Stowe v. Stowe

• Citation: 140 Mo. 595,41 S.W. 951
• Parties: STOWE v. STOWE et al.
• Decision Date: 06 July 1897
• Court: United States State Supreme Court of Missouri

41 S.W. 951

140 Mo. 595

STOWE v. STOWE et al.

Supreme Court of Missouri, Division No. 2.

July 6, 1897.

EQUITY — JURISDICTION — WILL PROCURED BY FRAUD.

Plaintiff sought to charge defendants as trustees of his portion of his father's estate, on the grounds that his father's will, under which defendants claimed, was procured by fraud and imposition, and that testator had not the mental capacity to execute a will, and alleged that such will was admitted to probate during plaintiff's minority, and that he did not learn of such facts and frauds until more than five years after attaining his majority. Held, that equity was without jurisdiction, under Gen. St. 1865, p. 530, providing (section 29) that any person interested may, within five years after the probate of any

will, by petition to the circuit court, contest the validity thereof, and (section 31) that otherwise the probate of such will shall be binding, saving to infants, married women, and persons of unsound mind a like period of five years after the removal of such disability.

Appeal from circuit court, Jackson county.

Suit by M. Julian Stowe against Fannie R. Stowe and others. From a judgment in favor of defendants, on demurrer to the petition, plaintiff appeals. Affirmed.

Charles H. Nearing, for appellant. Ess & Georgen, for respondents.

GANTT, P. J.

This was a judgment for defendants upon demurrer to the petition by the circuit court of Jackson county. Plaintiff declined to plead further, and appealed. The petition is as follows: "M. Julian Stowe, Plaintiff, vs. Fannie R. Stowe, Amarylis Stowe Cook, and Frank R. Cook, her husband, Defendants. Now comes the above-named plaintiff, and, for second amended petition, states: That he is the only son of Asa H. Stowe, deceased. Plaintiff was born May 13th, 1859. That plaintiff was at all times hereinafter set out, and still is, a resident of the state of Vermont. That shortly after his birth his mother died, and that after the death of his mother, and some time about the year 1868, his father married the defendant Fannie R. Stowe, and from such marriage defendant Amarylis Stowe Cook was born. That plaintiff's father died on or about the 11th day of October, 1876, and left, surviving, his only heirs, this plaintiff, the defendant Amarylis Stowe Cook, and his widow, the defendant Fannie B. Stowe. That at the time of the death of said Asa Stowe he was the owner of the following described property, situated in Jackson county, Mo., to wit: All of lots 6, 7, 8, block 4, McDaniel's addition to Kansas City, Mo.; also an undivided one-half of lots 1, 2, 3, and 6, Chatanoff & Stowe's subdivision of lots 1 and 3, block 3, Ranson & Hopkins' addition to Kansas City, Mo. That, at the time of the death of said Asa H. Stowe, the title to lots six, seven, and eight, block four, McDaniel's addition to Kansas City, Mo., was in one L. S. Stowe, the brother of said Asa H. Stowe; but that said L. S. Stowe had no interest of any nature whatsoever, nor claimed any interest, in said property, but the same belonged to said Asa H. Stowe; and that the said L. S. Stowe, at or about the time of the death of said Asa H. Stowe, or within a few days thereafter, gave a quitclaim deed of said property to defendants Fannie R. Stowe and Amarylis Stowe Cook. That at the time of the death of said Asa H. Stowe the title to lots one, two, three, four, five, six, Chatanoff and Stowe's subdivision of lots one and three, block three, Ranson and Hopkins' addition, was in defendant Fannie R. Stowe, but that said Fannie R. Stowe was not the owner of the same, nor had any interest therein, but in truth and in fact said property belonged to said Asa H. Stowe. Plaintiff further stated that the said defendant Fannie R. Stowe, for the purpose of defrauding this plaintiff, who was at the time an infant under the age of 21 years, out of his right share and inheritance and his portion of his father's estate, and acquiring the same to herself and her child, Amarylis Stowe Cook, at about the time of the death of said Asa H. Stowe, and after he had lost consciousness of what was transpiring, and was unable to exercise any volition or express a wish to make any disposition of his property, well knowing that the said Asa H. Stowe was incapable of disposing of his property, wrongfully and willfully caused a mark to be made to an instrument purporting to be the will of said Asa H. Stowe as the mark and signature of said Asa H. Stowe, well knowing that said instrument was not the will of said Asa H. Stowe, and that he gave no assent to his mark or signature being placed thereto. Plaintiff further states that such instrument, purporting to be the will of said Asa H. Stowe, purported to give the defendants Fannie R. Stowe and Amarylis Stowe Cook all of the property of said Asa H. Stowe, except the sum of $10, which was given to plaintiff. Plaintiff further states: That defendant Fannie R. Stowe, for the purpose of further carrying out her plans and designs of defrauding this plaintiff of the property aforesaid, a few days after the death of the said Asa H. Stowe, to wit, on or about the ____ day of October, 1876, presented such pretended will to the clerk of the probate court for probate as the last will and testament of said Asa H. Stowe; and that thereafter, to wit, on the ____ day of October, 1876, said probate court, relying upon the truth of said parties that said will was the last will and testament of said Asa H. Stowe, admitted the will to probate; and by reason of the same the said defendants Fannie R. Stowe and Amarylis Stowe Cook became possessed of the property herein first above described, and have at all times retained possession of the same, and have retained the rents and profits arising therefrom. That, by reason of the will, the said defendants became the trustees for and in behalf of the plaintiff for an undivided one-third of the above-described property and the rents arising therefrom. Plaintiff states that all the above facts were known to defendant Amarylis Stowe Cook. Plaintiff further states that he was ignorant of the facts and frauds relative to said will until it was too late to contest the same, and did not learn of them until the year 1892, and that, as soon as he learned of said fraud, he instituted an investigation to ascertain the truth of the case. Plaintiff further states that defendant Cook is the husband of the defendant Amarylis Stowe Cook; that, in equity and good conscience, plaintiff is entitled to an undivided one-third of all the above-described property, and also one-third of all the rents and profits received by said defendants from said property since said ____ day of October, 1876; that he has no remedy at law. Wherefore plaintiff prays that the court decree that defendants be declared trustees for plaintiff for an undivided one-third interest of the above-described property, and that the title to the same be adjudged and decreed as vested in the plaintiff, and that defendants be ordered and adjudged to account to plaintiff for an undivided one-third of all the profits and rents received from said property; that an accounting be ordered to ascertain the amount of such rents and profits, and that the amount so ascertained to be due plaintiff be declared a lien upon defendants' interest in said property, and judgment rendered therefor, and for costs herein expended, and for such other and further remedies as may be equitable and just."

As the demurrer presents the defense in full, it is also subjoined. Defendants demur because: "First. The court had no jurisdiction to set aside the probate of said will of Asa H. Stowe, deceased, for fraud or otherwise; nor has this court jurisdiction to hold the defendants or any of them, trustee or otherwise, by contract or for fraud or otherwise; nor can the land or any of it, nor can the rents and profits or any part thereof, be held or adjudged by this court to belong to the plaintiff as trust property or otherwise. Second. The second amended petition does not state facts sufficient to constitute a cause of action. Third. The second amended petition shows plaintiff has no title to subject-matter of the suit, either at law or equity, either to the land or any part thereof, nor the rents or profits or any part thereof, nor to any personal liability of these defendants or either of them or any of them, because the plaintiff's title to the real estate became vested in these defendants by their possession continuous from November, 1876, they claiming to own the same, there being no suit for possession, and no suit was begun to contest said will until the filing of this suit; and, from the facts set up in the second amended petition, plaintiff's title was devested by the statute of limitation (of ten years) out of him, and vested in these defendants, and said will of Asa H. Stowe, having been probated in 1876, by the facts stated in said second amended petition, is now incontestable, either for the purpose of being overthrown as a will or for the purpose of holding these defendants as trustees by reason of the frauds charged. Fourth. Plaintiff's cause of action, as set up in said ...