dissenting.
I withdraw my prior filed opinion Concurring in Part and Dissenting in Part and I now respectfully dissent. The majority opinion fails to recognize that only §§ 473.-084 and 473.085, RSMo 1986,1 have counterparts in the Uniform Probate Code, 8 U.L.A. (1983). Section 473.083, is a section unique to Missouri probate law. The abortive attempt of the principal opinion to either blend or blur these three sections makes possible use of the Probate Court for the commission of and legitimization of double-barreled fraud, i.e., defrauding one-third of the heirs of their part of the so-called settlement, and, thwarting the intent of the testatrix to the extent of over $600,-000.
Originally, I concurred in that part of the principal opinion which blends the three statutes and finds in § 473.085 a duty to give notice to the appellant Newmans of the fact that the Mamoulian and Cammack heirs had dismissed their petition against them. However, upon rereading the principal opinion and the Dissent of Donnelly, J., I concluded that, on the authority of these opinions, all that would happen would be that the Newmans would come into court after notice and be told that they are in “default” and are now legally and properly dismissed from the action and that they should return to their homes because their time for contest has expired. It has always been my understanding that , the law should not do exercises in futility.
The first thing that must be determined in this case is what kind of a beast is the order entered by the circuit court. Is it a *521dismissal under § 473.083, or, is it a settlement under §§ 473.084 and 473.085, in accordance with the so-called modern concept of the Uniform Probate Code, or, can it be both. The order appears to be a voluntary dismissal of the action with a purported settlement agreement appended and attached thereto and approved by the circuit court.2
In my opinion, the circuit court order and attached purported settlement agreement only are, and only can be, an attempted dismissal of the action pursuant to § 473.-083.9. The majority, however, would blend or blur the so-called settlement and the dismissal and my brother Donnelly, J., would close his eyes to the purported settlement’s very existence. I submit that doing either makes our probate process a party to fraud. Under appropriate circumstances you can dismiss the action, or, you can file a settlement agreement, but, under these circumstances you cannot do both. See Terminating Will Contest Litigation, 30 St. Louis B.J. 19 (1984). The Uniform Probate Code concept of permitting rewriting the will under § 473.084 and 473.085 is totally inconsistent with the concept of dismissing the will contest and proceeding with probate of the original will as required by § 473.083.9.
Let us examine what you are authorized to do under § 473.083, as far as dismissals are concerned. At no place in § 473.083 is it suggested that anyone can dismiss part or some of the parties to the will contest. Under subsection 6, provision is made for dismissing plaintiffs’ petition if all parties are not served in 90 days, unless good cause be shown. Subsection 6 sets a limit on how much you can stall probate by the filing of will contests. Subsection 8 provides “[a]ny such action may be voluntarily dismissed, after the period of contest has expired, by consent of all parties not in default, at the cost of the party or parties designated, at any time prior to final judgment.” § 473.083.8 (emphasis added),
The action may be voluntarily dismissed, not some or part of it, and not some of the parties, who in this case are nominal defendants having a common interest with pjajnt¡ffs
If the action is dismissed under the provisions of subsection 6 or 8, the judge of the probate division shall proceed with the administration of the estate in accord with his previous order admitting the will to probate or rejecting a will as if the petition had never been filed with the clerk of the circuit court.
Section 473.083.9 (emphasis added).
Clearly, the dismissal contemplated must be either a subsection 6 or subsection 8 dismissal, after which you are required to proceed to probate the original will, not rewrite it. Clearly, the Newmans, who have a common interest with the other plaintiffs, must consent to dismissal of the action and they were not properly dismissed by the secret, partial, purported dismissal.
In my opinion, the Newman heirs, who were made parties defendant by the plaintiffs, Mamoulian and the Cammack heirs, were not in fact in default. The petition said that the Newmans had exactly the same interest in the outcome of the will contest as did the plaintiffs and that they were made defendants only because they had declined to be joined as plaintiffs. Rule 52.04. The true defendants, with an adverse interest to the plaintiffs, could possibly “default,” as we know the word, thereby admitting the allegations of the plaintiffs’ petition. There was no way that the Newmans, named only as nominal defendants, could default to the plaintiffs. They had not, I admit, filed an answer, *522which is the ordinary method of defaulting to an adverse plaintiff. If the plaintiffs prevailed, the Newmans still would share their one-third of the estate. §§ 474.010 and 474.020. This is a probate proceeding where the ultimate goal of the court is to give effect to the intent of the testatrix. It matters not a whit whether the Newmans answer or not.
I know of no requirement in the law that “nominal defendants,” having the same interest as the plaintiffs, are required to plead. They are joined only because they will be barred by the final judgment, whether they stay in or not. The only pleading or “answer” they could file would be to answer “I agree with plaintiff’s petition,” which adds absolutely nothing to the final outcome of the action. And, it is not the policy of the law to require futile actions. While I find no case directly on point, treatment of “nominal defendants” in other respects suggests no necessity for answers or pleadings.
When a party who otherwise would be a plaintiff is joined as a defendant under Federal Rule of Civil Procedure 19, which is substantially the same as our Rule 52.04, the federal courts must “look beyond the pleadings and arrange the parties according to their sides in the dispute” in order to determine diversity of citizenship. City of Dawson v. Columbia Ave. Savings Fund, Safe Deposit, Title & Trust Co., 197 U.S. 178, 180, 25 S.Ct. 420, 421, 49 L.Ed. 713 (1905). “The generally accepted test of proper alignment is whether the parties with the same ‘ultimate interests’ in the outcome of the action are on the same side.” 13B C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 3607 (1984), citing Hamer v. New York Railways Co., 244 U.S. 266, 37 S.Ct. 511, 61 L.Ed. 1125 (1917). The nominal defendant has also been deemed a plaintiff for the purpose of determining venue. Donohoe v. Wooster, 163 Cal. 114, 124 P. 730 (Cal.1912); Comment, Compulsory Joinder of Unwilling Plaintiffs in Civil Actions, 25 Mo.L.Rev. 63 (1960).
[The plaintiff joined as a defendant] must take one of two positions — either that he wishes to participate with the plaintiffs in such recovery as may be had against [the actual defendant], or that he does not desire any benefit from the action. In either view his attitude will be substantially that of a plaintiff. In the one case that of a plaintiff asserting his right to recover; in the other, that of a plaintiff who waives such rights.
It is apparent, therefore, that it is only in a narrow and technical sense that it can be said that the complaint states a cause of action against [the plaintiff made a defendant]. While he was properly made a party defendant... the plaintiffs cannot on the facts alleged obtain any relief against him. Nor can his action in asserting or waiving a right to participate in the recovery affect the rights which the plaintiffs are here attempting to assert against [the actual defendant],
Donohoe, 124 P. at 731 (emphasis added).
Clearly, in a will contest only adverse, not nominal defendants can default. These nominal defendants were never in default.
We now turn to the settlement agreement contemplated by §§ 473.084 and 473.-085. There could be no dismissal against the nonadversarial Newmans who were denominated as nominal defendants because they did not choose to join as plaintiffs.
The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identi*523ty cannot be ascertained or whose whereabouts are unknown and cannot reasonably be ascertained.
Section 473.085.1 (emphasis added).
It further provides:
After notice to all interested persons ... the court in which the controversy is pending, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement....
Section 473.085.3 (emphasis added).
Three things are clear. “All interested persons” must have notice, all “interested persons” must sign the settlement agreement, and the agreement must be approved by the court as fair and reasonable. Certainly, no probate court should either close its eyes to or approve an agreement for distributing property in any manner other than provided by the will. § 473.083.9. To hold otherwise would require this Court and the Probate Court to approve doing after probate that which could not be done in the probate. It would in fact make this Court and the Probate Court parties to defrauding the testatrix’ intent that St. Louis University should have her property. The second barrel of the fraud, if the courts approve the purported settlement, would be approving cutting out the New-mans. If the will contest prevailed, the Newmans would get their full one-third share. Can they be any less entitled to their share of a so-called settlement?
If Missouri courts are going to either close their eyes to distributing $600,000 of probate assets differently than the testatrix intended, or, are going to approve the redistribution of the estate following probate in a manner not possible in probate, then God Save Us From Probate! Following this opinion, who would risk leaving their estates to charity if our courts are going to approve redistribution of the assets to claiming relatives after probate is closed.
The principal opinion, I would suggest, stands as a monument to the perils of probate.
This cause should be reversed and remanded.
The purported dismissal of appellant Newmans should be set aside and vacated. If, after remand, the dismissal of the action then is consented to by “all parties not (then) in default,” § 473.083.8, and the appropriate order is made directing the probate of the original will, § 473.083.9, then, I submit, there can be no issue remaining in the case to be the subject of settlement. I would add this caveat. Settlements are to resolve ambiguities in wills. Beware of settlement agreements which suggest the redistribution of assets in a manner substantially different than that intended by the testator, and, be especially wary of conspiracies to distribute assets after probate in a manner that they could not be distributed in probate.
EXHIBIT A
Order
On this 20th day of January, 1983, this Court is presented with a Settlement and Release Agreement made and entered into by and among plaintiffs, St. Louis University, The Boatmen’s National Bank of St. Louis, N.A., and Mercantile Trust Company, N.A., as Executor of the Estate of Clara A. Drefs, Deceased, Estate No. 62615; and the Court being familiar with *524the evidence herein which has been adduced by deposition and having read and considered the pleadings and representations of counsel, the Court hereby approves the terms and provisions of the Settlement Agreement and Release pursuant to Section 473.084, RSMo.
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.
The Court further orders that a copy of this Order be filed with the Probate Division, Circuit Court of the County of St. Louis, State of Missouri, for inclusion in the file in the Estate of Clara A. Drefs, Deceased, Estate No. 62615 and that said Probate Division may proceed with the probate of said Estate.
S/ Robert G.J. Hoester, Judge
SETTLEMENT AND RELEASE AGREEMENT
This Agreement, made and entered into by and among AZADIA MAMOULIAN, JOHN CAMMACK, ROBERT CAMMACK, WILLIAM CAMMACK, DAVID CAM-MACK and THOMAS CAMMACK (collectively referred to as “Plaintiffs”), Executor of the Estate of. Clara A. Drefs, deceased (the “Executor”), and THE BOATMEN’S NATIONAL BANK OF ST. LOUIS (referred to herein as “Boatmen’s”);
WITNESSETH:
WHEREAS, Clara A. Drefs died a resident of St. Louis County, Missouri, on January 18, 1979. That on or about the 1st day of February, 1979, there was admitted to Probate Court in the County of St. Louis, Missouri, the Last Will and Testament of said Clara A. Drefs dated May 24, 1976, and Codicils dated March 11, 1977, March 27, 1977 and August 14, 1978; (collectively referred to as the Will), Cause No. 62615.
WHEREAS, Plaintiff, Azadia Mamouli-an, sister and heir at law of said deceased, along with John Cammack, Robert Cam-mack, William Cammack, David Cammack and Thomas Cammack, nephews and heirs at law of said deceased, did institute in the Circuit Court of St. Louis County, Missouri, Cause No. 423340, a suit in the nature of a Will Contest for the purpose of having the Will and Codicils admitted to Probate declared to be invalid, null and void and determined not to be the Last Will and Testament of Clara A. Drefs, deceased; and
WHEREAS, each of the legatees named in the Will were joined as Defendants in the Action and S.L.U. has asserted that the Will is the true Last Will and Testament of Clara A. Drefs; and
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.
Now, therefore in consideration of the’ mutual promises and covenants contained herein the parties hereto agree as follows;
1. Plaintiffs shall dismiss their Will Contest Suit, with prejudice, and this Settlement Agreement and Release will be submitted to Division 8 of the Circuit Court of St. Louis County, State of Missouri for approval pursuant to Section 473.083.8, RSMo. The parties will submit to the Court an Order in the form attached hereto *525as Exhibit A and request the Court’s entry of said order. Said order will be forwarded to the Probate Division of the Circuit Court St. Louis County and a copy filed in the Estate.
2. Mercantile Trust, now acting as Administrator, P.D.L., shall act as Executor of the Probate Estate.
3. Immediately and concurrently after the appointment as Executor, said Executor shall seek from the Probate Court an Order of Partial Distribution of One Million ($1,000,000.00) Dollars for Distribution to S.L.U. and an Order of Partial Distribution of all the personal property of Clara A. Drefs to be distributed to S.L.U., and an Order of Partial Distribution pursuant to which all specific bequests will be paid.
4. Within Thirty (30) days after the Order of Distribution, S.L.U. will pay to David G. Lupo, P.C., Attorney for the Plaintiffs the sum of Two Hundred Thousand ($200,000.00) Dollars for Attorney Fees and will pay to the Plaintiffs the sum of Four Hundred Thousand ($400,000.00) Dollars. Azadia Mamoulian shall disclaim any interest in the Unitrust set forth in the Codicil dated March 11, 1977 in the form attached hereto as “Exhibit B” as partial consideration for payment of One-Half (½) of the total amount paid to the Plaintiffs as set forth herein. Until payment is made, said Plaintiffs shall have a lien upon all of the assets of the Estate of Clara A. Drefs.
5.S.L.U. shall distribute certain personal property to Plaintiffs, as they may designate, as set forth in Exhibit “C” attached hereto. S.L.U. shall notify David G. Lupo as Attorney for Plaintiffs of its receipt of said items of personality and will make arrangements to transfer said property to Plaintiffs. Plaintiffs agree they will arrange for said items to be picked up from S.L.U. or from where said items are being stored and they shall pay all costs of picking up said property, of having said property uncrated and crated and delivered to their respective residences. In the event that Plaintiffs choose to store said items after their receipt thereof, Plaintiffs further agree to pay all warehouse charges for said storage.
6. S.L.U. and the Executor of the Estate of Clara A. Drefs shall be liable for all the Estate, Inheritance, Transfer, Legacy, or succession taxes or Death Taxes which may be assessed or imposed with respect to the Estate of Clara A. Drefs or Plaintiffs herein by reason of the payment by S.L.U. to the Plaintiffs and their said Attorney, and by reason of the disclaimer made by Azadia Mamoulian, as set forth in paragraph four (4) above. Said payments shall be made as an expense of the administration and without contribution or reimbursement. All taxable Court Costs incurred by reason of the Will Contest Suit, Cause No. 423340, and taxed by the Clerk, shall be borne by S.L.U.
7. Plaintiffs do hereby release S.L.U., the Executor and Boatmen’s, and S.L.U., the Executor and Boatmen’s do hereby release the Plaintiffs, individually and in all capacities, their respective spouses, heirs, executors, administrators, successors and assigns and anyone claiming through or under them from any and all manner of claims and demands which they may have or claim to have or be entitled to; and Plaintiffs do further release S.L.U., the Executor and Boatmen’s, and said S.L.U., the Executor and Boatmen’s do hereby release the Plaintiffs from all claims or demands, causes of action, known, unknown, disclosed or undisclosed that they may have or believe they have and do hereby release and discharge the other from all further liability or responsibility except as provided for by this Agreement and hereby agree to indemnify and hold harmless the other from any claims or demands whatsoever, including but not limited to: 1) the *526Will or any other Will or Codicils executed by Clara A. Drefs during her life; 2) Any Trust created during the life of Clara A. Drefs or created by her Will; 3) Any Trust of which Clara A. Drefs was a beneficiary during her life; and/or 4) any matter which was raised, or could have been raised, in any of the Pleadings in or documents related to the action or the Estate.
8. Each of the parties acknowledges that this Agreement contains the entire agreement between the parties; that no representations, promises or agreements not herein expressly set forth have been made by either party to induce the other to enter this Agreement, and that this Agreement is intended to be and is a complete settlement of all rights, claims and demands whatsoever, both known and unknown, disclosed or undisclosed, which Plaintiffs may have against S.L.U., the Executor and Boatmen’s, or that S.L.U. the Executor and Boatmen’s shall have against Plaintiffs.
9. All of the parties hereto agree that they will, upon reasonable request execute and deliver any and all further instruments or documents which may be required to effectuate the provisions of this Settlement Agreement and Release.
10. It shall be agreed that all parties shall execute copies of this Agreement and all attachments hereto. This Agreement may be executed in counterparts, so that each individual Plaintiff and other parties herein shall have a copy thereof, each of which will be deemed an original, but which together will constitute one and the same instrument, and shall be binding on all parties hereto in the same manner as though each copy had been executed by all the parties hereto.
11. The parties state that they have entered into this Agreement with the understanding that each and every provision thereof is being relied upon by all of them as a basis for their agreement and they would not have signed the same except for the sum total of its provisions.
12. This Settlement Agreement and Release shall be construed and enforced in accordance with the Laws of the State of Missouri.
13. In the event that an Order is not obtained approving this Settlement Agreement and Release as set forth above this Settlement Agreement and Release shall not take effect, but upon happening of such an event, shall become null and void so that the parties hereto shall continue with the same rights, respectively, as if this Settlement Agreement and Release had not been made; otherwise, this Settlement Agreement and Release remains in full force and effect and each of the terms and provisions herein set forth and made or agreed upon.
14. The Settlement Agreement and Release shall be binding upon and enure to the benefit of the parties and their respective heirs, personal representatives, executors, administrators, successors and assigns.
IN WITNESS WHEREOF St. Louis University has executed this Settlement Agreement and Release, having read and fully understood the provisions hereof.
s/ St. Louis University
s/Attorney
IN WITNESS WHEREOF Mercantile Trust Company, N.A. has executed this Settlement Agreement and Release, having read and fully understood the provisions hereof.
s/Mercantile Trust Co. N.A.
s/Attorney
. See order and appended settlement attached and appended as Exhibit A.