Andre v. Andre
| Citation | 232 S.W. 153,288 Mo. 271 |
| Parties | GEORGE ANDRE, JR., v. MINE ANDRE et al.; LOUELLA ANDRE, Appellant |
| Decision Date | 06 June 1921 |
| Court | United States State Supreme Court of Missouri |
Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.
Affirmed.
W. W Davis and Nat G. Cruzen for appellant.
(1) A court of equity has no jurisdiction to reform a will on account of a mistake of the draftsman. Goode v Goode, 22 Mo. 518; 34 Cyc. 924, sec 3. (2) The admission of the testimony of witness French as to the intention and declarations of the testator were inadmissible over the objections of the defendant. 40 Cyc. 1436. (3) Only an equitable title can pass from the United States Government by an entry of public lands; the fee only passes by patent. 32 Cyc. 1029; Carman v. Johnson, 20 Mo. 108; Mosher v. Bacon, 229 Mo. 350; Wilcox v. Phillips, 199 Mo. 297; Gibson v. Choteau, 13 Wall. 92. (4) Having alleged that he was "the owner in fee simple," plaintiff has limited his proof to a naked legal title and cannot show an equitable title in support of that allegation. Stewart v. Land Co., 200 Mo. 281. (5) Suits brought to ascertain and determine the title under Sec. 2535, R. S 1909, are similar in nature to ejectment suits. Machine Works v. Bowers, 200 Mo. 235; Graton v. Land & Lumber Co., 189 Mo. 337; Griffin v. Nicholas, 224 Mo. 330. Plaintiff must recover, if at all, on the strength of his own title, and not because of any weakness or want of title in the defendant. Large v. Fisher, 49 Mo. 307; Funkhouser v. Peck, 67 Mo. 19; Seimers v. Schrader, 14 Mo.App. 346; Creech v. Childers, 156 Mo. 338; Burnham Heirs v. Ritt, 132 Mo. 468; Marvin v. Elliott, 99 Mo. 616; Ratliff v. Graves, 132 Mo. 468; West v. Bretell, 115 Mo. 653; Mather v. Walsh, 107 Mo. 121; Foster v. Evans, 51 Mo. 39; Horwood v. Tracy, 118 Mo. 631. (6) Plaintiff must show a complete chain of title from the government to himself or the admitted common source of title, and the conveyances constituting the chain must each be sufficient to convey a legal title, or he must show such possession as to constitute a legal title. 10 Am. & Eng. Ency. Law (2 Ed.), 484, subd. 3; Finley v. Babb, 144 Mo. 403; Dollarhide v. Mabary, 125 Mo. 197; Harvey v. Anderson, 129 Mo. 206; Robinson v. Clagett, 149 Mo. 153; 32 Cyc. 1329. Where plaintiff seeks to recover on paper or record title he must show regular chain of title from Government. 15 Cyc. p. 36, note 47; Harvey v. Anderson, 129 Mo. 208. (7) A will not established as such by the probate court or other court having jurisdiction, is not admissible as evidence. Creasy v. Alberson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Barnard v. Bateman, 76 Mo. 414; Snuffer v. Howerton, 124 Mo. 637; Farris v. Burchard, 242 Mo. 9. (8) A court of equity has no jurisdiction to construe a will which affects only real estate. 40 Cyc. pp. 1838 to 1840. Where a will is definite and certain and not ambiguous, no outside or extraneous evidence is admissible; it must be interpreted from the language of the will, without the aid of such extraneous evidence. 40 Cyc. 1427; Garth v. Garth, 130 Mo. 462; In re McVeigh's Estate, 181 Mo.App. 566; Heaton v. Dickson, 153 Mo.App. 312. Where the intention of the testator is expressed in the will in clear and unequivocal language there is no need for judicial construction of interpretation. 40 Cyc. 1382.
Dudley, Selby & Brandon for respondent.
(1) The evidence discloses that Henry Andre had owned and lived on this land for a great many years; that it was the only land he owned; that it had been his homestead for a long time and that the plaintiff and all the defendants claim under him, so that the evidence shows him to be the common source of title. Under this state of facts everything connected with the title prior to Henry Andre, the common source, is immaterial, both in ejectment and suits to quiet title. Stewart v. Lead Belt L. Co., 200 Mo. 291; Harrison Machine Works v. Bowers, 200 Mo. 235; Brown v. Brown, 45 Mo. 415; Fellows v. Wise, 49 Mo. 352; Ebersole v. Rankin, 102 Mo. 498; Finch v. Ullman, 105 Mo. 263; Graton v. Land & Lumber Co., 189 Mo. 335; Gage v. Cantwell, 191 Mo. 708. (2) The will on its face calls for extrinsic evidence that the ambiguity may be removed. It is the well established rule in this State that extrinsic and parol evidence is always admissible to show what land a testator owned at the time of making his will and at his death, and it is presumed that he intended to devise his own land and not that of another. Board of Trustees v. May, 201 Mo. 367; Thompson v. Thompson, 115 Mo. 67. Where it is clear on the face of the will that the testator has not accurately or completely expressed his meaning by the words he has employed, and it was also apparent what words or their substance have been omitted, these words may be supplied to effectuate the intention as collected from the context. Thompson v. Thompson, 115 Mo. 68; 1 Jarman on Wills (6 Ed.), 487; 6 Waits, Actions & Defenses, 382-383; Patch v. White, 117 U.S. 227, 29 L.Ed. 860. (3) The ambiguity is apparent on the face of the will, and the many questions thus arising are of such a character that the rule is universal that the ambiguity may be removed by extrinsic evidence. Board of Trustees v. May, 201 Mo. 368; In re Estate of Boeck, 160 Wis. 577, L.R.A. 1915E, p. 1008; McMahan v. Hubbard, 217 Mo. 624; Myher v. Myher, 224 Mo. 631. It is presumed the testator meant to dispose of his whole estate and not to die intes-state as to any part of it. To prevent the estate passing partly by will and partly by descent, words may be supplied, transposed or rejected, and where this can be done descriptions will be so corrected and interpreted as to include the whole property. McMahan v. Hubbard, 217 Mo. 624; Robards v. Brown, 167 Mo. 447; Willard v. Darrah, 168 Mo. 670; Whitcomb v. Rodman, 156 Ill. 116; Hurst v. Von DeVeld, 158 Mo. 248; Watson v. Watson, 110 Mo. 171; Simmons v. Cabanne, 177 Mo. 336; Meiners. v. Meiners, 179 Mo. 614; Grace v. Perry, 197 Mo. 560; Thompson v. Thompson, 115 Mo. 67; Bryant v. Garrison, 150 Mo. 668; Presnell v. Headley, 141 Mo. 194.
This is a proceeding to construe the will of Henry Andre, deceased, and to determine and quiet title to twenty acres of land claimed by plaintiff as devisee under the said will.
The petition is in two counts. The first count thereof alleges that Henry Andre died in March, 1906, leaving surviving him his wife, Mine Andre (defendant herein); four children, to-wit, Byrdia L. Majors, Mary L. McKeag and Delia Brown (defendants herein), and George Andre, Jr. (plaintiff and respondent herein); four grand-children, to-wit, Cora Milliner, Charles Wells, Ida Tatum and Clara Taylor (defendants herein), being the only children and heirs of a deceased daughter, Lucy Wells; and Louella Andre (defendant and appellant herein), the sole child and heir of a deceased son, Charles H. Andre. Proceeding, the petition alleges that at the time of the death of said Henry Andre he was seized and possessed of the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter of Section 17, Township 59 of Range 26 in Daviess County, Missouri, comprising eighty acres, and that he owned no other land; that on February 28, 1906, he had made a will, which was duly proved and admitted to probate in the Probate Court of Daviess County on May 14, 1906, the same being as follows:
The petition further alleges that the said will "is so vague, uncertain and indefinite that it is impossible for the various legatees thereunder to determine what, if any, real estate they take;" that the terms thereof are "so conflicting that it is impossible to reconcile the provisions thereof with the property owned by the deceased at the time of his death," in the following particulars, to-wit That under the will plaintiff, George Andre, Jr., is devised eighty acres (which is called twenty acres), the west one-half of which eighty acres had never been owned by the testator, but in truth and fact belonged to one John W. Burge; that the land devised to Byrdia L. Majors had never been owned by the testator, but in fact belonged to one R. W. Burge; that the twenty acres devised respectively to Mary L. McKeag and Delia...
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