Watson v. Alderson

• Decision Date: 06 December 1898
• Citation: 48 S.W. 478,146 Mo. 333
• Parties: Watson et al., Appellants, v. Alderson et al
• Court: Missouri Supreme Court

48 S.W. 478

146 Mo. 333

Watson et al., Appellants, v. Alderson et al

Supreme Court of Missouri

December 6, 1898

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

H. C Lackland and C. W. Wilson for appellants.

(1) The plaintiff's judgments were liens upon the interests of these sons in the real estate at their father's death and at the date of the probate, in common form, of the alleged will. She is a "person interested in the probate of the will" in the sense of the statute, and is consequently entitled in this proceeding to demand that the alleged will shall be established in solemn form, before her liens or apparent title shall be unseated or divested thereby. Smith v. Bradstreet, 16 Pick. 264; In re Langevins Will, 47 N.W. 1133; Ryan v. Railroad, 64 Tex. 239; Stebbins v. Lathrop, 4 Pick. 42; Nolan v. Johns, 108 Mo. 431; Farrar v. Parker, 3 Allen, 556; Zumwalt v. Zumwalt, 3 Mo. 270; Murphy v. Murphy, 2 Mo.App. 156; State v Horner, 16 Mo.App. 191; Hilliker v. Francisca, 65 Mo. 598; Loehner v. Hill, 19 Mo.App. 143; In re McCune's Estate, 76 Mo. 200; Bryant v Allen, 6 N.H. 116; Pearce v. Gould, 143 Mass. 235; Wiggen v. Swett, 6 Metcalf, 197; Dickey v. Malechi, 6 Mo. 182; Benoist v. Marvin, 48 Mo. 48; Lamb v. Helm, 56 Mo. 432; Hughes v. Burris, 85 Mo. 665; Bidwell v. Swank, 84 Mo. 471; Duty's Estate, 27 Mo. 43; Kenrick v. Cole, 46 Mo. 85; McIlrath v. Hollander, 73 Mo. 113; R. S. 1889, sec. 8888 and 8890; Lynn v. Guardian, 1 Mo. 410; Garland v. Smith, 127 Mo. 567; Norton v. Paxton, 110 Mo. 456; Lilly v. Tobbein, 103 Mo. 477; McFadden v. Catron, 120 Mo. 252; Maddox v. Maddox, 114 Mo. 35; Carl v. Gabel, 120 Mo. 283. (2) The plaintiffs, Fannie A. Durrell, Anna M. Weems and Robert F. Alderson, are children and heirs at law of the decedent, Benjamin A. Alderson. The alleged will invests them with a different title and interest in the estate from what they would receive as heirs at law in the absence of a will. For, while the alleged will gives each of them a one seventh share of the estate, it subjects their interest in the real estate to the management and control of the executors named until such time as they (the executors) shall agree to sell and partition the proceeds. While on the other hand, in the absence of a will, they would at once, on the death of the father, have been invested with an untrammeled title to an undivided one seventh each in the land. They are clearly persons interested in the probate of the alleged will under our statute. R. S. 1889, sec. 8916; Smith v. Hutchinson, 61 Mo. 83; Smithers v. Jackson, 23 Md. 273; Turner v. Timberlake, 53 Mo. 371; Russell v. Eubanks, 84 Mo. 82; Schorr v. Caster, 120 Mo. 409; Small v. Field, 102 Mo. 104; Watson v. Watson, 110 Mo. 164; Nichols v. Boswell, 103 Mo. 151; Long v. Timms, 107 Mo. 512; Murphy v. Carlin, 113 Mo. 112; Redman v. Barger, 118 Mo. 568; Shumate v. Bailey, 110 Mo. 411; Ringquest v. Young, 112 Mo. 25; Drake v. Crane, 29 S.W. 990.

T. F. McDearmon, W. C. Scarritt, Theo. Bruere & Son, W. F. McEntire and Frank Hagerman for respondents.

(1) A mere judgment creditor of a child, who receives nothing under a parent's will, is not a "person interested in the probate of the will" within the meaning of the statute authorizing the contest of wills. Shepard's Estate, 170 Pa. St. 323; Hickman's Estate, 101 Cal. 609; Sanborn's Estate, 98 Cal. 103; In re Hamilton, 76 Hun. 200; Franke v. Shipley, 22 Ore. 104; Barkley v. Donnelly, 112 Mo. 561; Redfield on Wills, 538; Carl v. Gabel, 120 Mo. 283; Catholic Church v. Tobbein, 82 Mo. 418; Lilly v. Tobbein, 103 Mo. 477; Roberts v. McMillan, 9 Lea. 571; Lynch v. Lynch, 1 Lea. 526; Wynne v. Spiers, 7 Humph. 394; Middleton v. Williams, 47 N. J. E. 587; In re Brown, 47 Hun. 366; McDonald v. White, 130 Ill. 493; Taff v. Hosmer, 14 Mich. 249; Williams on Executors [Am. Notes], p. 399; Middleditch v. Williams, 2 Dickens, 575; Ryan v. Railroad, 64 Tex. 239; Enloe v. Sherrill, 6 Ired. 212; Besancon v. Brownson, 39 Mich. 388; Carrol v. Huie, 21 La. An. 561; In re Benton's Estate, 10 Wash. 533; In re Ruppaner, 37 N.Y.S. 429; Jele v. Lemberger, 45 N.E. 279; Luther v. Luther, 122 Ill. 558. (2) The appellants, Fannie A. Durrell, Anna M. Weems, and their husbands, and R. F. Alderson, children of Benjamin A. Alderson, have no right to contest the will in question because they receive their full shares under the will, and it in no particular prejudices their interests. Courts will not entertain and decide mere abstractions. State ex rel. v. Robinson, 54 Mo. 203; 1 Williams on Executors [Am. Notes], p. 399.

Brace, J. Gantt, C. J., Burgess and Robinson, JJ., concur in paragraph one, and Gantt, C. J., Burgess and Williams, JJ., concur in paragraph two of the opinion. Robinson, Marshall and Sherwood, JJ., expressing their views in separate opinion. Marshall, J., concurring. Sherwood, J., concurs.

OPINION

In Banc.

Brace J. --

This is an appeal from a judgment of the circuit court of St. Charles county, sustaining a demurrer to plaintiff's amended petition.

On or about the fifth day of May, 1895, Benjamin A. Alderson late of said county, deceased, departed this life leaving surviving him as his only heirs at law, his children the plaintiffs Fannie A. Durrell, Anna M. Weems and R. F. Alderson, and the defendants David P. Alderson, Samuel B. Alderson, Bettie G. Watkins, William A. Alderson and Mabel H. Alderson.

Afterwards on the fifteenth of May, 1895, an instrument in writing was duly admitted to probate in the probate court of St. Charles county, as the last will and testament of said deceased, as follows:

"Know all men by these presents, that I, Benjamin A. Alderson, of the city and county of St. Charles and State of Missouri declare the following to be my last will and testament:

"First.

"I desire that all my debts be paid as soon as possible.

"Second.

"I give and bequeath to my beloved wife, Mary L. Alderson as her own absolute property, all my furniture, bedding, carpets, stoves, pictures and kitchen utensils, at my residence at the time of my death. I also give and bequeath to my said wife, for and during her natural life, my home place, being my residence, and the lots connected therewith, on 6th and Perry streets, in the city of St Charles; in lieu of any dower or any interest my wife has or might have in any of my real and personal estate, I also give and bequeath to my said wife, Mary L. Alderson, for and during her natural life, annually, the sum of six hundred dollars, so that my executors shall pay her at the end of every six months the sum of three hundred dollars.

"Third.

"All of my personal estate, except such as is herein bequeathed to my wife, shall go and belong in equal parts to my children, Anna M. Weems, S. B. Alderson, Bettie G. Watkins, Fanny A. Durrell, R. F. Alderson, Mabel H. Alderson, the wife of my son W. A. Alderson, and W. Elmira Alderson, the wife of my son D. P. Alderson, excepting the sum of one dollar to be given to each of my two sons W. A. Alderson and D. P. Alderson.

"Fourth.

"My executors shall take charge of, rent out and have exclusive control over my lands in the Point prairie and also my lands in the Cul de Sac bottoms, below the city of St. Charles, and shall pay the above six hundred dollars annually out of the income thereof, to my said wife, Mary L. Alderson; and the balance of said income, less whatever my executors may think necessary to meet current expenses, shall each year be given to my said children equally, except to my sons, W. A. Alderson and D. P. Alderson, whose wives shall be entitled to receive and retain their shares respectively, each one seventh. After the death of my wife all my real estate shall go and be divided as follows: To Anna Weems, S. B. Alderson, Fannie A. Durrell and R. F. Robinson each one seventh thereof; to Mabel H. Alderson, wife of my son W. A. Alderson, and W. Elmira Alderson, wife of my son D. P. Alderson, each one seventh thereof for her sole use and benefit; to my executors one seventh thereof in trust for my daughter, Bettie G. Watkins, and after her death then said one seventh to be divided among her children then living; my executors to have full control over and disposition of said one seventh interest, to sell the same and re-invest the proceeds thereof, the income and proceeds of said interest, to be given to my daughter from time to time, for her support, as my executors may deem advisable and necessary.

"To my sons, W. A. Alderson and D. P. Alderson, I give no interest in my real estate. But it is my wish that my executors shall remain in control and manage all my real estate until all of them agree to sell the same or any part thereof, excepting my residence and lots connected therewith, in St. Charles, Missouri, bequeathed to my wife, aforesaid. I authorize my executors to at any time sell and convey all or any part of my lands and real estate, excepting my said residence and lots, with the same force and effect as I could have conveyed the same, and the proceeds of any and all such sales shall be divided according to the interest and rights of the legatees as herein provided; provided that my executors are charged with the payment to my wife of said sum of six hundred dollars annually during her life.

"Fifth.

"I hereby appoint my sons, D. P. Alderson, R. F. Alderson and S. B. Alderson, executors of this my last will and testament, with the right of the majority to act, and request that they be not required to give bond as such executors.

"Sixth.

"I hereby revoke all former wills.

"In witness whereof I have hereunto set my hand and affixed my seal in the presence of the subscribing witnesses, this sixth day of April, 1893.

"Benjamin Alderson (L. S.)

"We attest the above...