Kreisel v. Wischmeier

813 S.W.2d 346, 1991 Mo. App. LEXIS 1123, 1991 WL 132358
CourtMissouri Court of Appeals
DecidedJuly 23, 1991
DocketNo. WD 43710
StatusPublished
Cited by3 cases

This text of 813 S.W.2d 346 (Kreisel v. Wischmeier) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kreisel v. Wischmeier, 813 S.W.2d 346, 1991 Mo. App. LEXIS 1123, 1991 WL 132358 (Mo. Ct. App. 1991).

Opinion

ULRICH, Judge.

Charles Kreisel, Glen Kreisel and Anthony Kreisel appeal the judgment of the trial court dismissing their cause of action for failure to serve a necessary party. Appellants contend that the trial court erred in dismissing their will contest because (1) all necessary parties were named and served, and (2) the evidence established good cause for their alleged failure to serve all necessary parties. The trial court’s judgment dismissing the cause of action is affirmed.

Victor M. Kreisel died on September 22, 1989. Mr. Kreisel’s last will and testament, dated April 27,1988, was admitted to probate by order of the Probate Court of Benton County on September 27, 1989. Letters Testamentary were issued on the same date, and notice thereof was published beginning October 5, 1989. Mr. Kreis-el’s will provided in pertinent part:

I give devise and bequeath to the trustees of the Mount Pleasant Cemetery the sum of Two hundred thousand dollars ($200,000.00) in trust to be held and managed as follows:
I direct that said sum of money be invested in certificates of deposit or other interest-bearing accounts at the Farmers Bank of Lincoln, in Benton County, Missouri and the interest from said funds be used for the maintenance and upkeep of the Mount Pleasant Cemetery and Church. It is my intention that the primary beneficiary of this trust be the Mount Pleasant Cemetery and any funds not necessary for the maintenance and upkeep of said cemetery to be used for the maintenance and upkeep of the Mount Pleasant Church. I further state that should there be additional funds not necessary for the upkeep of the cemetery and church that the trustees be authorized to use these funds for the benefit of the First Baptist Church of Lincoln and the United Methodist Church of Lincoln.

On March 20,1990, Victor Kreisel’s three nephews, Charles Kreisel, Glen Kreisel, and Anthony Kreisel, filed a petition contesting the validity of Mr. Kreisel’s will. The plaintiffs named and served several parties as defendants, including First Baptist Church of Lincoln, United Methodist Church of Lincoln, Larry Wischmeier, and Mount Pleasant Cemetery and Church. Significantly, Mount Pleasant Cemetery and Church were named in the nephews’ petition as one defendant and served process as one party. Paragraph seven of the nephews’ petition states “[t]hat all other named Defendants constitute all the legatees and devisees, both contingent and vested, under the said purported will and all the said parties constitute all the necessary parties required by § 473.083, RSMo.” Defendants First Baptist Church of Lincoln, United Methodist Church of Lincoln, Larry Wischmeier, and Mount Pleasant Church each filed separate answers denying paragraph seven of the nephews’ petition.

Additionally, Connelly N. McDaniel, Chairman of the Board of Mount Pleasant Cemetery Association, became aware of the nephews’ lawsuit on or about April 7, 1990, and informed the plaintiffs’ attorney by letter that Mount Pleasant Cemetery and Mount Pleasant Church were two separate entities. The plaintiffs’ attorney acknowledged receipt of Mr. McDaniel’s letter in a reply letter sent to Mr. McDaniel on May 30, 1990. Enclosed with his May 30, 1990, letter, the plaintiffs’ attorney sent Mr. McDaniel a stipulation requesting that Mount Pleasant Cemetery Association stipulate to being added as a party defendant to the nephews’ cause of action. Mr. McDaniel did not respond to this requested stipulation.

On June 4, 1990, the nephews’ attorney filed a motion for substitution and addition of parties. The motion states:

Plaintiff would further request that defendant Mount Pleasant Cemetery and [348]*348Church be determined to be two separate defendants, Mount Pleasant Cemetery and Mount Pleasant Church. Mount Pleasant Church having already answered in this matter, Plaintiffs’ would request that service of process be issued on Mount Pleasant Cemetery Association, serve Connelly N. McDaniel, trustee, Rural Route 5, Box 319, Warsaw, Missouri 65355.

The plaintiffs’ motion for substitution and addition of parties was scheduled to be heard by the probate court on June 20, 1990.

Prior to the hearing on plaintiffs’ motion, defendants filed a motion to dismiss the will contest for failure to serve a necessary party as required by § 473.083, RSMo Supp.1990. On July 18, 1990, the parties appeared before the trial court on defendants’ motion to dismiss. The trial court sustained the motion to dismiss and Mr. Kreisel’s nephews appeal.

No right to contest a will existed at common law. The right is purely statutory and can only be exercised in strict compliance with the provisions of the statute. Langham v. Mann, 801 S.W.2d 394, 395 (Mo.App.1990). Section 473.083.6 provides:

In any [will contest] action the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within ninety days after the petition is filed, the petition, on motion of any defendant duly served upon the petitioner or his attorney of record, in the absence of a showing by the petitioner of good cause for failure to secure and complete service, shall be dismissed at the cost of the petitioner.

Section 473.083.6 confers jurisdiction upon the trial court in a will contest and after lapse of the prescribed period the court has no jurisdiction over the subject matter of the cause of action. Langham, 801 S.W.2d at 395-96. If service of process on all necessary parties within the statutory time limit is not complete and plaintiff fails to demonstrate “good cause,” dismissal of the suit .upon defendant’s motion is mandatory. Id. at 396. (quoting Winkler v. Winkler, 634 S.W.2d 217, 220 (Mo.App.1982)).

For point (1), the nephews contend that the trial court erred in dismissing their will contest because Mount Pleasant Cemetery and Church are one organization and, thus, proper service upon the church constituted service upon the cemetery. However, the decedent’s nephews failed to present evidence to the probate court to substantiate this claim. Rather, the only evidence before the court was Mr. Kreisel’s will and an affidavit from Mr. McDaniel, the Chairman of the Board of Mount Pleasant Cemetery Association. Mr. McDaniel’s affidavit states that the Mount Pleasant Cemetery and Mount Pleasant Church are two separate entities and that Mount Pleasant Cemetery has not been properly served process in the nephews’ will contest. Additionally, the language of Mr. Kreisel’s will, as quoted above, indicates his understanding that Mount Pleasant Cemetery and Mount Pleasant Church are separate entities. Finally, the nephews’ motion for substitution and addition of parties reflects their understanding that these are separate entities. The trial court properly determined that Mount Pleasant Church and Mount Pleasant Cemetery are separate entities. Point (1) is denied.

For point (2), the three nephews contend that, if Mount Pleasant Cemetery and Mount Pleasant Church are two separate entities, they have demonstrated good cause for their failure to timely serve process upon Mount Pleasant Cemetery.

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Bluebook (online)
813 S.W.2d 346, 1991 Mo. App. LEXIS 1123, 1991 WL 132358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kreisel-v-wischmeier-moctapp-1991.