author: RUDDY, Presiding Judge.

text:
    STATE of Missouri ex rel. SHRINERS’ HOSPITALS FOR CRIPPLED CHILDREN, a Corporation, Relator-Appellant, v. David R. HENSLEY, Judge, and Wallace J. Sheets, Clerk of the Probate Court of St. Louis County, Respondents, Carl Findeison, Julius J. Findeison, William F. Findeison, Frederick H. Findeison and Harry F. Findeison, Intervenors-Respondents.
    No. 31450.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.
    As Amended Sept. 21, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 29, 1964.
    Application for Transfer Denied Feb. 8, 1965.

      Smith, Ristig & Smith, Washington, D. C., Foster, Vogel & Stroh, John H. Stroh, St. Louis, for appellant.
    Ziercher, Tzinberg, Human & Michen-felder, Albert A. Michenfelder, Jr., Clayton, for respondents Hensley et al.
    Tremayne, Joaquin, Lay, Batts & Carr, Kenneth S. Lay, Clayton, for respondents Findeison or al.
   RUDDY, Presiding Judge.

The relator (Shriners’ Hospitals for Crippled Children, a corporation) in this certio-rari proceeding, commenced in the Circuit Court of St. Louis County, seeks to have an order of the Probate Court of St. Louis County quashed. In said order the Probate Court of St. Louis County rejected from probate a paper writing and codicil purporting to be the Last Will and Testament of Carrie Skuy, deceased, which were produced and exhibited to said court. It is the contention of relator that said Probate Court was acting in excess of its jurisdiction in receiving proof pertaining to said will and in making the order rejecting said paper writings from probate. The Circuit Court denied the relief prayed for in relator’s petition for writ of certiorari and said relator appeals.

The facts in this proceeding have been stipulated by the parties and are not in dispute. Carrie Skuy, who will be referred to as the decedent hereafter, died on June 14, 1960. Prior to her death she executed three paper writings, the first instrument of which was a purported Last Will and Testament dated May 26, 1958, and attached thereto was a purported codicil dated June 19, 1958. The second instrument was a purported Last Will and Testament dated January 16, 1959. All of these instruments were physically delivered to and deposited with the Probate Court of St. Louis County on June 29, 1960. The minutes of June 29, 1960, of said Probate Court show that the instrument dated May 26, 1958, with the purported codicil thereto dated June 19, 1958 attached were marked “filed only,” whereas, the instrument dated January 16, 1959, was marked “filed.”

On June 29, 1960, proof of the instrument dated January 16, 1959, was submitted to the Probate Court of St. Louis County by affidavits of two witnesses to said instrument. On July 7, 1960, an application for the probate of the instrument dated January 16, 1959, purporting to be the Last Will and Testament of the decedent was filed and said instrument was “produced in and exhibited to the Probate Court of the County of St. Louis, State of Missouri”; and on the same day the said instrument was ordered admitted to probate. The minute entry concerning the admission to probate of the instrument dated January 16, 1959, appears in the records of the Probate Court of St. Louis County as follows: “Purported Last Will heretofore filed admitted probate Mercantile Trust Co. granted letters testamentary — no bond.” On July 7, 1960, letters testamentary were granted to Mercantile Trust Company as executor, having been named in said instrument as such. The instrument dated January 16, 1959, admitted to probate contained a clause revoking all prior wills and codicils.

The date of the first publication of notice of the granting of letters testamentary was July 9, 1960. No application for the probate of the purported Last Will and Testament and Codicil dated May 26, 1958, and June 19, 1958, respectively, was ever made in the Probate Court of St. Louis County. No entries relating to said instruments dated May 26, 1958, and June 19, 1958, were made in the records of the Probate Court of St. Louis County after June 29, 1960, until February 26, 1962.

Relator herein was named as a legatee of a one-eighth portion of the residue of the estate under the instrument admitted to probate.

On or about April 7, 1961, certain purported heirs of the decedent filed in the Circuit Court of the County of St. Louis a suit contesting the will of January 16, 1959, and seeking a judgment that decedent died intestate. These contestants were Carl Fin-deison, Julius J. Findeison, William F. Fin-deison, Frederick H. Findeison and Harry F. Findeison. Sttbsequent to the filing of this certiorari proceeding the aforenamed contestants were permitted to intervene in this proceeding on the ground that the representation of their interests by existing parties is or may be inadequate and they are or may be bound by a judgment in this proceeding.

On February 26, 1962, intervenors filed a paper in the Probate Court of the County of St. Louis which they denominated “Application for Rejection of Will,” in which they allege “That there has been presented to and filed in this Court a- document dated May 26, 1958, purported to be a Last Will and Testament of Carrie Skuy, deceased; that there has been presented to and filed in this Court a document dated June 19, 1958 purporting to be a codicil to said purported Last Will and Testament of Carrie' Skuy, deceased.

“3. That there has been admitted to probate by this Court a document dated January 16, 1959, purporting to be a last will and; testament of Carrie Skuy, deceased, which document contains the clause revoking all prior wills and codicils of decedent.” The said application concludes with a prayer-asking the Probate Court to “enter its order rejecting the purported will of May 26, 195& and rejecting the purported codicil of June-19, 1958 of Carrie Skuy, deceased.”

Thereafter, proof of the execution of the-instrument dated May 26, 1958, and the-codicil attached dated January 19, 1958, was: taken by the Clerk of said Probate Court-On the 23rd day of March, 1962, the Judge-of the Probate Court of St. Louis County granted certificates of rejection of the said instruments dated May 26, 1958, and June--19, 1958, respectively, after showing that-said instruments were “produced in' and exhibited to the Probate Court of the County of St. Louis, State of Missouri,” and were “rejected by reason of the admission to probate of a later will dated-January 16, 1959. Therefore, the same is ordered rejected-and ordered certified and recorded.” .

On April 30, 1962, relator herein and another residuary legatee under the last will , and testament dated January 16, 1959, admitted to probate, filed a motion in said Probate Court to -set aside its order rejecting, from probate the purported will dated May 26, 1958, and the purported codicil thereto dated June 19, 1958. The two movants alleged that they were legatees under the two instruments rejected by the court. They further alleged in said motion that the two instruments rejected “were merely filed”' in the Probate Court on June 29, 1960, pursuant to § 473.043 V.A.M.S.1959, and that-under the provisions of § 473.050 RSMo-1959, V.A.M.S., the Probate Court was “without jurisdiction to receive evidence of proof” of said purported will and said purported codicil thereto because said instru-merits had not been presented to the Judge or Clerk of the Probate Court within nine months from the date of the first publication of notice of granting letters testamentary, namely, July 9, 1960. Said movants contended that they will be substantially prejudiced because said purported last will and testament and said purported codicil thereto may be interjected in the pending will corn test on file in the Circuit Court of the County of St. Louis to set aside the last will and testament of Carrie Skuy, dated January 16, 1959. On May 18, 1962, the Probate Court denied the motion.

Thereafter, certain parties claiming to be interested in the probate of the paper writings dated May 26, 1958, and June 19, 1958, interjected by way of their answer and counterclaim in the will contest the instruments dated May 26, 1958, and June 19, 1958, asserting their validity in the event the Circuit Court determined that the instrument dated January 16, 1959, was not the last will and testament of decedent. As the pleadings now stand in the Circuit Court in said will contest the issues presented are whether the two purported wills and the purported codicil are valid or whether the decedent died intestate.

After the Probate Court denied relator’s motion to set aside the rejections of the instruments described, relator filed its petition for a writ of certiorari in the Circuit Court of St. Louis County. The petition alleged the facts that we have described aforesaid and further alleged that the action of the respondent judge and respondent clerk was in excess of the jurisdiction granted them and the Probate Court under the law and in legal effect asked the court to quash the record of the Probate Court rejecting the questioned instrument from probate. A writ of certiorari was issued by said Circuit Court, respondents filed their joint answer to the relator’s petition and intervenors filed their joint answer. The Circuit Court of the County of St. Louis denied the relief requested.

Relator contends that'the ofder rejecting the described instruments from probate cannot be reached either by the route of appeal or of will contest and holds that the only remedy available is an Extraordinary remedial, writ, in this case 'the ¡vfcrif of cer-tiorari. All statutory references hereafter ■will be to Revised Statutes of Missouri 1959, V.A.M.S., with amendments,' if any, unless ■otherwise indicated. ; • ■ ,

Section 472.160 enumerates the orders, judgments or decrees, of the Probate Court from which an appeal may be taken. The first fourteen sub-sections thereof do not permit an appeal from the order questioned in this case. The 1957 amendment to sub-section (15) of § 472.160 RSMo 1949 (now § 472.160) provided that an appeal is allowed “[i]n all other cases where there is a final order or judgment , of the probate court under this Code except orders admitting to or rejecting wills from probate.” (Emphasis ours.) Consequently no appeal lies from the order complained of. The case law previous to the amendment to subsection (15) of § 472.160 RSMo 1949, held that no appeal lies from the order complained of in the instant case. Lucitt v. Toohey’s Estate, 338 Mo. 343, 89 S.W.2d 662, nor does the questioned jurisdiction of the Probate Court in the making of the order rej ecting the will and codicil come within the provisions of § 473.083 which provides that, “If any person interested in the probate of a will appears within nine months after the date of the probate or rejection thereof, or within nine months after the first publication of notice of the granting of letters on the estate of the testator, whichever is later, and, by petition to the circuit court of the county, contests the validity of the will, or prays to have a will proved which has been rejected, an issue shall be made up whether the writing produced is the will of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court.”

The issue sought to be presented by the relator herein is not whether the writing's produced in the Probate Court are the will of the testator or not, hut relator’s sole issue questions the jurisdiction of the Probate Court to act on the instruments because of the time lapse between the date of the publication of the first notice of granting letters testamentary and the time of the presentation of the instruments to the court. The sole purpose of the will contest statute, § 473.083, is to ascertain the single fact whether a certain paper or papers are or are not the last will and testament of the deceased. The statute authorizing a will contest permits no other issue to be tried in said contest. State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73; Callahan v. Huhlman, 339 Mo. 634, 98 S.W.2d 704; State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S.W. 281, 50 A.L.R. 787; Cox v. Cox, 101 Mo. 168, 13 S.W. 1055; Canty v. Lehmkuhl, Mo.App., 164 S.W.2d 132. An issue of the Probate Court’s jurisdiction to make the questioned order of rejection of the instruments in question could not properly be tendered in a will contest, Cox v. Cox, supra; Canty v. Lehmkuhl, supra.

Where there is no remedy by appeal the extraordinary remedial writ of certiorari is applicable where the court to which it is directed either has no jurisdiction or acts in excess or abuse of its jurisdiction. State ex rel. Hamilton v. Guinotte, supra; State ex rel. Kassen v. Carver, Mo.App., 355 S.W.2d 324. Certiorari serves the purpose of undoing a thing done, without jurisdiction, after it has been done, State ex rel. Smith v. Williams, 310 Mo. 267, 275 S.W. 534. That is the situation in the instant case. The purpose of this proceeding is to quash the order made by the Probate Court, allegedly without jurisdiction, and which is not an order from which an appeal may be taken. If the Probate Court acted beyond its jurisdiction, then the order made may be quashed in this proceeding, State ex rel. Hamilton v. Guinotte, supra.

It is the position of relator that the documents dated May 26, 1958, and June 19, 1958, purporting to be the Last Will and Testament of Carrie Skuy, deceased, were not “presented” to the Probate Court of St. Louis County within the meaning of § 473.-050 until March 23, 1962, twenty and one-half months after the first publication of notice of granting letters testamentary in the estate of said decedent and, therefore, the Probate Court did not have jurisdiction to either probate or reject said documents when they were finally presented.

Section 473.050 provides as follows: “No proof shall be taken of any will nor any certificate of probate thereof issued, unless the will has been presented to the judge or clerk of the probate court, within nine months from the date of the first publication of the notice of granting letters testamentary or of administration by any probate court in the state of Missouri, on the estate of the testator named in the will so presented.”

Our summary of the record shows that the two instruments dated May 26 and June 19, 1958, were deposited with the Clerk of the Probate Court on June 29, 1960, together with the instrument that ultimately was probated. The record shows that the 1958 instruments were marked “filed only” and no proof was taken as to them, whereas, the instrument dated January 16, 1959, was marked as being filed and immediately upon being filed was produced in and exhibited to the Probate Court and proof was offeree1, after which letters testamentary were granted on July 7, 1960, and the date of the first publication of notice of their grant was July 9, 1960. There is nothing in the record to show that the 1958 instruments were ever “produced in and exhibited to the probate court” or that proof was taken until February 26, 1962, when the intervenors filed a paper in the Probate Court which they denominated “Application for Rejection of Will.” Thereafter, for the first time 'proof was taken of the 1958 instruments which were then “produced in and exhibited” to the Probate Court as recited in the certificate of rejection of said court. It will be remembered that the date of the first publication of notice of the grant of letters testamentary was July 9, 1960, and the time lapse between the publication date and when the application for rejection was filed was a period of time far in excess of nine months. As stated, it is the contention of relator that the 1958 instruments were not “presented” to the probate court, judge or cleric thereof within the meaning of § 473.-050 until the filing of the Application for Rejection and the necessary proof by the subscribing witnesses was given as provided in § 473.063. Until the Application for Rejection was filed there had been no application for letters testamentary under the 1958 instruments as provided in § 473.-073. In this connection we point out that there is no statutory authority permitting anyone to file an “Application for Rejection” of a will. The only application authorized is one for letters under a will, § 473.073, and after the will has been exhibited before the judge or clerk of the probate court and the proof thereof taken the court determines whether or not the will should be admitted to probate or rejected pursuant to § 473.047. We do not think it is the function of anyone interested in a will to ask the court to reject the will. That is a function for the court to perform, if it so determines, after the will has been exhibited and the proof has been submitted. However, this irregularity is not fatal because the 1958 instruments were “produced in and exhibited” to the Probate Court and proof of the due execution of same was taken by the Probate Court after which the said Probate Court granted its certificate of rejection.

As pointed out by relator there is no statutory definition of the word “present” as it is used in § 473.050. Also relator and respondents have been unable to find, nor have we been able to find, a case in this state defining this term as used in the statute. We do find some help in the case of State ex rel. Mitchell v. Gideon, 215 Mo.App. 46, 237 S.W. 220. The court had to determine which of two probate courts had jurisdiction of the estate of the decedent. In mak-

ing a determination when jurisdiction attached in the probate court, the court, when discussing other cases and authorities said: “The Supreme Court of Minnesota, in the case of Hanson v. Nygaard, 105 Minn. 30, 117 N.W. 235, 127 Am.St.Rep. 523, holds that the jurisdiction of the probate court over the estate of a deceased person attaches when its general jurisdiction is invoked by the presentation to the court of a proper petition by some person entitled to take such action. See Culver v. Hardenbergh, 37 Minn. 225, 33 N.W. 792, loc. cit. 797, where the same doctrine is announced by the Supreme Court of Minnesota.

“In 11 R.C.L. 73, the rule is announced that the jurisdiction of the probate court over the estate of a deceased person attacheu when its general jurisdiction is invoked by the presentation to the court of a proper petition by some person entitled to take such action.”

In the case of Abrams v. Ross’ Estate, Tex.Com.App., 250 S.W. 1019, 1. c. 1021, the court there said: “We think a will is ‘presented for probate’ when it is filed in the proper court, together with a sufficient application for its probate as required by law. It is presented for probate by the application. It remains presented for probate so long as the proceeding so instituted is entitled to recognition as a pending proceeding, and no longer.” (Emphasis ours.) A similar statement taken from this case appears in 95 C.J.S. Wills § 316, p. 134.

These cases show that something more than the mere filing of a will has to take place before the will has been presented to the judge or clerk of the probate court. As these cases point out the general jurisdiction of the probate court attaches when the will is presented to the court by a proper petition by some person entitled to take such action and that there must be more than a mere filing; that the filing must be accompanied with an application for the probate of the will as required by law. Then and only then is it presented for probate by the application for probate.

In 72 C.J.S., p. 491-, the definition of the word "present” includes within its meaning “ * ⅜ * to lay before, or submit to, a person or body for consideration or action, * * * to submit, as a petition, * * * for a decision or settlement to the proper authorities; to offer for judicial action or inquiry; * ■ *

We are aware that the term "present” in a few situations has been held synonymous with the term “file” but we think the manner in which it has been used in the 'Statute and the circumstances to which it applies requires that the term “present” be distinguished from the term "file.”

■ These two words in their usual and ordinary sense are not generally defined as synonymous. For example, Webster’s New International Dictionary, 3rd Ed., defines to “present” as, among other things, “to lay (as a charge) before a court as an object of inquiry: give notice officially o'f (as a crime or offense) : find or represent judicially (the grand jury presented many offenses) : ” whereas, to “file” is defined in the same authority : “to deliver (as a legal paper or instrument) after complying with any condition precedent (as the payment of a fee) to the proper officer for keeping on file among the records of his office: * * * to return (a law case) to the office of the clerk of a court without action on the merits.” We think that when a document is marked “filed only” in a court that it is not presented to the court but is merely deposited to be kept on file until such time as someone interested in the paper formally lays before or submits to the court the said paper for consideration and action. It will be remembered that the 1958 instruments were deposited with the Probate Court and were marked “filed only” which clearly indicated that they were deposited with the court with no application for probate and with no contemplated action thereon by the court.

In the case of Carpenter v. Alton R. Co., Mo.App., 148 S.W.2d 68, 1. c. 69, the court in determining whether or not an application for a change of venue had been presented to the trial court, in referring to the case-of Berlin v. Thompson, 61 Mo.App. 234,1. c. 239, said: “That decision is authority for the proposition that when an application is-filed in vacation of court, and is never called to the attention of the judge, there has been no presentation to the court.” After reciting all of the facts the appellate court said: “We think these facts are sufficient to-establish that the application was presented to the court so as to inform the court of the filing of an application and to require a disposition of same.’’ (148 S.W.2d 1. c. 70). (Emphasis ours.) The facts in that case demonstrate that the mere filing of the-application was not enough but that in-order that it be presented to the court, it had. to be done on a day when the court was actually in session and that the trial judge was-informed in open court when the case was-called for trial that such an application had. been filed, which is authority for the proposition that something more than a mere filing' had to take place before it could be held that the application was presented to the court.

Further proof of this can be found in the-form appended to § 473.047 RSMo 1959,, V.A.M.S., Vol. 25, which is a form suggested for (“CERTIFICATE OR ORDER OF PROBATE OF LAST WILL AND-TESTAMENT OF ., DECEASED”) by the Forms Committee of the Missouri Association of Probate Judges. The pertinent part of this form-reads as follows:

“I, ., Judge Clerk of the Probate Court of the county and state aforesaid do hereby certify that on this .... day of ., 19...., there-is presented for probate .instrument . in writing dated .., and filed herein on the . day of ., 19...., purporting to be the Last Will and Testament and . Codicil . thereto of., Deceased, and the Judge Clerk having examined such instrument . and, * * This-srtggestcd form clearly indicates that the Forms Committee of the Missouri Association of Probate Judges recognized that the “filing” of an instrument purporting to be the last will and testament of a decedent is not the same as “presenting” and that these .are two separate and distinct acts which •may be and are often carried out on separate days.

Section 473.043 provides: “After the ¡death of a testator the person having ■custody of his will shall deliver it to the probate court which has jurisdiction of the ■estate.” The person having custody of the will is not required to seek the probate ■of the instrument. The mere fact that a will is delivered to the Probate Court does not commence the probate proceedings, Vol. 3, Maus, Probate Law and Practice, Sec. 206, p. 188. Section 474.510(4) provides that a will may be deposited in the Probate Court by testator during his lifetime and shall under certain circumstances be opened after his death and after being ■opened will be “ * * * retained * * * mntil offered for probate.” This statute ■clearly shows that the probate court takes no action or jurisdiction of the estate of the decedent until the will has been offered dor probate. A will is offered for probate when one interested in the will files an application for its probate. The practice in Missouri has been to file an application dor the probate of a will of a decedent.

In the instant case both wills should have been presented to the Probate Court and it was for that court to say whether either or both wills had been duly executed. Durell et al. v. Martin et al., 172 Tenn. 97, 110 S.W.2d 316; 95 C.J.S. Wills § 311, p. 113. Section 473.010(2) provides for the filing of an application for letters and further provides that the proceedings are deemed commenced by the filing of an application for letters. Seer tion 473.013 provides that “The administration of the estate od a decedent from the filing of the application for letters testamentary or of administration until the decree of- final distribution and the discharge of the last administrator or executor is deemed one proceeding for purposes of jurisdiction.” Therefore, the jurisdiction of the Probate Court attaches when the application for letters testamentary is filed.

In many sections of the Probate Code reference is constantly made to the filing of an application for letters testamentary and again reference is frequently made to an applicant for letters testamentary. Section 473.020, subd. 1, provides that “If no application for letters is filed by a person entitled thereto under section 473.110 within twenty days after the death of decedent any interested person may apply to the court of the proper county.” Subd. 2 of said § 473.020 provides that the application of such interested party shall be verified and provides for other matters that shall be recited in said application and further provides that said petition shall be set for hearing within a stipulated time and that after hearing the court may order the issuance of letters testamentary “or it may enter an order refusing letters on the estate or dismiss the petition.” All of this shows the need for the filing of a petition or an application for probate of a decedent’s will. Again we find that § 473.073 subd. 2, contemplates the filing of an application for letters and upon the determination of certain facts the Probate Court may grant letters or may deny the application.

It is the contention of respondents that a filing or physical delivery of a will to the Probate Court constitutes “presented” and that in the instant case the 1958 instruments were presented to the Probate Court at the time they were filed on June 29, 1960. The only authority cited by respondents in support of their contention is the case of Keys v. Keys’ Estate, 217 Mo. 48, 116 S.W. 537. This case involved the question of whether a claim filed with the Probate Court satisfied the requirements, of the claim statute § 195 RSMo.1909, which was as follows: “No claimant shall avail him-iself of the benefit of' the preceding section .unless he shall present his dem'apd to the court in the manner provided by law, for allowance, within two years after the granting of the first letters on the estate, * Respondents claim that the following language in the Keys’ opinion supports their contention, (116 S.W. 1. c. 541) :

“If the claim was filed in the court within the time, it can make no difference as to when the court acted thereon. Claimants cannot always regulate the actions of the courts, and all they have to do is present their claims within the statutory period of limitations. Nor does ‘presentation,’ as used in the statute, mean that there should be an actual presentation to the judge and a hearing thereon, but if the claim is actually lodged with the court, through the file mark of its clerk or otherwise, such is a sufficient presentation to meet the requirements of the law, although the judge of the court may not act thereon for days thereafter. The filing with the clerk is a presentation of the claim to the court.”

However, respondents failed to include that part of the opinion which immediately follows the above and which is as follows:

“We concur in the language of Ellison J., in his separate concurring opinion in Savings Bank v. Burgin, 73 Mo.App., loc. cit. 116, wherein he says: T agree that a claim must be both exhibited to the administrator and presented to the probate court for allowance within the two years prescribed as a limitation. But I believe that when a claim has been duly exhibited to the administrator, and then, within the period of limitation, is filed in the probate court, it becomes a part of the records of such court, and is presented to the court in the sense of the statute. * * (116 S.W. 1. c. 541).

From this it is seen that a mere filing of a claim in the Probate Court does not constitute presenting the demand to the court in the manner provided by law. The claim must first be exhibited to the administrator.

The Keys case did not hold that a mere filing of the claim with the clerk is a presentation of the claim to the court. The Supreme Court in the case of State ex rel. Dean et al. v. Daues et al., 321 Mo. 1126, 14 S.W.2d 990, at 1. c. 1001, explained in detail the gist of their ruling and holding in the Keys case when they said :

“The gist of our rulings and holdings in the Rassieur and Keys Cases [Rassieur v. Zimmer, 249 Mo. 175, 155 S.W. 24, Keys v. Keys’ Estate, 217 Mo. 48, 116 S.W. 537], supra, therefore, was that a claimant’s demand is deemed to be presented, or filed, in the probate court, for allowance, if, and when, the proper (i. e., the statutory) notice is served upon the administrator of decedent’s estate, or such service of the statutory written notice is waived by the administrator, before the running and bar of the special statute of limitation. It seems to be clear, from what was said in the Rassieur and Keys cases, supra, in construing section 195, R.S. 1909, before its amendment in 1911, that this court deemed and considered it to be a necessary and prerequisite procedural step, leading to the presentation, or filing of a claimant’s demand for allowance in the probate court, and in order to give, or confer upon, that court jurisdiction of the claimant’s demand, and the power to act thereon (this emphasis ours), that the claimant must serve upon, or deliver to, the administrator or executor of the decedent’s estate the statutory written notice in the form, manner and time as required and prescribed by sections 203 and 204, R.S. 1909 (now sections 194 and 195, R.S.1919) * * * ”

This clearly shows that in order for there to be a presentation of the claim to the Probate Court at the time the Keys case was ruled, in addition to filing claimant’s demand in the Probate Court, there had to be a proper notice served upon the administrator of the decedent’s estate or a waiver of service of such notice.. As said in the Daues case, supra, the notice required “is intended and designed to perform a double purpose and office: (1) It serves as an exhibition (to the administrator or executor of an estate) of a claimant’s demand for the purpose of the allowance of such demand; and (2) it performs the office of an ordinary summons, by virtue of which, when properly served, the probate court acquires jurisdiction over the person of the administrator or executor in the judicial proceeding for the allowance of the demand.” (14 S.W.2d 1. c. 998) Service of the prescribed notice in the form required and filing of the claim in the Probate Court constitutes presenting the claim which initiates or commences the proceeding when both steps are followed and taken by claimant. This case is no authority for a holding that the mere filing with the clerk constitutes “presented.”

We rule that a will has not been presented to the judge or clerk of the Probate Court within the meaning of § 473.050 when it is merely “filed” and not accompanied with a petition or application for its probate.

Therefore, in the instant case the 1958 instruments were not presented to the Probate Court within the meaning of § 473.050 until the “Application for Rejection of Will” was filed on February 26, 1962. This was approximately nineteen and one-half months after the date of the first publication of notice of the granting of letters testamentary which took place on July 9, 1960. Section 473.050 specifically limits the time within which the Probate Court may take proof of a will. Unless the will has been presented to the Judge or Clerk of the Probate Court within nine months from the date of the first publication of the notice of granting letters testamentary, said Judge or Clerk has no power or authority to take any proof of said will or to issue any certificate of probate or rejection.

The case of State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347, was an original proceeding in the Supreme Court for a writ of mandamus to compel respondent, judge of the probate court, to take jurisdiction of the probate of an alleged last will of a decedent and “to render a decision admitting or rejecting said alleged will to’ probate.” (178 S.W.2d 1. c. 348) Relator in his petition for mandamus alleged, among other things, “That the probate court held that because the application for probate was made more than one year after notice of letters, under the provisions of Section 532, Revised Statutes Missouri 1939, Mo. R.S.A. § 532, vol. 1, p. 925, the court was without jurisdiction to take proof of the alleged will, or to issue a certificate of probate or rejection, and dismissed the application.” (178 S.W.2d 1. c. 348).

Section 473.050 is the successor statute to that portion of § 532 RSMo 1939, referred to above. The only practical difference between the two statutes being the period within which the will must be presented.

Relator’s petition in the above case alleged that “the undertaker who conducted the burial of Smith, had fraudulently concealed the will, had himself appointed administrator and had embezzled a large portion of the estate.” (178 S.W.2d 1. c. 348). The Supreme Court in dismissing relator’s petition said “This court has uniformly held that where a statute of limitations is a special one, not included in the general chapter on limitations, the running thereof cannot be tolled because of fraud, concealment or any other reason not provided in the statute itself.” (178 S.W.2d 1. c. 350). It further held that said section “is a special statute limiting the time for probating wills and it does not expressly or impliedly authorize the time to be extended for any reason.” (178 S.W.2d 1. c. 351.) Adding, that “[t]he purpose of such statutes is expressed in one of the earliest of them, 21 James I, chap. 16, ‘For the quieting of men’s estates and the avoiding of suits.’ In particular cases, this inflexible limitation may seem harsh. If so, the remedy is legislative, not judicial.”

In the Biers case the Supreme Court relied on Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644, 1. c. 648, wherein it said: “We conclude that our statute (the predecessor of § 473.047 and § 473.050 RSMo 1959, V.A.M.S.) limiting the time for the probate of a will, a reasonable rule which does not discriminate between residents and nonresidents, does not conflict with the Treaty with Germany. It does not unlawfully limit or restrict the freedom of disposal by testament. Consequently, it is not superseded by the treaty.

“The statute is mandatory on respondent and in proceeding contrary to its express prohibition he acted without authority and in excess of his jurisdiction.” The question for decision in the Wyers’ case was whether a treaty between the United States and Germany which seemed to have no limitation period was to be construed as superseding the statute of this state (now § 473.050) which limits the time within which a will may be admitted to probate.

Section 473.050 prescribes a jurisdictional limitation and the Probate Court, Judge or Clerk thereof had no jurisdiction under the circumstances present in the instant case to take proof of the 1958 will and codicil presented after the nine month jurisdictional limitation. Having no jurisdiction' to take proof of the will after the nine month jurisdictional limitation, logically, the Probate Court can neither admit to probate nor reject the will and codicil offered after the nine month period has elapsed. Any attempt to take proof or reject the will after the nine month jurisdictional limitation is beyond the jurisdiction of the Probate Court and any orders made by the Probate Court in such attempt are void and should be quashed.

We are aware that § 473.050 does not expressly bar a certificate of rejection, but it is obvious that if proof of a will cannot be taken that no order concerning the pro-bate or rejection of said will can be made. Obviously, under the statute rejection can only be made when the court fails to find one or more of the facts enumerated in § 473.073.

It is clear that where the court cannot take proof of a will, it can neither admit to probate nor reject from probate the said will. It is likewise clear that a will neither probated nor rejected cannot be injected into a will contest in order to ascertain whether or not it is the last will and testament of the deceased since the Circuit Court in a will contest may not admit a will to probate unless it is first probated or rejected in the Probate Court, § 473.083(2); Breeding v. Pack, Mo., 164 S.W.2d 929; Ebling v. Hardesty, Mo.App., 354 S.W.2d 348.

We rule that the orders of the St. Louis County Probate Court rejecting from probate the instruments dated May 26, 1958, and June 19, 1958, are void for want of the court’s jurisdiction to take any action regarding said instruments. Therefore, it is ordered that the proceedings and judgment of the Probate Court wherein it took proof of the 1958 instruments purporting to be the last will and testament of the decedent and entered its order rejecting from probate said purported will dated May 26, 1958, of Carrie Skuy, deceased, and purported codicil thereto dated June 19, 1958, be quashed and said proceedings and judgment be held for naught.

In view of our holding and order the judgment of the Circuit Court is reversed and cause remanded with directions to the Circuit Court to order the record of the Probate Court, questioned in this proceeding, quashed pursuant to the views expressed herein.

WOLFE and ANDERSON, JJ., concur.


source: Caselaw Access Project

author: L. F. COTTEY, Special Judge.

license: Public Domain

text:
    Leo WRAY, (Plaintiff) Respondent, v. Theodore Mills KING and Justin Allen Moore, Defendants, Theodore Mills King, (Defendant) Appellant.
    No. 31732.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for defendant-appellant Theodore Mills King.
    Dearing, Richeson, Weier & Roberts, H. L. C. Weier, Hillsboro, for defendant Justin Allen Moore.
    Dorsey & Aulbert, Gerard Dorsey, St. Louis, David L. Colson, Farmington, William L. Mason, Jr., St. Louis, for plaintiff-respondent.
   L. F. COTTEY, Special Judge.

Plaintiff sued Moore (the driver of a vehicle in which he was riding as a passenger) and King (the operator of a second vehicle) for damages for personal injuries suffered by him when the two collided. He recovered a judgment against King; the jury exonerated Moore. On this appeal by the losing defendant the decisive question is whether plaintiff’s verdict-directing instruction was prejudicially erroneous because it ignored the possibility that the accident was caused by the non-negligent skidding and sliding of defendant’s automobile on the icy highway. To determine whether that possibility had a factual basis we look only to the evidence offered by plaintiff on the subject, including those portions of both defendants’ depositions which plaintiff read in evidence as admissions against interest. From that evidence this picture of the accident emerges.

At about “a quarter till 7:00” on a “chilly” December morning plaintiff was traveling from Flat River to his home in Mill-creek in a pick-up truck driven by the exonerated defendant, Moore. Their route took them in a generally southerly direction over U.S. Highway 67, “a concrete road” two lanes wide, or “approximately 20 feet.” “There was a fog” that morning, “but you could see” for a distance of “five, six hundred feet.” “The highway was wet” — “you know how a heavy fog will make the highway damp” — and the temperature was “maybe 31, it was freezing;” but neither plaintiff nor his driver noticed “any precipitation in the air, rain, sleet, snow,” nor “any ice anywhere, either on the pavement or off the pavement” prior to the accident. Plaintiff’s driver “suspicioned that there was ice on the highway,” however, although at no time had he experienced any “difficulty with traction” or “any sliding or skidding” in the operation of his truck.

At a point on the highway “near the Koll-meyer farm” the road slopes upgrade to the north — “I’d say upgrade” — and curves or bends “to the left.” As plaintiff entered that curve from the north, traveling uphill at a speed of “35 to 40 miles an hour,” he observed defendant’s automobile coming down the grade “four to five hundred feet away” and entering the curve from the south at “between 55, 60 miles an hour.” He watched it from the time he “first saw it up until the time of the collision.” He noticed no “application of brakes or slacking of the speed” of defendant’s automobile as it approached. It was on its own side of the road when he first observed it, “just about like a feller drivin’ on the highway in their own lane,” and it stayed in its own lane until it was about “55, 60 feet” from the truck, when “all of a sudden it turned sideways.” “The back end of his car left, swerved over into our lane * * * swerved around in our lane in front of us” and “ * * * it slid down the highway towards us after it swerved around.” “Four or five feet of” the rear portion of defendant’s automobile thus protruded into plaintiff’s lane of traffic; but the front portion of the automobile “was still on, over in his lane.” Defendant’s automobile slid “sideways;” it “was coming down there normally” until “just all of a sudden it was across the road * * * and then it just continued sliding sideways right down until the time of the collision.” There was no further explanation of the incident. Defendant’s automobile “was in perfect condition;” its brakes were “good”; its tires “were practically new.”

Promptly after the collision plaintiff’s driver got out of his truck and “discovered there was a thin coating of ice on there and slick.” Plaintiff regained consciousness at the scene of the accident some “two and a half hours” after the collision and at that time observed that “the road was icy”; he “noticed ice there,” but he “didn’t notice any ice before.”

In the light of those facts, gathered as we have said exclusively from evidence introduced by plaintiff, it seems hardly worthwhile to notice plaintiff’s present insistence that “ * * * there was no evidence in the case that skidding caused defendant’s automobile to move to the left of the center of the roadway; if there was any such evidence in the case, it did not come in plaintiff’s case, and was a matter for defensive instruction only.”

Plaintiff’s verdict-directing instruction made no reference to the slippery condition of the highway or to the sliding action of defendant’s automobile. It submitted simply and solely that defendant “ * * * failed to drive on the right half or east half of said road and highway, but instead went onto the left side or west half of said road and highway and came into collision with the motor truck * * * ” in which plaintiff was riding. Clearly plaintiff’s evidence established a factual basis for the possibility that that maneuver was caused by the lion-negligent skidding and sliding of defendant’s automobile on the icy pavement; and clearly plaintiff’s main instruction ignored that possibility. The omission is fatal.

It is too well settled to admit of doubt that a submissible case cannot be made by proof that defendant’s automobile merely skidded or slid into collision with plaintiff’s vehicle on the highway, for such a mishap (so the courts hold) may as readily be caused by circumstances beyond defendant’s control as by his negligence; hence no inference of negligence arises upon such a showing. Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59, 63; Evans v. Colombo, Mo., 319 S.W.2d 549, 550; Evans v. Colombo, Mo.App., 311 S.W.2d 141, 144; Karch v. Stewart, Mo., 315 S.W.2d 131, 135; Doyle v. Wilmesherrer, Mo., 358 S.W.2d 837, 840. Where the evidence of the skidding is confined to the defendant’s case, as where he offers it to explain and excuse the accident, it is unnecessary for plaintiff’s verdict-directing instruction to make reference to it, because plaintiff is under no duty to hypothesize or otherwise notice defensive or exculpatory evidence introduced by his adversary (although, of course, he may not so frame his instructions as to preclude the jury’s consideration of it when properly submitted in defendant’s own instructions). Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015, 1021; Murray v. St. Louis Wire & Iron Co., Mo.App., 238 S.W. 836, 839; Evans v. Colombo, Mo.App., 311 S.W.2d 141, 144. But where evidence of the skidding gets into the record as part of plaintiff’s own case, he may not ignore it, because, by doing so, he must necessarily assume in his instruction that defendant was in control of the automobile and was consequently responsible for its maneuvers —a thing which the evidence of its skidding tends to refute, or at least to relegate to the realm of speculation and conjecture.

The result to which these considerations lead in this case (as in all others where evidence of the skidding is adduced as a part of plaintiff’s case), and the reasoning by which that result is justified, may be demonstrated in four successive steps:

(1st) The real issue is not whether defendant “failed to drive on the right half” of the roadway and “instead went onto the left side,” but whether he was negligent in doing so. “The proximate cause of the collision is to be found in the cause of the skidding.” (Italics added). Evans v. Colombo, Mo.App., 311 S.W.2d 1. c. 145. That is the “basic issue.” Karch v. Stewart, supra, 315 S.W.2d 1. c. 135.

(2nd) If defendant was in control of his car at the time it “went onto the left side” of the highway — that is, if he drove or operated it across the centerline — of course he was negligent. Sec. 304.015(2) V. A.M.S. But if the rear end of his car skidded laterally across the centerline on the icy pavement, and the car continued to slide forward in a sideways position into collision with plaintiff’s vehicle, it is obvious he was not in control of it, because automobiles are not so constructed as to make possible their controlled operation in that manner. Doyle v. Wilmesherrer, supra, 358 S.W.2d 841.

(3rd) But the unexplained skidding of defendant’s car out of control does not, ipso facto, exculpate him. That fact has been said to give rise to an inference that “is merely ambiguous,” Branch v. Gordon’s Transports, Inc., Mo.App., 375 S.W.2d 418, 423, or to “two inferences, one of which would support a verdict for plaintiff and the other not,” Evans v. Colombo, Mo.App., 311 S.W.2d 1. c. 145. To avoid the possible anomaly of allowing contradictory inferences to be drawn fi-om the same fact we prefer (and believe it is just as accurate) to say that the skidding of defendant’s car, standing alone, gives rise to no inference at all. It simply leaves open the question of negligence or no negligence. It furnishes no guide by which that question can be answered one way or the other, but leaves the issue to speculation and conjecture. If the jury is to resolve it intelligently, the additional information suggested by this query must be supplied: Did the defendant, immediately prior to the collision, operate his automobile in such a negligent manner as to cause it to go into a slide and out of control? When the facts developed by that inquiry are analyzed it will be found that in a two-car collision case (to which the res ipsa loquitur doctrine is not applicable, State ex rel. Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4, 5) there are but two courses open to plaintiff:

(a) He may elect to submit defendant’s negligence in causing the car to go out of control as a ground of recovery. In that event, of course, his verdict-directing instruction must hypothesize the facts that support that theory. Branch v. Gordon’s Transports, Inc., supra, 375 S.W.2d 424.

(b) He may elect not to submit on that theory but on some other, as, for instance, “failing to drive on the right half or east half of said road;” but in that event he may not ignore his own evidence as to the car’s skidding or sliding, for that is the evidence “upon which the submission of negligence must be premised,” Doyle v. Wilmesherrer, supra, 358 S.W.2d 841. In Branch v. Gordon’s Transports, Inc., supra, 375 S.W.2d 1. c. 421, the court, supporting that conclusion with a number of authorities, said, “In our view, this question must be examined in the light of those cases which hold that if, in the process of making a prima facie case or in proving conduct which would ordinarily constitute negligence per se, the plaintiff adduces evidence which tends to show an accidental or non-negligent cause, or a matter which would exonerate the defendant, then the plaintiff’s verdict-directing instruction may not ignore the evidence which tends to excuse the defendant, but must hypothesize the possibly non-negligent causes or exculpatory facts and require the jury to find that the defendant’s conduct was in fact negligent. Otherwise, the verdict-directing instruction is said to be erroneous as ignoring the real issue, or excluding it from the jury’s consideration.” Plaintiff must, in other words, hypothesize enough of the attendant facts and circumstances to warrant the jury in finding that the skidding of defendant’s car out of control was itself the result of some antecedent negligence on defendant’s part, and hence not a legitimate excuse for the accident.

(4th) And where, as in this case, he follows neither of those courses, hut submits simply that defendant failed to drive on the right half of the roadway (which fact is conceded), and does not inform the jury of the exculpatory effect of a non-negligent skid (which fact is ignored), his verdict-directing instruction will be condemned for the several reasons assigned in Evans v. Colombo, Mo., 319 S.W.2d 1. c. 552; Kitchen v. Pratt, Mo.App., 324 S.W.2d 779, 784-785; and Doyle v. Wilmesherrer, supra, 358 S.W.2d 841. The vice of the instruction is two-fold: (a) It assumes, as a fact implicit in the word “drive,” that defendant was in control of his car and hence responsible for its failure to remain on the right half of the roadway, thus predicating his negligence on the mere fact that it failed to remain there; and (b), since that false issue is based on uncontra-dicted evidence that defendant’s car did leave the right half of the roadway and cross into the left lane, the instruction effectively forecloses any possibility that the jury would exculpate him by finding that a non-negligent skid was the real cause of the accident. The effect of such an instruction, reduced to inelegant metaphor, is to set defendant in a game where the cards are stacked against him.

Confronted with that situation, defendant did what he could. He requested and received Instruction No. 4 which told the jury that if he was in the exercise of the highest degree of care at all times, and that notwithstanding such care his “automobile slid and skidded out of control across the centerline of Highway 67 and into collision with the truck” in which plaintiff was riding, and that defendant “was unable to avoid the collision after his car began to slide and skid,” then he should be exonerated. Plaintiff says this instruction supplied the deficiencies of his own. We cannot agree. The same situation arose, and the same contention was made, in Karch v. Stewart, supra, 315 S.W.2d 137, where it was held that the two instructions were in conflict and the error in the first could not be cured by the giving of the second.

Upon the giving of Instruction No. 4, plaintiff countered with Instruction No. 5. It told the jury that if defendant drove “at a speed of from 55 to 60 miles per hour * * * out of a curve * * * on a downgrade * * * and-on an icy road * * and if he was negligent in doing so and the skid was caused thereby, then “ * * * such skidding, if any, is no defense to plaintiff’s cause of action.” (Italics added). Plaintiff insists that this instruction sufficiently covered the skidding phase of the case and cured any error in his main instruction. Again, we cannot agree. It was not a verdict-directing instruction. It only purported to counter a “defense” to plaintiff’s cause of action; and it thereby illuminates and emphasizes the specious character of the issue actually submitted by the verdict-directing instruction. This, because skidding is not a “defense” in these cases; it is a circumstance tending to show that plaintiff never had a cause of action in the first place. When the skidding is established by plaintiff’s own evidence he must explain it away, else his proof is ambiguous and his cause doubtful; and he may not submit on an equivocal showing that puts the outcome of the case at the hazard of the jury’s caprice. To the extent that the instructions treated the issue of skidding as a defense, then, they tended to shift the burden of proof from plaintiff to defendant, and the jury’s confusion was thrice confounded.

The judgment must be reversed for the reasons given; but inasmuch as the record discloses that plaintiff can in all probability make a submissible case on the “basic issue,” the cause should be remanded for a new trial in line with the policy followed in most of the cases cited herein. It is so ordered.

WOLFE, Acting P. J., and ANDERSON, J., concur.


text:
    Nola E. BROTHERTON, (Plaintiff) Respondent, v. CITY OF JACKSON, Missouri, and Louis Loos and Robert Hoffmeister, d/b/a Loos and Hoffmeister Construction Company, (Defendants) Appellants.
    No. 31581.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.

      Buerkle & Lowes, Albert C. Lowes, Paul Mueller, City Atty., Jackson, for appellants.
    No counsel for respondent.
   RUDDY, Presiding Judge.

This is an action by plaintiff for an injunction and for damages for an alleged trespass. The principal issue in the case is the determination of the location of the boundary line between plaintiff’s property and a public street of the City of Jackson, Cape Girardeau County, Missouri. From a decree and judgment finding a boundary line and enjoining and prohibiting defendants from entering upon property north of the boundary line found by the court defendants have appealed.

The petition is in three counts. It is alleged by plaintiff in the combined counts that she is the owner of a tract of land in the City of Jackson, County of Cape Girardeau, State of Missouri, as more particularly described in the petition; that in the alternative to the description contained in the petition she states that she owns all property between her house and the asphalt roadbed of a street in Jackson, Missouri, known as the Old Cape-Jackson Road; that the defendants, Louis Loos and Robert Hoffmeister, doing business as Loos and Hoffmeister Construction Company, have a contract with the defendant City of Jackson to widen said Old Cape-Jackson Road and to resurface said road and install curb-ings along the edges thereof; that the defendants and each of them through their agents, servants and employees “have trespassed on said property and threatened to continue trespassing upon said property, and further threaten to enter upon said land without the consent of the plaintiff and do irrepairable damage and injury to the plaintiff” ; that no proceedings have been taken by the defendant City of Jackson as required by law for the ascertainment and the payment of damages to the plaintiff; that the house located on the described property was constructed to conform to the grade of said street and that the grade of said street has heretofore long since been established and used and that the defendant City of Jackson without lawful authority is lowering the actual grade of the Old Cape-Jackson Road “about three (3) feet and will greatly damage plaintiff’s. property”; that she (plaintiff) has not consented to the change of grade, nor have the damages which she has sustained been paid, nor has the defendant, City of Jackson, taken or begun any proceedings to have such damages ascertained and determined; that the defendants, Loos and Hoffmeister, have begun and are proceeding with the work of changing the grade of said street and that said action will greatly depreciate and damage said property.

It is further alleged by plaintiff in said petition that during the months of September and October 1962, defendants have trespassed on the property owned by the plaintiff and have damaged lawns, shrubs, trees and flowers and the foundation under plaintiff’s house located on the above described property and as a result she has sustained severe mental anguish and pain; that as a result of these trespasses upon her property and injuries to her person she has been damaged in the amount of $10,000.

In the combined prayers contained in the petition she prays that defendants be enjoined and restrained from entering upon said land and from changing the grade of said street and for judgment against said defendants in the amount of $10,000.

On the same day the petition was filed the court entered a restraining order directing “that the defendants he absolutely restrained and prohibited from entering upon the premises described in the petition, * *

Defendant, City of Jackson, in its answer denied the pertinent allegations of plaintiff’s petition and alleged that the public roadway referred to in plaintiff’s petition has existed for more than 100 years and that its existence was established in the case of State ex rel. Hines v. Cape Girardeau and Jackson Gravel Road Company, 207 Mo. 85, 105 S.W. 761, and definitely decided therein that the Old Cape-Jackson Road, which runs along the south of the plaintiff’s described land, was a public road and was of 50 foot width. It further alleged that said right of way is definitely established by a plat on file in the office of the Recorder of Deeds, County of Cape Girardeau, Missouri, being filed in Plat Book 1 at page 32, wherein there is shown a center line, and the right of way purports to be 25 feet to each side thereof. It was further alleged that the proposed construction is well within the confines of the said 50 foot right of way and that no one can claim by adverse use any lands against the public, including the City of Jackson, Missouri. It is admitted in said answer that defendants Louis Loos and Robert Hoffmeister have a contract to widen said Old Cape-Jackson Road and to resurface said road and install curbing along the edges thereof. It denies that the grade of said roadway is being changed.

In a separate answer of Louis Loos and Robert W. Hoffmeister they deny the pertinent allegations of plaintiff’s petition and admit that they have a contract with the defendant, City of Jackson, Missouri, to widen said Old Cape-Jackson Road and to resurface said road and install the curbing along the edges thereof.

In the year 1851 the Cape Girardeau Mc-Adamized and Plank Road Company constructed a macadamized or plank road and prior to said construction caused a line for a road from the City of Cape Girardeau in the County of Cape Girardeau, Missouri, to the Town of Jackson, Missouri, in said county, to be surveyed and marked out and in order to carry out its purpose the said company procured from certain owners of land a deed whereby the said grantors conveyed a permanent right of way through and over their respective lots and lands which were described in the deed executed by said landowners on the 25th day of September, 1851. By virtue of this deed a strip of ground 50 feet wide, along the line of said road, from the City of Cape Girar-deau to the Town of Jackson was conveyed for a right of way. On November 6, 1907, in the case of State ex rel. Hines v. Cape Girardeau and Jackson Gravel Road Company, supra, the Supreme Court en Banc determined that this roadway was 50 feet in width and confirmed its establishment. This road has been referred to throughout the pleadings and the evidence herein as the Old Cape-Jackson Road. The road was a toll road and the toll house where the toll payments were made is the residence now located on the property claimed by the plaintiff. It seems the road remained a toll road until some time between 1905 and 1910. when the toll gate was taken down. Witnesses said that the toll was paid through the bay window of the house located on plaintiff’s property and that the toll gate was located on the road at the house. At some time this 50 foot roadway was improved by paving it with a hard surface referred to by the witnesses as “blacktop.” The record does not disclose the width of the blacktop pavement except that one witness testified that the asphalt pavement is about 20 feet from the center line, when describing the west side of the road adjoining plaintiff’s property. In describing the present condition of this blacktop road on the west side he said that he had to dig back in the gravel and dirt a little bit to uncover the edge of the asphalt, because grass had grown over the asphalt pavement. It was agreed by the parties that the City of Jackson has been maintaining the portion of the road which is presently blacktop.

As stated the principal issue in this case was the determination of the location of the boundary line between plaintiff’s property and the Old Cape-Jackson Road. Plaintiff and her two sons were the only witnesses in plaintiff’s case and their testimony is scarcely sufficient to establish the location of the boundary line in issue.

Plaintiff’s evidence shows that the property in question was purchased by her and her husband who is now deceased. They bought the property from Mr. J. G. Kies in 1946. Plaintiff failed to introduce in evidence the deed under which she acquired title to the property. The toll house heretofore mentioned was on the property and is a two story house containing seven rooms, with a bay window that extended out toward the Old Cape-Jackson Road. Prior to the grading of the road there was a lawn between the house and the blacktop road. Plaintiff said she had a row of flowers set near the house and a grass lawn between the flowers and the blacktop road. The distance between the edge of the house and the edge of the blacktop road was approximately 6½ to 7 feet. One of plaintiff’s witnesses described a two foot drop in the slope of the land between the house and the road. Plaintiff’s sons mowed the grass between the house and the blacktop road from 1946, when plaintiff acquired the property, until the City of Jackson graded the road up to plaintiff’s house. Plaintiff said that the City of Jackson never mowed any of the grass at any time on her side of the road. At one point in her testimony plaintiff claimed that all of the property up to the blacktop road was hers, but at a subsequent time in her testimony she admitted that she does not claim any land except that which is described in her deed, excluding two tracts that she sold, one on each side of her present tract. She thought her property ran up to the blacktop because she was told so by her grantor, Mr. Kies. She said she paid taxes on the land that was described in her deed and that she did not intend to claim “somebody else’s land.” As stated, two' tracts of land were sold from the original! tract acquired by the plaintiff. These tracts, of land were sold to plaintiff’s sons and at' the time she deeded the properties to her sons she had the land surveyed by Mr. W. J. Ferguson. However, no one who participated in this survey testified on behalf of plaintiff, nor was any evidence of this survey introduced by the plaintiff. However, Oscar Lee Brotherton, one of plaintiff’s sons, questioned the accuracy of the Ferguson survey.

In preparing to pave the entire SO foot width of the roadway and place curbings, the City of Jackson graded between the blacktop pavement and the house. Plaintiff said they graded the lawn and in the grading process “they jerked out great big roots off of those shrubs and I had flowers that were blooming along that road.” She further testified “they have quite a bit of it tore away now real close to the house and jerked out one rock that was in under the side of the house, they got so close.” One of plaintiff’s witnesses testified, “it’s been bulldozed out and it’s been cut down about two foot, which I said it dropped off two foot * This is all the evidence shown in plaintiff’s case.

Defendants in their case introduced the 1851 deed. Dr. D. I. L. Seabaugh, called as a witness by defendants, testified that he was 80 years of age and had lived in the county 57 years. As a young man he had many occasions to travel upon the Old Cape-Jackson Road and to pay the tolls required thereon. He said, “the gravel road there come plumb up to the bay window ⅜ ⅜ you could drive up there with a buggy wheel right at the window, reach out and pay the toll.” He said that the first time he traveled the road and paid the toll was in 1892 and that he went through the toll gate many times thereafter. Between 1905 and 1910 the payment of toll was abolished and the toll gate was taken down. He said that after the toll gate was taken down the road has always been there, stating that it was not used as close to the house as it had been previously.

W. H. Wagner, a witness for the defendants, testified he was 86 years of age and had been a lifelong resident of the Jackson community. When shown a picture of the house on plaintiff’s property he said it was the same house that was there when the tolls were collected, and described the bay window as the part that “sticks out there.” When asked if it is the same today as the time it was used as a toll house, he answered, “I think so.” He also testified that he would drive his buggy right up to the bay window of the toll house and hand in his money while sitting in the buggy.

Charles T. Farrow, City Engineer for the City of Jackson, testified that part of the house and part of the land claimed by plaintiff is in the 50 foot right of way. He made a number of scale drawings pertaining to the location of the road and its boundary relation to plaintiff’s property and identified and explained these drawings in the course of his testimony. He admitted that all of the drawings with the exception of one had no beginning point that could be definitely tied down to the land itself. He admitted that without a beginning point it is impossible to plat the description on to the land itself with any degree of accuracy and in order to make a plat that would be accurate it would have to start with a beginning point that could be related to the land itself. He identified defendants’ Exhibit J as a drawing and plat that reflected a survey of the actual center line of the road, which survey definitely fixed the beginning point as the center of a bridge on the east side of Hubble Creek. He said he followed this center line of the road from this beginning point, tying it in with the property markers along the way and carried it on past the plaintiff’s property and reiterated that this exhibit was actually platted out on the land itself. It was from this drawing prepared from the survey referred to that the witness formed the conclusion that part of the house and part of the land of plaintiff was within the 50 foot right of way. He said he also made a drawing that represents the description in the 1946 deed to the plaintiff from Mr. Kies and said he was unable to locate the beginning corner of the property from the description that appeared in the deed. He said that some of the calls were missing in the deed and for this reason the description did not close and therefore was not accurate. Witness testified that none of the grading took place on any of plaintiff’s land.

The defendants requested the court to make specific findings of fact and conclusions of law. Thereafter, the court entered a judgment dissolving the restraining order and entered a judgment and finding for the defendants. Within thirty days after entering the aforesaid judgment the court modified its order and judgment and entered a new order and judgment which established a boundary line between the boundary of the roadway claimed by the City of Jackson and the blacktop pavement and permanently enjoined defendants from entering north of said line. The court in its judgment entered a description of the boundary line found by it and then further described the boundary as a line approximately 6 inches north of the north curb line of the Old Cape Girar-deau Jackson Road, said curb having been installed in 1962. We have not been favored with a brief from plaintiff (respondent).

While it may be necessary to inquire into and make a finding respecting the title to plaintiff’s property and the public right of way in order to determine the issues herein, nevertheless, title is not involved so as to vest the appellate jurisdiction in the Supreme Court. It has been held that our Courts of Appeals have jurisdiction to inquire into a title controversy incidentally or collaterally involved in the disposition of the presented issues on the merits. Cases seeking to enjoin a trespass on real estate frequently present an issue necessitating an inquiry into the title. It has been held in these cases that title was only collaterally in issue and not involved in the constitutional sense. Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721.

A suit to establish a boundary line does not so involve the title to real estate as to confer appellate jurisdiction upon the Supreme Court, Albi v. Reed, Mo., 281 S.W.2d 882, 1. c. 885. A case similar to the instant case is that of the City of Marshfield v. Haggard, Mo., 300 S.W.2d 419. In that case plaintiff, a municipal corporation in Webster County, Missouri, filed suit against defendant Beulah Haggard for the purpose of obtaining possession of land 50 feet in width and 260 feet in length, claiming the land to be a part of Burford Street in said municipality. The defendant contended that the plaintiff City did not own any interest in said block. The court held that the real dispute was not title but was a determination of the true south boundary line of Block 5, stating “Upon this appeal, defendant’s sole claim is that the boundary of Block 5 as established by the decree is incorrect. Defendant does not deny that plaintiff City is entitled to an easement for street purposes. So, the sole issue in dispute, tried in the court below, was as to the proper south boundary line of defendant’s property. It is evident that title to real estate is not involved so as to vest this court with appellate jurisdiction. Albi v. Reed, Mo., 281 S.W.2d 882, loc. cit. 885, 886 (5-8).” (300 S.W.2d 1. c. 420).

Similarly, the defendants in the instant case claim that the boundary line established by the decree of the court is incorrect. The jurisdiction of this case is in this court.

The trial court, although requested, in accordance with Civil Rule 73.01(b), V.A. M.S., to make specific findings of fact and conclusions of law, failed to do so in violation of said Rule. However, we need not comment any further about this omission, because a more serious error is apparent in the court’s judgment which will require a reversal of the judgment.

Defendants contend that the trial court erred in establishing a boundary line in its amended order in that there was no evidence to support such boundary line. There is not a scintilla of evidence offered either by the plaintiff or the defendants which will support the boundary line established by the court in its judgment. We are inclined to agree with the statement of defendants contained in their brief that “the trial court, by its modified order, appears to be making a compromise between the evidence offered by the plaintiff and the evidence offered by the defendant.” It is quite obvious, as defendants contend, that the trial court traveled its own way and established a boundary line that has no support in the record in this case. A judgment must be based on something more substantial than mere guess or speculation or the effort of a trial court to compromise litigation. Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356, 1. c. 359. It is also the settled law that a judgment must conform, not only to the evidence, but to the pleadings, and a decree outside the record issues is invalid, Renken v. Sidebotham, Mo.App., 227 S.W.2d 99, 1. c. 102.

Plaintiff, at first, based her claim on all of the land between her house and the existing blacktop road on the strength of what her grantor told her when she pur- ' chased the property. She thereafter made it clear that she claimed nothing more than the land described in her deed. Unfortunately, she did not introduce her deed into evidence in her case and failed to adduce any evidence, other than that stated, which showed the boundaries of her property according to the description in her deed. Defendants’ witness, Charles T. Farrow, said that the description was inadequate because it failed to contain certain calls and thereby failed to close the description of the property. Also, he stated, that the beginning point referred to in the deed no longer existed. At least he could not find it. The defendants adduced evidence that showed a 50 foot right of way had been established by decision of the Supreme Court of Missouri in the case of State ex rel. Hines v. Cape Girardeau and Jackson Gravel Road Company, supra. A plat drawn by the City Engineer which had a specified beginning point that could be traced to the land showed that a part of plaintiff’s house and land is on the roadway easement. This was not rebutted in any respect by the plaintiff. There is nothing in the record which showed that the boundary, line as found by the .court conforms to any of the evidence ad- . disced by the plaintiff or the defendants : and, therefore, the court erred in entering its order and judgment establishing the .boundary line.

¿Further, we hold that plaintiff’s evidence fails to establish any boundary line, whereas defendants’ evidence clearly demonstrated that the right of way as established in the Supreme Court decision and as found and defined in one of defendants’ plat drawings establishes a boundary and shows that a part of plaintiff’s house and land will be on defendants’ right of way. Therefore, plaintiff failed to prove that the defendants trespassed and entered upon her premises. Also, plaintiff failed to prove that the defendants changed the grade of the street. It will be remembered that one of the sons of plaintiff testified that the drop in the •slope of the ground from the house to the blacktop was approximately two feet. There was no evidence adduced upon the part of plaintiff to show that there was any change in this grade of the street. For this reason, the judgment of the trial court should be reversed outright.

While plaintiff in her pleadings did not claim the land between her house and the blacktop road by reason of adverse possession we feel it appropriate to point out that no such claim could be made in view of § 516.090 RSMo 1959, V.A.M.S., which provides: “Nothing contained in any statute of limitations shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this state.”

It was held in the case of Bowzer v. State Highway Commission, Mo., 170 S.W.2d 399, that one cannot acquire title by adverse possession to the land within the correct boundaries of a public right of way.

The act embodying this section 516.090, supra, went into effect August 1, 1866, as a part of the general statutes of 1865 (Chap. 191 § 7). In the case of City of Pacific v. Ryan, 325 Mo. 373, 28 S.W.2d 652, 1. c. 654, the court said: “To make that statute inapplicable in this case, it was necessary that defendant (plaintiff here) show that he was successor in title and possession of some one who, under claim of ownership, took and held possession as against the city before August 1, 1866. A possession under claim of ownership taken after the statute went into effect would not have set the statute of limitations in operation as against the city, and can avail the defendant (plaintiff here) nothing, even if he showed privity existed between himself and the person taking such possession.” (Parentheses ours.)

For the reasons given heretofore the judgment of the trial court is reversed and the cause is remanded to the trial court with directions to dissolve the restraining order heretofore entered by said court and to enter judgment for the defendants on all counts contained in plaintiff’s petition.

WOLFE and ANDERSON, JJ., concur.


author: SMITH, Justice.

text:
    Ellen Davis HERRING et al., Petitioners, v. James Alex BLAKELEY, Respondent.
    No. A-10031.
    Supreme Court of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 3, 1965.

      Andrew J. MacMaster, Bradford & Pritchard, Dallas, for petitioners.
    Jay S. Fichtner, Harvey L. Davis, Dallas, for respondent.
   SMITH, Justice.

This declaratory judgment suit presents to the Court the primary question of whether or not a profit-sharing plan and trust agreement and a retirement annuity plan (the particulars will be given later), are property, and, if so, shall such property be classed as community property.

In the beginning, we deem it necessary - to identify the parties to this suit, and to give a complete factual background in order to fully understand why it is important that the nature of the two plans be determined. ~

James Alex Blakeley in his capacity as :j , Trustee under the will of James E. Herring, •. deceased, filed this suit alleging that Ellen Davis Herring, a feme sole, Ferris McKool, ¡ Receiver, Pacific Finance Corporation, Marathon Insurance Company, a subsidiary of P. F. C., United California Bank, and the John Hancock Mutual Life Insurance Company were necessary parties defendant. v

In September, 1948, James E. and Ellen Davis Herring were husband and wife, and such relationship continued until the marital ties were broken by a judgment of divorce. Although the judgment of divorce bears the date of August 18, 1960, it was stipulated in the trial of this case that the judgment was actually entered on August 2, 1960. We construe this stipulation to mean that judgment was rendered on August 2, 1960. It was also stipulated that Ellen Davis Herring received no property at the time of the divorce. However, James E. Herring filed an inventory in which he listed both the profit-sharing plan and the annuity as assets, but specifically noted that no funds would be available from these plans until his employment terminated. Thereafter, the trial court in the divorce case appointed Ferris McKool as Receiver of the community property. As Receiver, McKool was made a party in this declaratory judgment suit.

James E. Herring, as an employee of Marathon, from and after 1951, was a qualified participant in a “PF Employee’s Profit-Sharing Plan and Trust Agreement,” which was created by Pacific, and the funds under this plan were contributed entirely by Pacific and Marathon.

In 1952 Herring, as an employee of Marathon, was issued and became the holder of a certificate issued by the John Hancock Mutual Life Insurance Company by virtue of its group annuity contract with Pacific. Under the provisions of the certificate, Herring would be entitled to a retirement annuity based on his contributions and the contributions of his employer toward the purchase of the annuity.

Under both of these plans the employee had the unrestricted right to designate a beneficiary to receive certain death benefits. Under the terms of both plans, Herring had the authority to change the beneficiary at will. The profit-sharing plan would pay to this designated beneficiary a cash lump sum equal to the amount credited to the deceased employee’s profit-sharing account. Under the annuity contract the beneficiary would be paid the contributions made by the employee with interest thereon.

On August 17, 1960, James Herring-changed the death beneficiary of the profit-sharing plan from Ellen Herring to Respondent, James Alex Blakeley, Trustee. Blakeley was also named trustee of the residuary estate of James Herring by the latter’s will. The residuary trust was primarily for the benefit of the minor children of James and Ellen Herring. On September 21, 1960, Herring made the same change with respect to the annuity. When Herring died ten months after the divorce, the death benefits from the profit-sharing plan amounted to $11,623.86 and from the annuity contract, $2,285.48. Blakeley claimed the benefits of both plans as the deceased employee’s designated beneficiary.

Blakeley by this suit sought a declaratory judgment that (1) death benefits payable under the profit-sharing plan and the retirement annuity contract were not community property of Ellen Davis Herring and decedent, James Herring; (2) Ferris McKool, Receiver, who was appointed by the Court in the divorce proceedings, had no claim to the funds; and (3) Plaintiff Blakeley recover judgment against the United California Bank and John Hancock Mutual Life Insurance Company for the death benefits of the plans. The defendants filed an answer, cross action and third-party action requesting the court to award the funds to Ferris McKool, Receiver, or one-half of them to Ellen Davis Herring. John Hancock Mutual Life Insurance Company filed an interpleader. The funds from both plans were paid into the registry of the court and all parties to the proceedings were dismissed, except James Alex Blake-ley, Trustee, Ellen Davis Herring and Ferris McKool, Receiver. Blakeley later filed a motion for summary judgment, claiming all the funds as the designated beneficiary under the will of James E. Herring, deceased. Ferris McKool and Ellen Davis Herring also filed a motion for summary judgment, claiming that the funds were community property at the time of the divorce of James and Ellen Herring some ten months prior to the death of James E. Herring. They claimed that the funds should be paid to McKool as Receiver for the community property, or in the alternative, one-half of the funds should be paid to Ellen Davis Herring as her share of the community estate. We point out that each motion for summary judgment prayed for a declaratory judgment.

The trial court’s summary judgment in favor of Ferris McKool, Receiver, and Ellen Davis Herring was reversed by the Court of Civil Appeals and that court rendered judgment in favor of James Alex Blakeley, Trustee. 374 S.W.2d 677.

We have concluded that the employee’s interest in both plans was community property, and that as of the date of the divorce, Ellen Davis Herring is entitled to one-half of the value of these plans for the reasons now to be stated.

The profit-sharing plan contains a formula by which an employee’s account vests in the employee. The amount thus vested is paid to the employee when he terminates his employment. Under this formula the profit-sharing account was fully vested in Herring at the time of the divorce. The ownership of this account was unconditional. The contract simply provided that when Herring should terminate his employment, whether voluntarily or otherwise, he would be entitled to the full sum credited to his profit-sharing account. The employee’s vested interest in the plan has all the attributes of property, and we hold that it was property at the time of the divorce.

For the same reasons the annuity contract was also property at the time of the divorce. The value of the annuity contract could also be drawn by the employee when his employment was terminated.

The final question is: Was this property part of the community estate at the time of the divorce? It is undisputed that the profit-sharing plan came into existence during the marriage; that all contributions to James Herring’s account in the plan were made during the marriage; and that James’ account fully vested in him during the marriage. As to the group retirement annuity contract, it is undisputed that James Herring became a group member during the marriage; and that all contributions by James toward the purchase of the annuity were made with community funds. We hold that James Herring’s vested interest in the profit-sharing plan and his interest in the retirement annuity contract were community property at the time of the divorce.

Property acquired by the husband during marriage is community property unless acquired by gift, devise or descent. See Articles 4613, and 4619, Vernon’s Annotated Civil Statutes. Both of these plans were acquired during the marriage. There is no contention that either was acquired by devise or descent. The following stipulation entered by these parties in the trial court negatives any implication that either plan was a gift to James Herring from his employer:

“That during the .marriage of said parties, James Edward Herring was employed by Marathon Insurance Company, a wholly owned subsidiary of Pacific Finance Corporation, and as part of his compensation, he acquired certain rights in a profit sharing plan with said Company and a retirement annuity agreement with John Hancock Mutual Life Insurance Company.” (Emphasis added.)

Even without this stipulation we do not think it could be shown that the benefits of these plans were gifts to the employee. In the case of Lee v. Lee, 112 Tex. 392, 247 S.W. 828 (1923), it was argued that benefits-under a plan to which the employer made all the contributions were gifts to the employee, hence his separate property. The Commission of Appeals rejected that argument, saying:

“It was in no sense a donation to the employé for individual merit, but was-manifestly additional compensation for faithful and continuous service. It was as much a fruit of his labors as his regular wages or salary. It was in the strictest sense a ‘gain’ added to the common acquests of the marital partnership, as the direct result and fruit of his labor and services.”

Courts in other community property states have held that funds of this type are community property unless they are found to be gifts from the employer. See Crossan v. Crossan, 35 Cal.App.2d 39, 94 P.2d 609 (1939) ; Daigre v. Daigre, 228 La. 682, 83 So.2d 900, 55 A.L.R.2d 951 (1955); 134 A.L.R. 366, 15 Am.Jur.2d 858 (Community-Property § 46).

Blakeley seeks to avoid the effect of a holding that these plans were community property at.the time of the divorce by his-contention that none of the funds were available at that time. Since they were not available, Blakeley argues, they could not be subject to the orders of the divorce court even if they were community property. The language of the divorce court’s order, covering as it does “all of the community property of the parties,” is broad enough to include community property that was not available at the time of the divorce, but that could be reduced to possession at some later date. There is no requirement in Texas that community property must be reducible to immediate possession before a divorce court can take jurisdiction to determine the parties’ rights therein. Community rights may exist in interests that cannot be reduced to possession, such as remainder or reversion rights. See Cannon v. Murphy, 31 Tex. 405 (1868) ; Crenshaw v. Harris, 16 Tex.Civ.App. 263, 41 S.W. 391 (1897, no writ). As is said in 20 Tex.Jur.2d 555 (Divorce and Separation % 218):

“The mere fact that funds are received by a spouse after the divorce decree has been granted does not mean that they are not subject to division. Thus, for example, a wife is entitled to share with her husband in the reimbursement received for an advancement made by him to a corporation during the existence of the marital relation, paid after divorce, and in the salary of the husband earned prior to, but paid after, divorce.”

Blakeley relies upon the case of Allen v. Allen, 363 S.W.2d 312 (Tex.Civ.App., 1962, no writ). In that case the divorce court expressly refused to make any findings concerning the wife’s alleged interest in the husband’s Railroad Retirement Act pension on the ground that not enough evidence was introduced to show what

rights the husband had in the’ pension at the time of the divorce. The Court of Civil Appeals affirmed that holding, and went on to say that the issue of community ownership in the pension was controlled by the Railroad Retirement Act, a federal statute. The court interpreted that statute as denying the wife any rights in the pension. The case at bar is distinguishable in both respects. First, as the discussion above indicates, the record here does provide a clear definition of the husband’s rights at the time of the divorce, and the divorce court’s order was broad enough to include those rights. Second, no federal legislation, nor indeed any legislation, is before us for interpretation.

Blakeley turns for support of his position to certain earlier life insurance cases noted below which, in effect, held that the designated beneficiary in an insurance policy is entitled to- the proceeds thereof as against the claim of the community. There is no necessity for this court to enter into an exhaustive analysis of these cases to demonstrate that such cases have no application in so far as the particular point involved in the case at bar is concerned. It is sufficient to say that none of those earlier cases clearly held that a life insurance policy was property, ’-hereas, we have specifically held that the two plans involved are property and that the proceeds of such plans constituted community property at the time the marriage of James E. Herring and Ellen Davis Herring was dissolved.

The Court of Civil Appeals cites the case of Buehler v. Buehler, Tex.Civ.App., 323 S.W.2d 67, 72 A.L.R.2d 920 (1959), wr. ref’d, n. r. e., in support of its holding that the named beneficiary was entitled to receive all of the funds. We do not agree that the Buehler case is in point. The relevant facts in that case were these: An employee died intestate after having: named his second wife beneficiary of the death benefits under the Weingarten Employees’ Profit Sharing Retirement Plan. The deceased’s only son contended that the entire death benefits were part of his father’s estate and that therefore the son was entitled to a portion thereof under the laws of descent and distribution. The court held that the named beneficiary and surviving widow was entitled to the entire proceeds. The case was a simple dispute over the proceeds at death, not over the value of the plan upon divorce. In fact, there is nothing in the opinion to indicate that the employee was ever divorced. There was no claim that the proceeds were community property. The holding in the case is consistent with the view that the employee’s interest in the plan was community property, since the widow was also the named beneficiary.

We come now to the judgment to be entered in this case. Since there is no evidence of the value of James Herring’s interest in the two plans on the date of the divorce, the cause is remanded to the trial court with instructions to ascertain such value and to award to Ellen Davis Herring one-half the value of James Herring’s interest in both plans as of August 2, 1960, the date of the divorce, and award to James Alex Blakeley, Trustee, the remainder of the sum of $13,909.34 heretofore paid into the registry of the court less the sum of $200.00 awarded in the former judgment in this case as attorney’s fees to the attorney for John Hancock Mutual Life Insurance Company. The trial court shall order that Ferris McKool, Receiver, take nothing. All costs are adjudged against James Alex Blakeley, Trustee.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to the trial court for the entry of judgment in accordance with this opinion.

      . Article YI, Section 6.1 provides in part: “The interest of each participant in his profit-sharing account shall vest up to a maximum of one hundred per cent (100%) in accordance with the following provisions: (a) Ten per cent (10%) for each completed full year of continuous regular employment. For a participant who is employed on January 1, 1951, the first such year shall commence January 1, 1951, and shall be completed on January 1, 1952, and for a participant who is employed subsequent to January 1, 1951, the first such year shall commence on his date of hire and shall be completed one year thereafter. On the completion of the fifth (5th) year of such continuous regular employment, all service of a participant recognized by the Company or Subsidiaries for normal seniority purposes which was completed prior to the date specified for commencement of the first year shall be added and treated as continuous regular employment in determining the number of full years of continuous regular employment.”

      . Article VI, Section 6.2 provides in part: “When a participant ceases to participate, the Committee shall with reasonable promptness authorize the Trustee to pay to the former participant a cash lump sum equal to the amount credited to his profit-sharing account * * * multiplied by the percentage of his vested interest determined in accordance with Section G.l; * * * ”

      . Warthan v. Haynes, 155 Tex. 413, 288 S.W.2d 481 (1956); Volunteer State Life Ins. Co. v. Hardin, 145 Tex. 245, 197 S.W.2d 105 (1946); Martin v. McAllister, 94 Tex. 567, 63 S.W. 624 (1901). Subsequent to Warthan v. Haynes, Article 23 (1), Vernon’s Ann.Civ.Stats., was amended; and this Court held that the right to receive insurance proceeds payable at a future but uncertain date is “property.” The statutory definition of “property” now includes “insurance policies and the effects thereof.” Brown v. Lee (Tex., 1963), 371 S.W.2d 694 at 696.