Allen v. Jessup

• Decision Date: 02 February 1917
• Docket Number: No. 18131.,18131.
• Citation: 192 S.W. 720
• Parties: ALLEN v. JESSUP et al.
• Court: Missouri Supreme Court

192 S.W. 720

ALLEN v. JESSUP et al.

No. 18131.

Supreme Court of Missouri, Division No. 2.

February 2, 1917.

Rehearing Denied February 17, 1917.

Appeal from Circuit Court, Andrew County; Alonzo D. Burnes, Judge.

Suit by Josie Allen against Wilson C. Jessup and another. Judgment for plaintiff, and defendants appeal. Reversed.

Charles F. Booher and Isaac R. Williams, both of Savannah, and Vinton Pike, of St. Joseph, for appellants. W. K. Amick and C. F. Strop, both of St. Joseph, for respondent.

WALKER, J.

This is a suit brought in the circuit court of Andrew county to set aside a deed. Upon a hearing before the court judgment was rendered for the plaintiff, from which defendant appeals.

The action was brought by Josie Allen, née Jessup, against her brothers, Wilson C. and Charles E. Jessup, to set aside and annul a deed made to them by their mother, Elizabeth A. Jessup, to a certain 80-acre tract of land in Andrew county described in the petition.

In 1881 Elizabeth A. Jessup and her husband removed from Indiana to Missouri. Prior thereto Judith Locke, the mother of Mrs. Jessup, had given the latter $1,000 in money. This money was invested by Elizabeth A. Jessup in the land in controversy, and the title was taken in her own name. The purchase price of the land was $2,400, and, being unable to pay more than $1,000 in cash, she executed her note for $1,400, the balance due, to George Large, from whom she had purchased the land, and gave him a mortgage on same to secure the payment of the note.

Cicero H. Allen, the husband of plaintiff, testifying as her agent, says:

That in June, 1886, he received a letter at his home in Alba, Jasper county, Mo., from his mother-in-law, Elizabeth A. Jessup, then residing near Rochester, Andrew county, Mo., requesting him to meet her at St. Joseph, Mo., that she wanted to see him as to what could be done [we use his words] "with reference to the mortgage [made by her to Large] and with reference to the Locke estate, of which I was executor. On the 26th of June, 1886, I met Mrs. Jessup and her husband in the Union Depot at St. Joseph, and the condition of the mortgage on the farm and the estate of Judith Locke were discussed. Mrs. Jessup requested me when I returned home to consult my wife [the plaintiff] and ascertain if she would not loan Mrs. Jessup enough money to make up the difference between what she would receive from the Judith Locke estate and what it would take to pay off the mortgage on the farm on the same terms she received the legacy from the Judith Locke estate, that is, her part for life without interest; and she said to tell my wife that, if my wife would loan her the amount of money requested, which she estimated at about $700, she would will her one-half of the land. I returned home and talked over the matter with my wife, and she said she would let her have the money, and authorized me to return to Andrew county and make the loan on these conditions. I returned in June, 1887, and Mr. and Mrs. Jessup and myself came over here and made a final settlement of the Judith Locke estate, and I loaned her (Mrs. Jessup) the $769, that is, the amount required to pay off the mortgage, for her natural life without interest. Mr. and Mrs. Jessup executed a note to my wife in the sum of $769. At the same time there was another note executed by them to my wife for $731.31."

This note explains itself.

These notes, signed by Elizabeth A. Jessup and her husband, and numbered 1 and 2 respectively to distinguish them, are as follows:

(1) "Whereas, I, the undersigned, Elizabeth A. Jessup, have this day received from Cicero H. Allen the sum of $769.00, seven hundred and sixty-nine dollars, I hereby bind myself, my heirs, executors, and administrators, to pay said sum of money above mentioned to Josie Allen without interest at the termination of my natural life."

(2) "Whereas Judith Locke by her last will and testament bequeathed to me the undersigned Elizabeth A. Jessup the sum of $1,500.00 for the term of my natural life, and at my death to descend to her granddaughter Josie Jessup, now Josie Allen, absolutely in fee simple: Now, therefore, to carry out the provisions of said will and to secure the payment of said sum of money so bequeathed or so much thereof as I have come in possession of, I hereby bind myself, my heirs, executors, and administrators, by this obligation to pay the sum of $731.31, seven hundred and 31/100 dollars, to Josie Allen in accordance with the provisions of said will."

At the time of the execution of these notes Elizabeth A. Jessup and her husband executed and delivered a mortgage on the entire tract of land in controversy to plaintiff with a power of sale in plaintiff or her representative to secure the payment of these notes, and same was entered of record in the recorder's office of Andrew county. There is nothing in the record to indicate what disposition has been made of this instrument.

On the 21st day of May, 1897, or almost ten years after the execution of said notes, Elizabeth A. Jessup made a will which was drawn by the said Cicero H. Allen, the husband of plaintiff, and in which he was named as executor without bond. The relevancy of this will as a material fact in the determination of the matter in controversy is such that it becomes necessary to set out the substance of same, as follows:

"It is my will and I hereby direct, that my executor, hereinafter named, after my death, shall pay all my just debts, including the expense of my last sickness, funeral expense, and also including two notes, one of which is for seven hundred and sixty-nine ($769.00) dollars and is dated June 21st, 1887. The other note is for seven hundred and thirty-one and 31/100 ($731.31) dollars, and is dated June 21st, 1887; both of said notes were executed by me and my beloved husband to Josie Allen, and are secured by trust deed recorded in Book forty-nine (49), page two hundred three (203), of the land records, in the recorder's office in Andrew county, and state of Missouri.

"I give and bequeath to my beloved son Wilson C. Jessup the sum of twenty-five ($25.00) dollars, and direct that he take nothing more of my estate.

"I give and bequeath to my beloved son Samuel Jessup, the sum of twenty-five ($25.00) dollars, and direct that he take nothing more of my estate.

"All the rest, residue and remainder of my estate whatsoever, real, personal and mixed, wherever situate, I give, devise and bequeath to my beloved son Charley Jessup and my beloved daughter Josie Allen, in equal parts each to receive one-half.

"I do hereby appoint Cicero H. Allen executor of this my last will and testament, and it is my request that he shall not be required to give bond as such executor.

"I hereby revoke all former wills by me made."

It appears that on the 29th day of September, 1886, which, it will be noted, was subsequent to the meeting of Cicero H. Allen with Mrs. Jessup and her husband at the Union Depot in the city of St. Joseph, he procured an assignment to himself of the note and mortgage theretofore made by Mrs. Jessup and her husband to George Large to secure a portion of the purchase money of the land here in controversy. There is nothing in the record to indicate that Mrs. Jessup ever had any knowledge of this transaction or that she knew she was merely transferring her liability on the Large note to her daughter to secure a debt then owned by the latter's husband. Upon the consummation of the loan on the 21st day of June, 1887, said Allen entered satisfaction on the mortgage which had been assigned to him and released the real estate therein described. Immediately thereafter the mortgage heretofore referred to as having been made by Mrs. Jessup and her husband to plaintiff to secure the payment of the notes for $769 and $731.31 was entered of record. No explanation is offered as to why the latter note was included in the mortgage.

Cicero H. Allen, after having drawn the will of Mrs. Jessup, and its having been formally signed by her and attested by witnesses, was retained in his possession under one pretext and another, notwithstanding Mrs. Jessup's repeated efforts to have the same returned to her. His explanation of his conduct in this regard is that he discovered that Mrs. Jessup desired to destroy the will, and that his wife would not give it up. It is from conduct that we determine character; from the latter we measure credibility. Hence the pertinency of this fact in solving the gravest question confronting us in this case.

Other wills were subsequently made by Mrs. Jessup, but, except as showing her intentions in regard to her property, it is not necessary to discuss the same.

Mrs. Jessup died in May, 1910. Her husband had died a number of years prior thereto. During the last 13 years of her life she lived with her son Charles E. Jessup on the land in controversy, which he was cultivating. About 4 months before her death she conveyed the land to her sons Wilson E. and Charles E. Jessup, the consideration named in the deed being $2,100. The items making up this sum were stated to be the two notes for $769 and $731.31, respectively, secured by mortgage on the land and held by plaintiff; $500 directed by the grantor to be paid to her grandson, Bert Jessup; and $100 to be paid to a Capt. Knickerbocker, who held a second mortgage on the land for that amount. It is to set aside and annul this deed that this proceeding is brought.

I. Counsel for respondent urge that our review be limited to the record proper; the contention being that there is no valid bill of exceptions. If the facts were as stated by counsel an analysis of the act of 1911 (Laws 1911, p. 139) in regard to bills of exceptions would become necessary; but, whatever opinion we may personally entertain as to the utter lack of harmony, under the ordinary rules of construction, between the main portion of this act and its provisos, we do not find it necessary under the facts to construe...