dissenting.
Clara A. Drefs died on January 18, 1979, leaving as her sole heirs at law: a sister, Azadia Mamoulian; the children of a predeceased sister, Martha Newman Cammack; and the descendants of a predeceased brother, Lewis Cloud Newman. A will and three codicils were admitted to probate in the Probate Court of St. Louis County on or about February 14,1979. The principal beneficiary is St. Louis University. On May 15, 1979, Azadia Mamoulian and Martha Cam-mack’s children filed a will contest petition in the Circuit Court of St. Louis County pursuant to § 473.083.1, RSMo 1986. The petition requested that Clara be declared to have died intestate, which would have required distribution of her estate in three equal parts to Azadia, the Cammacks, and the Newman descendants. § 474.010, RSMo 1986. All eleven Newman descendants were sent a copy of the summons and petition by registered mail. Signed return receipts were filed showing service on nine of the Newman descendants, including the three appellants. The registered letters to the other two were returned undelivered. An order of publication of notice was issued concerning four of the Newman descendants, including the two whose registered letters were returned undelivered. No Newman descendants filed a responsive pleading. On December 81,1980, plaintiffs filed a memorandum dismissing as to all eleven of the Newman descendants. The Trial Court’s Minutes of Proceedings contained an entry on December 31, 1980: “Pltf’s dismissal of Deft’s as per memo filed.”
On January 20, 1983, a settlement and release agreement was executed. The parties to the settlement and release agreement were Azadia Mamoulian, the Cam-macks, St. Louis University, Mercantile Trust Company N.A., and the Boatmen’s National Bank of St. Louis. The Newman descendants were not parties to the settlement. The settlement provided that the will and codicils would be probated pursuant to their terms, and that St. Louis University would pay $200,000 to Azadia Mamoulian, $200,000 to the Cammacks, and $200,000 to plaintiffs’ attorney. St. Louis University also agreed to transfer certain personal property to plaintiffs. In return, plaintiffs agreed to dismiss the will contest with prejudice, and Azadia Mamoulian renounced her interest in the trust provided for in the will.
On January 20,1983, the Circuit Court of St. Louis County entered its order which reads, in pertinent part, as follows: “The Court hereby accepts plaintiffs’ voluntary dismissal of this action with prejudice pursuant to Section 473.083.8, RSMo., and orders that this action is dismissed with prejudice, costs in this action to be taxed against St. Louis University.”
Appellants, Arthur Newman, John Newman and David Newman, filed a Rule 74.32 motion on September 26, 1983. It was denied.
The principal opinion holds that there was a failure of compliance with §§ 473.084 and 473.085, RSMo 1986, and reverses and remands with directions to sustain the Rule 74.32 motion. In my view, reliance by the majority on §§ 473.084 and 473.085 is misplaced and its discussion of §§ 473.084 and 473.085 is obiter dictum.
There are now three methods available for disposition of the will contest: (1) judgment after hearing under § 473.083.7; (2) voluntary dismissal under § 473.083.8; and (3) approval of settlement under §§ 473.084 and 473.085. See Moffitt, Terminating Will Contest Litigations, 30 St. Louis Bar *520J., 19, 22-23 (1984). When a will contest is dismissed under § 473.083.8, the case goes back “to the probate division for it to proceed with the administration of the estate * * * in accordance with the terms of the will * * In re Estate of Simmermon v. Harris, 601 S.W.2d 691, 692 (Mo.App.1980). When a compromise is approved under §§ 473.084 and 473.085, it goes to the probate division for it to proceed with the administration of the estate in accordance with the terms of the compromise and not in accordance with the terms of the will. An agreement for dismissal under § 473.083.8 may be consummated “by consent of all parties not in default” and is enforceable as between them but it may not effectuate a variance from the terms of the will. A compromise under §§ 473.084 and 473.085 does contemplate a variance from the terms of the will and is subjected to additional constraints.
The majority errs when it deals with the constraints of §§ 473.084 and 473.085 in this case because the Settlement and Release Agreement executed January 20, 1983, was never intended to effectuate a variance from the terms of the will and its codicils.1. The agreement expressly provides:
WHEREAS, the parties hereto are desirous of settling and compromising their disputes, claims and causes of action which Plaintiffs have or may have, and that the Will will be probated in the Circuit Court of St. Louis County, Missouri, Probate Division pursuant to the terms thereof.
In sum, appellants were in default after the period of contest of the will had expired. By consent of all parties not in default, the will contest suit was dismissed under § 473.083.8 for settlement between the parties after partial distribution under the terms of the will and its codicils.
I would affirm and remand with directions to proceed under the terms of the will and its codicils.
I respectfully dissent.
. All statutory references herein are to RSMo 1986, unless otherwise indicated.