Jourden v. Meier

• Decision Date: 31 October 1860
• Citation: 31 Mo. 40
• Parties: JOURDEN, Appellant, v. MEIER et al., Respondents.
• Court: Missouri Supreme Court

31 Mo. 40

JOURDEN, Appellant,

v.MEIER et al., Respondents.

Supreme Court of Missouri.

October Term, 1860.

1. A judgment of probate of a will is a judicial act, and, like any other judgment of a court of competent jurisdiction, it stands as a judgment binding upon all the world, until set aside in the mode and within the time allowed by law; its validity as a will can not be attacked collaterally.

2. The insufficiency of the proof on which the probate of a will is granted constitutes no valid objection to the admissibility in evidence of the record of probate.

3. A testator leaving him surviving a widow and a son, devised and bequeathed his property as follows: “Third. I give and bequeath to my beloved wife C. J., in lieu of her dower, the plantation on which we now reside, situate in the county of Gasconade and state aforesaid, containing forty acres, during her natural life, and all the live stock, cattle, hogs and sheep by me now owned and kept thereon, also all the household furniture and other items not particularly named and otherwise disposed of in this will, during her natural life as aforesaid, or [ sic] so much thereof as may then remain unexpended, to my step-son C. M., and B. M., stepgrandson, and to their heirs and assigns forever, both to be equal. Fourth. I give and devise to my son J. J. the sum of five dollars to him the said J. J. his heirs and assigns forever.” These were all the granting clauses of the will. Held, that it was the clear intent to disinherit the son J. J.; that by the will the widow took a life estate in the land with remainder to the step-son and step-grandson.

Appeal from Gasconade Circuit Court.

The facts in evidence sufficiently appear in the opinion of the court. The provisions of the will set forth below in the opinion of the court are all the granting provisions, except one with respect to the payment of debts and funeral expenses. The cause was tried by the court without a jury. The court refused the following declarations of law asked by the plaintiff: “1. To make a will a valid instrument to convey title to land, the same must be proven before a clerk or court having jurisdiction of the same, and probate must be granted by such clerk or court and duly certified; and unless probate has been granted on the will produced as the last will and testament of Joseph Jourden, then the defendants acquired no title to the land in controversy by virtue of such will. 2. And unless defendants show that probate has been granted as aforesaid, judgment must be for plaintiff. 3. Unless the defendants show that the clerk or court did grant a certificate of probate, no title was acquired by virtue of said pretended will, and the judgment must be for the plaintiff. 4. If the court should find that the land in controversy was devised to Catherine Jourden during her natural life, and it was undisposed of at her death, and no other disposition of the same was made by said will, then the same at the death of the said Catherine belonged to plaintiff as the heir at law of said Joseph.”

The court rendered judgment for defendants.

Slater & Gale, for appellants.

I. The will was not properly proved. (R. C. 1855, p. 1569, 1571, § 14, 16, 27.) It was not attested by the seal of office as required. (1 Stark. R. 243; 8 Ind. 464; 1 Greenl. § 518; 8 Mo. 421.) If authenticated, the devisee had only a life estate. (2 Jarm. on Wills, 123.)

P. B. Garesché, for respondent.

I. The will was duly probated. The whole record was produced. The neglect of the clerk to append a certificate does not invalidate it. The defendants' assignors took a fee simple in remainder under the will.

NAPTON, Judge, delivered the opinion of the court.

This is an action brought by the plaintiff as heir at law of Joseph Jourden, to recover the possession of a tract of land claimed by the defendants as purchasers from the devisees of said Jourden. The suit was brought in 1859.

Two questions were raised at the trial; the one, respecting the proper construction of the will; the other, as to the right of the defendant to introduce in evidence the paper purporting to be the will of Joseph Jourden as a probated will. The last was of course preliminary to the other, and in truth presents the principal difficulty in the case.

The defendants produced, from the office of the clerk of Gasconade county, a paper purporting to be the original will of Joseph Jourden, with endorsements on the back in the handwriting of J. B. Harrison, then clerk of the county. The will bore date the 23d of December, 1844; was signed by the testator, in his mark, and attested by four subscribing witnesses. To this paper is appended the affidavit of two of the subscribing witnesses that the paper was signed by said Jourden and declared to be his last will and testament, and that the affiants signed the same as witnesses in his presence, and at his request, and in the presence of the rest of the subscribing witnesses, and that they also signed it in their presence and at the request of said testator. To this is added the certificate of the clerk: “Sworn to and subscribed before me this 13th of March, 1845. J. B. Harrison, clerk.” The following is the endorsement on the will: “The last will of Joseph Jourden. Recorded the 5th of May, 1845. Probate granted.” The following entries upon the records of the county court, at its April term, and on the first day thereof, were also read: “The clerk lays before the court his proceedings in taking proof of the last will and testament of Joseph Jourden, deceased, which proceedings were approved by the court.”...