Andre v. Andre

• Decision Date: 06 June 1921
• Docket Number: No. 21846.,21846.
• Parties: ANDRE v. ANDRE et al
• Court: Missouri Supreme Court

232 S.W. 153

288 Mo. 271

ANDRE v. ANDRE et al

No. 21846.

Supreme Court of Missouri, Division No. 1.

June 6, 1921.

Appeal from Circuit Court, Daviess County Arch B. Davis, Judge.

Suit by George Andre, Jr., against Mine Andre, Louella Andre, and others, to construe the will of Henry Andre, deceased, and to quiet title. Judgment for plaintiff, and Louella Andre appeals. Affirmed.

W. W. Davis, of Chillicothe, and Nat G. Cruzen, of Gallatin, for appellant.

Dudley, Selby & Brandom, of Gallatin, for respondents.

ELDER. J.

This is a proceeding to construe the will of Henry Andre, deceased, and to determine and quiet title to 20 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. (plainiff and respondent herein); four grandchildren, to wit, Cora Milliner, Charles Wells, Ida Tatum, and Clara Taylor (defendants hereing), 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 Dayless county, Mo., comprising 80 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:

"I, Henry Andre, of Jackson township, county of Daviess, and state of Missouri, being of sound mind and memory, do make, publish and declare, this to be my last will and testament, to wit:

"First. All my just debts and funeral expenses shall be first fully paid.

"Second. I give devise and bequeath all of the north half of the southeast quarter section seventeen, township fifty-nine range twenty-six, 20 acres to my son, George Andre, Jr.

"Third. I give devise and bequeath to Byrdia L. Majors all of the south one-half of the southeast quarter of section seventeen (17) township fifty-nine (59) of range twenty-six (26).

"Fourth. I give, devise and bequeath to my daughter, Mary L. McKeag all of the east half 20 acres, of the northeast quarter of the southeast quarter of section seventeen (17) township fifty-nine (59) range twenty-six (26).

"Fifth. I give, devise and bequeath to my daughter, Delia Brown, all of the west half, 20 acres of the northeast quarter of the southeast quarter of section seventeen (17), township fifty-nine (59) of range twenty-six (26).

"Sixth. 1 give, devise and bequeath to my son, Charlie H. Andre's heirs five dollars. "Seventh. I give, devise and bequeath to my daughter Lucy E. Well's heirs one dollar each. "Seventh. I give and bequeath to my beloved wife Mine Andre, all of the aforesaid real estate during her lifetime.

"All of the above land is in Jackson township, Daviess county, state of Missouri.

"In witness whereof, I have hereunto set my hand and seal this 28 day of Feb. A. D. 1903. "Henry Andre. [Seal.]"

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 80 acres (which is called 20 acres), and the west one-half of which 80 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 20 acres devised, respectively, to Mary L. McKeag and Delia Brown, was part of the same land devised to plaintiff George Andre, Jr.; that the south 40 acres of land actually owned by the testator was devised to three different children, while the north 40 acres actually owned by him was not devised at all; that a latent ambiguity is manifest in the said will, which will require the aid of outside evidence to remove; that the said will should be construed as devising to plaintiff the north half of the southeast quarter of the northeast quarter of the said section 17, to defendant Byrdia L. Majors the south half of the southeast quarter of the northeast quarter of said section, to defendant Mary L. McKeag the east half of the northeast quarter of the southeast quarter of said section, and to defendant Delia Brown the west half of the northeast quarter of the southeast quarter of said section. The count closes with a prayer for construction of the will accordingly.

The second count alleges that plaintiff is the owner in fee simple of the north half of the southeast quarter of the northeast quarter of the said section 17, but that defendant Mine Andre is entitled to a life estate therein; that defendants each claim and assert some title, estate, or interest in the said land, which is adverse and prejudicial to the title of plaintiff, wherefore it is prayed that the court "try, ascertain and determine the estates, title, and interests of the plaintiff and of the defendants, and each of them, of, in, and to the said real estate, and by its decree to adjudge, determine, settle, quiet, and define the respective rights, titles, interests, and estates of the plaintiff and defendants to said real property."

All of the defendants except Carrie A. Barner and Louella Andre, though served personally or by publication, made default. Defendant Carrie A. Barner filed a disclaimer. Defendant Louella Andre, having first filed a demurrer, which was overruled, then answered by a general denial.

The record shows that a jury was waived by both parties, and trial was had before Hon. Arch B. Davis, judge of the circuit court for Daviess county. Defendants offered no evidence, but at the beginning of the trial objected to the introduction of any evidence upon the ground that the petition did not state facts sufficient to constitute a cause of action. This objection was overruled by the court.

Plaintiff, to sustain the issues on his part, introduced in evidence a plat book of original entries and several deeds tending to prove the acquisition by Henry Andre of the S. E. ¼ of the N. E. ¼ and the N. E. ¼ of the S. E. ¼ of section 17, township 59, range 26, comprising in all 80 acres.

Mrs. Mine Andre, widow of Henry Andre testified as to the relationship to the sale Andre of the various parties to the suit, a to the ownership and possession by the de ceased of the land acquired as above mentioned, and as to the ownership by him at the time of his death of no other land.

L. B. French, farmer and justice of till peace, 72 years of age, testified that he wrote the will of the deceased at the latter's home and under his direction; that he had had "very little" experience in drawing wills— believe this is the third one"—but that la had written several deeds; that he did no have much education; that he thought Henry Andre was "an average enlightened man" that the conversation of Mr. Andre sounder like he was a German, as he spoke brokenly

"Q. When you got there, did Mr. Andre tell you what he wanted you to write in the will as to his property? A. Yes, sir.

"Q. What, if anything, did he tell you about what you should write in the will about Charlie Andre? (Objection by counsel for defendants objection overruled; exception saved.) A. He said he would give Charlie Andre's daughter $5

"Q. What, if anything, did he say about the north 20 acres of land? (Objection; overruled exception saved.) A. He said to give that to his son George.

"Q. How did he say that? Tell the court as near as you can the words he used and the direction he gave you. (Objection; overruled exception saved.) A. He first told me that hie wife should have the use of the place as long as she lived, and at her death George got the north 20.

"Q. Who got the south 20 of that? A. I believe Birdie Andre.

"Q. That is Birdie Majors? A. Yes, sir.

"Q. What did he tell you to do with the south 40? A. He divided it up the same way but I can't recollect how he named it out.

"Q. Who, if anybody, did he say to give the west 20 of the south 40 acres to? A. I think to Delia Brown.

"Q. Do you remember who he said to give the east 20 of the south 40 to? A. I believe to his daughter, Mary McKeag.

"Q. How did you get the description of these various 20 acres of laud that you wrote in the will? A. We had the deed there, and George Andre was calling it off part of the time, and I was part of the time.

"Q. Do you remember whether he called to you the description of George's land or not, or how you got the description of the north 20 of the north 40? A. Got it from the deed.

"Q. Were you or were you not using the deeds by which the land was conveyed to him as a model, and trying to make the description according to the deeds? A. Yes, sir.

"Q. Do you know whether or not you did write it then as it was in the deed or not? A If I made a mistake, done it ignorantly; 3 didn't know it."

R. W. Burge, who lived a mile from Henry Andre's farm, testified, that the deceased had owned and lived on the N. E. ¼ of the S. E. ¼ and the S. E. ¼ of the N. B. 14 of section 17, and had owned no other land. that for 15 years he (the witness) had owned the 80 acres described as the S. ½ of the S. E. ¼ of section 17, adjoining the Andre land on the south; that for 30 years his father, J. W. Burge, had owned the 40 acres lying...