Zimmerman v. Preuss

DONNELLY, Judge. This is a will contest. It involves the estate of Arthur G. Zimmerman, a resident of Bates County, Missouri, who died March 10, 1985. A will dated February 10,1984, named as primary beneficiaries the widow, Vera Zimmerman, and three stepchildren (Alma Cameron, Eddie Swope and Frank Swope). It also bequeathed $10,000 to Homer and Goldie Bough. This will was submitted [877] and rejected by the Probate Division of the Circuit Court of Bates County. A will dated June 22, 1984, named six nieces and nephews as beneficiaries. This will was admitted to probate. On April 4, 1985, the widow and stepchildren (primary beneficiaries under the February 10 will) filed suit to contest the validity of the June 22 will under § 473.083, RSMo 1986. They named the nieces and nephews (beneficiaries under the June 22 will) and Ralph Smith, a personal representative, as defendants. They did not name Homer and Goldie Bough as defendants. On October 4, 1985, the named defendants filed a Motion to Dismiss plaintiffs’ petition alleging that Homer and Goldie Bough, as legatees in the rejected will of February 10, were necessary parties, thus requiring their joinder. The circuit court on October 22, 1985, issued an order sustaining the Motion to Dismiss. The order was affirmed by the Court of Appeals, Western District. The cause was certified here by a dissenting judge. Mo. Const, art. V, § 10. Appellants contend that § 473.083.3 does not require the joinder of Homer and Goldie Bough. We agree. Section 473.083.3 reads as follows: 3. It is not necessary to join as parties in a will contest persons whose interests will not be affected adversely by the result thereof. Subject to the provisions of section 472.300, RSMo, persons not joined as parties in a will contest are not bound by the result thereof, (emphasis added) It is established that “all necessary party defendants [must] be named and served within the prescribed period.” Doran v. Wurth, 475 S.W.2d 49, 51 (Mo.1971). With few exceptions,1 before subsection 3 became effective January 1, 1981, (Laws of Mo.1980, p. 457), all “interested persons” were deemed necessary parties. Eddie v. Parke’s Executor, 31 Mo. 513 (1862). The general rule has been applied in Missouri to hold that legatees of a contested will, State ex rel. Eagleton v. Hall, 389 S.W.2d 798, 800-01 (Mo. banc 1965), and legatees in prior revoked wills which had been offered for probate, Hall v. St. Louis Union Trust Co., 602 S.W.2d 455, 457 (Mo.App.1980), are necessary parties to a will contest proceeding. However, the new subsection 3 mandates joinder only of those persons whose interests will be affected adversely by the result of the will contest or who are not virtually represented under § 472.300. The essential question then is the meaning and application of the “adversely affected” language in subsection 3 of § 473.083. In our view, the test is whether an interested person stands to lose some benefit if the will contest ultimately succeeds, not whether there is a possible loss of a benefit or expectancy if the contest fails. Stated another way, the question is whether an interested person may lose some protected benefit “if the contestant wins.” Nevins, Missouri Probate: Intestacy, Wills & Basic Admin., § 7-10(g). See Cool v. Reed, 710 S.W.2d 243, 246 (Mo.App.1986). In the present case, Homer and Goldie Bough cannot be deemed necessary parties. The Boughs were bequeathed $10,000 in the rejected will of February 10. They were not mentioned in the June 22 will. Therefore, the Boughs can only benefit from a successful contest of the June 22 will and thus are not “adversely affected by the result thereof.” § 473.083.3, RSMo 1986. The circuit court’s dismissal is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. HIGGINS, C.J., and BILLINGS, BLACKMAR, ROBERTSON and RENDLEN, JJ., concur; WELLIVER, J., dissents in separate opinion filed. Footnotes [1] It was held in Hines v. Hines, 243 Mo. 480, 147 S.W. 774 (1912) that grantees of devisees or heirs need not be joined. Heirs-at-law were also generally not considered necessary parties. Thomson v. Butler, 136 F.2d 644 (8th Cir.), cert. denied, 320 U.S. 761, 64 S.Ct. 69, 88 L.Ed. 454 (1943).