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Keywords

jurisdictionstatuteprobatewillstatute of limitations
pleamotionprobatewilloverruled

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State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347

Facts

Joseph M. Smith died on December 17, 1941, leaving a will naming Henry Bier as executor and residuary legatee. Bier filed an application for probate on September 15, 1943, after discovering that the undertaker, O'Donnell, had concealed the will and embezzled part of the estate. The probate court found that letters of administration were issued to O'Donnell on December 26, 1941, and that the application for probate was made more than a year after the notice of letters was published, leading to the dismissal of Bier's application.

That on September 15, 1943, relator filed his application in the probate court and tendered proof of the execution of the will, alleging that one O'Donnell, 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.

Issue

The main legal issues were whether Section 532 of the Revised Statutes of Missouri is constitutional and whether it should be construed to allow probate of a will that has been fraudulently concealed beyond the one-year limit.

Relator contends: first, that the section is unconstitutional; second, even if the section is valid, it should not be construed to prevent probate of a will that has been fraudulently concealed for more than a year after administration has been granted and notice of letters published.

Rule

Section 532 of the Revised Statutes of Missouri states that no proof shall be taken of any will nor any certificate of probate issued unless the will is presented to a probate court within one year from the date of the first publication of the notice of granting letters testamentary or of administration.

Section 532 is as follows: ‘When any will is exhibited to be proven, the court, or judge, or clerk thereof in vacation, may immediately receive the proof and grant a certificate of probate, or, if such will be rejected, grant a certificate of rejection: Provided, however, no proof shall be taken of any will nor any certificate of probate thereof issued, unless such will shall have been presented to a probate court, or judge or clerk thereof in vacation, within one year from the date of the first publication of the notice of granting letters testamentary or of administration that may have been granted by any probate court in the state of Missouri, on the estate of the testator or named in such will so presented.'

Analysis

The court applied Section 532 to the facts of the case, determining that Bier's application for probate was filed too late, as it was more than one year after the notice of letters of administration was published. The court rejected Bier's arguments regarding the unconstitutionality of the statute and the claim that fraudulent concealment should toll the statute of limitations, stating that the statute is a special limitation that does not allow for extensions based on fraud.

We hold that Section 532 is constitutional and valid. Even so, relator argues that it should not be so construed as to prevent the probate of a will which has been fraudulently concealed beyond the time limited in the section.

Conclusion

The court dismissed Bier's petition, ruling that it lacked jurisdiction to probate the will due to the untimely application. The court upheld the constitutionality of Section 532 and affirmed the dismissal of the case.

Relator's motion for judgment on the pleadings is overruled and his petition dismissed.

Who won?

Byrne E. Bigger, the Judge of the Probate Court, prevailed because the court found that Bier's application for probate was not timely filed according to the statutory requirements.

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