court erred in failing to require that a copy of the report be shown to defendant‘s counsel. This for the reason that we have concluded that the report would not have been helpful to counsel in presenting his defense, and hence no prejudice resulted from his failure to obtain it.
The description in the report of one of the robbers was “Male, Negro, age 19-20, height 5‘9“, black hair, brown eyes, medium build, dark complexion, and dark clothing.” The other was described exactly the same except his height was given as 5‘10“. These descriptions are not inconsistent with those given by Sandra in her testimony. The account of the occurrence given to the officers by Sandra and Coleman, as shown by the report, was in accord with their testimony at the trial. We also find nothing in the report relating to the arrest and identification of defendant that would have aided his attorney. Other items in the report would have been detrimental to defendant, such as, for example, that the car in which defendant was arrested was a stolen automobile.
As heretofore indicated, the trial court reviewed the report and obviously concluded that it would not have been useful to defendant‘s counsel and we agree with that conclusion. Since the defendant was not prejudiced by the rulings of the court, no basis for reversal in that respect is shown.
The judgment is affirmed.
All concur.
Appeal from dismissal of plaintiff‘s petition to contest will asserting denial of due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and the presence of questions involving construction of the Constitutions of the United States and of Missouri.
Ervin Frank Haas died testate April 22, 1970, survived by his son, plaintiff Ervin A. Haas, his brother, Albert P. Haas, and his sisters, Ann Martin, Emmie Schrempp, Erma Good, and Augusta Wolf.
On May 1, 1970, a writing purporting to be the last will and testament of Ervin Frank Haas, deceased, naming defendants Albert P. Haas and Melvin Friedman coexecutors, bequeathing $1.00 to plaintiff, stating plaintiff was not testator‘s son, and distributing the balance of decedent‘s estate to some thirty-two other beneficiaries, including defendant Shriners’ Hospital for Crippled Children, was admitted to probate in the Probate Court of St. Louis County, Missouri.
Schedule B of the Application for Letters Testamentary filed May 1, 1970, by the coexecutors named the beneficiaries, including “Ervin A. Haas, son of decedent [sic] former wife, now deceased, address unknown. Last known confined to Federal Prison.”
Letters Testamentary were issued to the coexecutors May 1, 1970; the first publication of notice to creditors was on May 6, 1970; and the proof of publication of the notice was filed May 27, 1970. A stamped unmailed post card addressed to Ervin A. Haas, “address unknown,” in the form of the notice of issuance of letters testamentary, was in the probate file.
On October 5, 1971, plaintiff filed his petition to contest the will of Ervin Frank Haas, deceased. Among other things, plaintiff alleged he “was not given proper notice that an estate had been opened for his father“; that coexecutor Albert P. Haas “knew that plaintiff was in Leavenworth penitentiary in Kansas“; and “that plaintiff was entitled to notice reasonably calculated to apprise him of the pendency of the Probate proceeding.”
Upon these facts and circumstances defendant Shriners’ Hospital moved for dismissal of plaintiff‘s petition on the ground that
After hearing, including evidence, arguments, and briefs, the court sustained the coexecutors’ motion to dismiss, ordered plaintiff‘s petition dismissed with prejudice, and designated the order of dismissal a final order for purpose of appeal.
Appellant contends the court erred “for the reason that the notice to appellant that an estate had been opened for Ervin Frank Haas * * * pursuant to
The question thus posed is whether the coexecutors’ failure to more adequately advise the probate court of plaintiff‘s whereabouts in their application for letters testamentary under
The difficulty in appellant‘s position is that
As acknowledged by appellant,
Black v. City National Bank and Trust Company, 321 S.W.2d 477 (Mo.1959), applied the foregoing in affirming dismissal of a will contest in similar circumstances. Plaintiff was a prisoner in Texas and brought suit to contest his uncle‘s will. The suit was filed after the time provided by the applicable statutes, Sections 468.580 and 468.600, RSMo 1949, V.A.M.S. c. 475 Appendix. The court treated the statutory period as a special statute of limitations “within the precise terms of
There is no question that plaintiff failed to file his contest within the time prescribed by
Judgment affirmed.
WELBORN, C., concurs.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.
BARDGETT, P. J., and HOLMAN, J., concur.
SEILER, J., concurs in result in separate concurring opinion filed.
SEILER, Judge (concurring).
As I understand appellant‘s claim he contends the statutes under which the probate proceedings were commenced violate due process and are unconstitutional because they do not require executors to exercise due diligence in notifying heirs, legatees and devisees, but are satisfied with only an indifferent effort on the part of the executors. Here, for instance, although the executors presumably could easily have obtained appellant‘s exact address, they did no more than to say he was in federal prison and gave him notice only by publication. Appellant thus is contending that the procedure followed was insufficient even to confer jurisdiction on the probate court to open the estate and, of course, if appellant is correct in this, the mere passage of six months of time would not serve to cut off his rights despite
The fourteenth amendment of the U.S. Constitution provides that a person may not be deprived of life, liberty or property without due process of law. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections * * *. The notice must be of such nature as reasonable to convey the required information, * * * and it must afford a reasonable time for those interested to make their appearance * * *.” Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L.Ed. 865 (1949).
Missouri cases agree that due process sometimes requires more notice than is required by a statute. See State ex rel. Deems v. Holtcamp, 245 Mo. 655, 151 S.W. 153 (1912); Clapper v. Chandler, 406 S.W.2d 114 (Mo.App.1966). And see Maus, Missouri Practice, Probate Law and Practice, Vol. 3, Sec. 514.
Appellant‘s argument that due diligence in giving notice is essential to due process is the gist of the Mullane decision and would logically seem applicable to probate proceedings. A due diligence requirement would not put a heavy burden on executors nor would it thwart the state‘s interest in the final settlement of estates, but it would further protect the rights of persons with an interest affected by probate of the will. In this case, for example, it would have required no more than an inquiry by the probate judge as to what efforts the executor had made to locate appellant‘s address. If
However, courts of other states have not applied the due process language of Mullane to the notice requirements of probate proceedings. In addition other decisions of the Supreme Court give support to the validity of the notice requirements of our probate code. The court has held that an ex parte probate followed by a one-year period for contest affords due process of law. Farrell v. O‘Brien, 199 U.S. 89, 25 S.Ct. 727, 50 L.Ed. 101 (1905). And the Supreme Court has construed the due process provisions of the fourteenth amendment not to overturn aged practices. See Ownbey v. Morgan, et al., Executors of Morgan, 256 U.S. 94, 110, 41 S.Ct. 433, 65 L.Ed. 837 (1921), [although doubt may be cast on this by some of the language in Fuentes v. Shevin, 407 U.S. 67, 91-92, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)] and cases cited in “Probate Proceedings—Administration of Decedent‘s Estates—The Mullane Case and Due Process of Law“, 50 Mich.L.Rev. 124 (1952). It is for this reason I concur in the result of the opinion written by Higgins, C.
It should be noted, however, that the concept of due process has changed considerably since 1905 and courts today do not look with favor on ex parte proceedings which affect property rights. See e. g., Fuentes v. Shevin, supra: B-W Acceptance Corporation v. Alexander, 494 S.W.2d 75 (Mo. banc 1973); and State ex rel. Williams v. Berrey, 492 S.W.2d 731 (Mo. banc 1973). The subject of whether our probate statutes should be amended to require executors to exercise due diligence in giving notice would seem, therefore, to be deserving of legislative attention. Even in the absence of more precise statutory requirements, careful executors will no doubt take pains to exercise due diligence in giving notice to interested parties. See annot. Duty and Liability of Executor with Respect to Locating and Noticing Legatees, Devisees, or Heirs, 10 A.L.R.3d 547.