Mamoulian v. St. Louis University

732 S.W.2d 512, 1987 Mo. LEXIS 292

• Court: Supreme Court of Missouri
• Decided: April 14, 1987
• Docket: No. 68658
• Status: Published

Opinions

BLACKMAR, Judge.

This is an appeal from an order denying appellants’ Rule 74.32 motion to set aside a final order approving the compromise and dismissal of a will contest action. We granted transfer after the court of appeals issued an opinion dismissing the appeal.¹ We decide the case as on original appeal and conclude that the trial court’s order of approval was not in compliance with the requirements of § 473.085, RSMo 1986. We reverse the order of the trial court denying appellant’s Rule 74.32 motion and remand the case with directions.

Clara A. Drefs died on January 18, 1979, leaving as her sole heirs at law a sister, Azadia Mamoulian; the children of a predeceased sister, Martha Newman Cammack; and the descendants of a predeceased brother, Lewis Cloud Newman. A will and three subsequent codicils were admitted to probate in St. Louis County in February of 1979 and letters testamentary were granted to Mercantile Trust Company National Association.

The will and its codicils included several outright specific bequests to charities and persons unrelated to the testatrix. There was a bequest of $175,000 to a trustee, to pay an annual income of 6% of the net assets to decedent’s sister, Azadia Mamou-lian, who is a plaintiff in this case, with remainder after her death to St. Louis University. St. Louis University received a bequest of personal property and was the residuary legatee. The will also exercised power of appointment under a 1935 trust agreement in favor of St. Louis University. No provision was made for decedent’s heirs except for Mamoulian’s life income from the trust.

Mamoulian and Martha Cammack’s children filed a timely will contest petition in the Circuit Court of St. Louis County pursuant to § 473.083.1.² The petition asked that the decedent be declared to have died intestate, which would have required distribution of decedent’s estate in three equal parts to Mamoulian, the Cammacks, and the Newman descendants. See § 474.010. Named as defendants were the devisees, legatees, trustees and executor named in the will and codicils, the Attorney General of the State of Missouri, eleven descendants of Lewis Cloud Newman (including the appellants who are three of his sons), and the unknown and unborn heirs, grantees and successors of Clara A. Drefs. All eleven Newman descendants lived outside Missouri. They were served by registered mail or by publication in accordance with Rule 54.17, and receipts were filed showing service on nine of them, including the three appellants. An order of publication of notice was issued concerning four of the Newman descendants, including two whose registered letters were returned undelivered. None of the Newman descendants filed a responsive pleading. On December 31, 1980, plaintiffs filed a memorandum dismissing all eleven of them. The circuit court’s Minutes of Proceedings contained an entry on December 31, 1980: “Pltf’s dismissal of Deft’s as per memo filed.”

On January 20, 1983, after extensive discovery but prior to trial, a settlement and release agreement was approved by the court pursuant to § 473.084, and the will contest was voluntarily dismissed with prejudice pursuant to § 473.083.8.³ The court’s order of that date also stated that the “Probate Division may proceed with the probate of said Estate.” The parties consenting to the settlement and release agreement were Mamoulian, the Cam-macks, St. Louis University, Mercantile Trust Company N.A., and the Boatmen’s National Bank of St. Louis. None of the Newman descendants was a party to the settlement. The agreement provided that distribution would be made in accordance with the contested will and codicils and that, out of a partial distribution of $1,000,-000, St. Louis University would pay $200,-000 to Mamoulian, $200,000 to the Cam-macks, and $200,000 to the plaintiffs’ attorney.⁴ St. Louis University was also required to distribute certain personal property to plaintiffs. In return, plaintiffs agreed to dismiss the will contest with prejudice and Mamoulian renounced the interest in the trust provided for her in the will. The settlement made no provision for any of the Newman descendants.

Appellants, who are three of the Newman descendants, filed a Rule 74.32 motion on September 26, 1983, seeking to set the order of approval and dismissal aside for irregularity.⁵ The motion was overruled and this appeal followed.

The respondents argue that the appellants, having been properly dismissed from the suit, have no standing to file a Rule 74.32 motion or to appeal from the denial of the motion. A will contest is an action in rem. Campbell v. St. Louis Union Trust Company, 346 Mo. 200, 139 S.W.2d 935 (banc 1940). A person who has an interest in the res has the required standing to file a 74.32 motion. See In re Estate of Sympson, 577 S.W.2d 68 (Mo.App.1978).

The respondents claim that § 473.083.8, expressly empowers them to dismiss the Newman heirs as parties, and then to consent to dismissal of the will contest action. That section reads as follows:

Any such action may be voluntarily dismissed, after the period of contest has expired, by consent of all parties not in default, at the cost of the party or parties designated, at any time prior to final judgment.

The specified conditions are present. The six-month period for filing a will contest had expired (§ 473.083.1), and the Newman heirs were in default for failure to file answers. (Rule 74.045). There is, furthermore, no conflict between § 473.-083.8 and Rule 67.01, authorizing the voluntary dismissal of civil actions prior to the introduction of evidence. The statute simply adds additional requirements for will contest actions. It is not necessary to decide whether there is a distinction between the dismissal of the Newman heirs as parties and the dismissal of the suit. Whether they were parties or not, they were in default.⁶ Had the contestants simply decided to abandon their lawsuit the Newman heirs could not force them to proceed, and would have no occasion for complaint. They take a risk in leaving the suit entirely to their aunt and cousins.

The respondents, however, seek to go further, and argue that they may enter into a contract prior to the dismissal, looking toward dismissal of the suit and distribution under the will to the named devisees. They suggest that the probate division has no concern over what these devisees do with their bequests after they receive them, and that the agreed payments by the principal devisees to Mamoulian, the Cam-mack heirs, and their attorney need not be approved by the court pursuant to §§ 473.-084 and 473.083.8. They cite St. Louis Union Trust Company v. Conant, 499 S.W.2d 761 (Mo. banc 1973) and In re Estate of Simmermon, 601 S.W.2d 691 (Mo.App.1980). These cases approve the “family settlement” method of bringing will contest actions to termination, which was used before the 1980 enactment of §§ 473.084 and 473.086.

We reject the respondents’ argument. The purpose of §§ 473.084 and 473.-085 is to provide a statutory method for the settlement of will contest actions in lieu of the legerdemain previously required. There is no reason to assume that the legislature intended that an alternate method of settlement, not authorized by any statutory language, be available. In re Estate of Simmermon, supra, strongly relied on by Judge Donnelly, shows by its express language that it was decided prior to the effective date of §§ 473.084 and 473.-085, and it is no longer authoritative. The power to dismiss the action pursuant to § 473.083.8 (adopted in 1973) does not comprehend the power to enter into a settlement without complying with the new statutory requirements.⁷

Appellants contend that the procedural requirements imposed by § 473.085, for the compromise of a will contest were not met, in that the respondents neither obtained the Newman heirs’ consent to the written compromise proposal nor notified them of it. Section 473.084⁸ permits such a compromise as follows:

A compromise of any controversy as to admission to probate of any instrument offered for probate as the will of a decedent, * * * if approved in a proceeding in the court for that purpose, is binding on all the parties thereto, including those unborn, unascertained, or who could not be located.

Section 473.085 ⁹ then sets out the requirements for securing approval of the compromise. Subsection (1) mandates that:

The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise.

When §§ 473.084 and 473.085 are read together, they reveal a purpose of allowing all competent parties with beneficial interests to settle the controversy without the input of “personal representatives, testamentary trustees, and others who may have a vested interest in keeping the controversy alive.” 4 P. Hanna, Missouri Practice — Probate Code Manual, p. 82 (1986). This is consistent with the purpose of the revised probate code, in facilitating settlements. Cf. In re Estate of Basler v. Delassus, 690 S.W.2d 791 (Mo. banc 1985).

This interpretation is supported by the Comment to the Uniform Probate Code¹⁰ which states that:

[t]his section and the one preceding it outline a procedure which may be initiated by competent parties having beneficial interests in a decedent’s estate as a means of resolving controversy concerning the estate.

* * * * * *

The thrust of the procedure is to put the authority for initiating settlement proposals with the persons who have beneficial interests in the estate, and to prevent executors and testamentary trustees from vetoing any such proposal. The only reason for approving a scheme of devolution which differs from that framed by the testator or the statutes governing intestacy is to prevent dissipation of the estate in wasteful litigation. Because executors and trustees may have an interest in fees and commissions which they might earn through efforts to carry out testator's intention, the judgment of the court is substituted for that of such fiduciaries in appropriate cases.

Uniform Probate Code § 3-1102 comment (1969).

Thus, even though the appellants may have an “interest” in maintaining the contest to its conclusion with the hope that they may recover under the state’s intestacy provisions by invalidating the will, the history of the statutory language persuades us that non-parties to a will contest action, or parties in default, were not intended to have any right of participation in the settlement negotiations or in the execution of the written compromise proposal. This conclusion is consistent with a purpose of encouraging settlements, for, unless the active parties have the sole authority to reach a settlement, compromise may be virtually impossible. The authority conferred on the active parties to bind others besides themselves is highlighted by the provision of § 473.084, making the approved compromise binding on parties “unborn, unascertained, or who could not be located.”

The power to compromise, however, does not carry with it the unconditional right to settle the suit for a consideration moving only to the active parties, to the exclusion of others who are similarly situated as heirs of the decedent. A will contest is unlike other civil suits, which plaintiffs may pursue in their own interest and settle for their sole benefit as they see fit. If the purpose of the contest is to establish intestacy, and it is successful, then the estate must be distributed among all of the heirs at law, whether or not they are parties to the contest. In an alternative situation, the contestants may seek to void the will which was admitted to probate and to establish an earlier will. If they are successful, distribution is made to all devisees, including those who do not participate in the contest. Unless all potential contestants join, those who maintain a suit of either type necessarily represent others besides themselves. The only possible favorable judgment they could obtain inevitably impacts and benefits these others.¹¹ In a like manner, the appellants are bound by the order dismissing the will contest, since the time for launching their own contest has expired. This is empirically so, notwithstanding the provisions of §§ 473.083.3 and 473.084.¹²

Prior to the 1973 amendment of § 473.083, which added what is now subsection 8, a will contest could not be dismissed voluntarily. The filing of the contest vacated the probate of the will, and it could be reinstated only by probate in solemn form in circuit court. Cash v. Lust, 142 Mo. 630, 637, 44 S.W. 724, 725 (1898); McCrary v. Michael, 233 Mo.App. 797, 109 S.W.2d 50 (1937). Even after this statute was changed to allow voluntary dismissal, compromise of a will contest was not recognized by statute prior to the enactment of §§ 474.084 and 474.085 in 1980. The contest, then, could be compromised only by a side agreement or “family settlement” as described in St. Louis Union Trust Company v. Conant, supra, and In re Simmermon, supra, to which the courts maintained a posture of struthious ignorance. Under the prior statutes the problem presented by this record would not exist, because the respondents could neither cause the suit to be dismissed nor enter into a court approved settlement. The addition of §§ 473.084 and 473.085 simplified the procedure, but the present statutes do not, expressly or by fair construction, give the active contestants the power to settle the case for their sole benefit to the exclusion of others who stand in the same position. We conclude that they do not have this power.

Our conclusion is consistent with the notice given to the appellants in the summonses served on them, in which they were told that they were required to file answers within the time specified, or face the possibility that default as prayed in the petition might be entered. Such a judgment would be clearly in their interests. They had the right to assume that no action on their part was required and that they would fare as well as their cousins who were prosecuting the suit. There is want of equity if the cousins obtain benefits from the suit while the appellants get nothing. Cf. State ex rel. Eichorn v. Luten, 515 S.W.2d 857 (Mo.App.1974); 561 S.W.2d 435 (Mo.App.1978).

The contestants suggest that they have had the sole burden and expense of the suit, whereas the appellants have contributed nothing and seek to reap where they have not sown. There is no reason why a proposed compromise could not appropriately make an allowance to the contestants for expenses and attorneys’ fees. Cf. Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833, 936 (Mo. banc 1960); Jourdan v. Gilmore, 638 S.W.2d 763, 768-69 (Mo.App.1982) (party who incurs costs in preserving a fund for the benefit of himself and others is entitled to recover his expenses from the fund).

Thus, while the consent of the appellants to the proposed compromise is not required, their interests must be taken into consideration in any proposed settlement. The circuit court must not approve a compromise which fails to do this. Support for this view of the lower court’s role in evaluating the proposed compromise is found in § 473.085 which directs the court to determine whether the “effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable.” (Emphasis supplied). While the contestants may not be fiduciaries for the appellants, they are inherently “representatives,” as that term is used in the statute. There is no warrant in the statutory language or in the authorities cited for limiting the term as the partial dissent would.

An analogy is found in Rule 52.08, governing class or representative suits. These suits may not be dismissed or settled without the consent of the court, and notice of a proposed settlement must be given to the represented parties. Although this rule does not govern will contest actions, it finds its origin in the equitable principle that a litigant who functions in a representative capacity may not exclude represented persons from a settlement. That principle is equally applicable here. A will contestant has standing only as a member of a class, whether of heirs or devisees.

The appellants, pursuant to § 473.-085(3), RSMo 1986,¹³ were entitled to notice of the proposed compromise and of the proceedings for its approval. After the proposed agreement of compromise is submitted to the trial court under § 473.085(2), subsection (3) provides that notice is to be given “to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts * * Appellants come within the general definition of “interested persons” in § 472.010(15), RSMo 1986, reading as follows:

“Interested persons” means heirs, devi-sees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered and includes children of a protectee who may have a property right or claim against or an interest in the estate of a protectee. This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved.

We see no reason why the particular purpose of § 473.085(2) requires a different definition of the defined term. Section 473.085(3) is designed to ensure that all beneficially interested or affected persons who were statutorily removed from the compromise negotiations and execution described in subsection (1) are given appropriate notice so that they may be heard in support of their own interests or interests they represent. Even though we have held that the appellants could not have been involved initially in the settlement process, their concerns and interests are no less important than those of other persons, such as the executors and trustees, who may have merely an interest in fees and commissions to be earned by carrying out the testator’s intentions. Section 473.-085(3), therefore, requires notice of the settlement proposal and pending proceedings to those persons listed in the statutory definition of § 472.010. Moreover, because the circuit court must determine whether the settlement is “just and reasonable” from the standpoint of all heirs, notice to those in the position of these appellants is essential so that they may make their views on reasonableness known to the court.¹⁴

Because no notice was given to the appellants, the order of the trial court approving the compromise and dismissing the suit was irregular. The order appealed from is reversed. The case is remanded with directions to sustain the motion under Rule 74.32, to set aside the order of approval and dismissal, and to entertain such further proceedings consistent with this opinion as may be necessary.

HIGGINS, C.J., and BILLINGS, ROBERTSON and RENDLEN, JJ., concur. DONNELLY, J., concurs in part and dissents in part in separate opinion filed. WELLIVER, J., dissents in separate opinion filed.

DONNELLY, J., withdraws opinion previously filed and files dissenting opinion.

WELLIVER, J., withdraws opinion previously filed and files dissenting opinion.

1 . We borrow from the opinion of Judge Simon for the Court of Appeals without the use of quotation marks.

2 . All statutory references are to RSMo 1986.

3 . The quotation in Judge Donnellys’ opinion omits a pertinent part of the court’s order, as follows:

the Court hereby approves the terms and provisions of the Settlement Agreement and Release pursuant to Section 473.084, RSMo.

4 . Contrary to Judge Donnelly’s suggestion, there is no reason why an agreement pursuant to §§ 473.084 and 473.085 could not provide for distribution under the challenged will, followed by the extrajudicial payment by the takers under the will to the settlement beneficiaries.

5 . Rule 74.32 implicitly authorizes a motion to set aside a judgment for irregularity, if filed within three years from the date of the judgment.

6 . Appellants need not have been named as defendants in the will contest at the outset because they were not “necessary" parties. Zimmerman v. Preuss, 725 S.W.2d 876 (Mo. banc 1987).

7 .Judge Donnelly makes puzzling reference to what he perceives as obiter dictum in the principal opinion. It no doubt would not be necessary to discuss §§ 473.084 and 473.085 if his theory of the law were adopted, but we have rejected that theory in holding that those statutes are applicable.

8 . This section is identical to § 3-1101 of the Uniform Probate Code except that the UPC provision uses the terms "formal probate” and "formal proceeding in the Court."

9 . This section is also identical in all substantive respects to its UPC counterpart, § 3-1102.

10 . Official Comments to uniform laws adopted by the legislature, though not controlling, are a persuasive aid in determining legislative intent. Groppel Co. v. U.S. Gypsum Co., 616 S.W.2d 49, 57 n. 7 (Mo.App.1981).

11 . Barney v. Suggs, 688 S.W.2d 356 (Mo. banc 1985), relied on by respondents, is distinguishable because the default judgment entered there was one which the sole plaintiff could have obtained for herself if the suit had gone to trial.

12 .Section 473.083.3 states that "persons not joined as parties in a will contest are not bound by the result thereof." Similarly, § 473.084 provides that an approved compromise of a will contest is “binding on all parties thereto_”

13 . Section 473.085(3) reads as follows:

After notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court in which the controversy is pending, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries over which it has jurisdiction to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the' compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.

14 . The statute does not specify the method for giving notice. 4 Hanna, Missouri Practice — Probate Code Manual, p. 83 (1986), suggests notice l • in compliance with Rule 54.