Applegate v. Smith

• Decision Date: 31 October 1860
• Citation: 31 Mo. 166
• Parties: APPLEGATE et al., Appellants, v. SMITH et al., Respondents.
• Court: Missouri Supreme Court

31 Mo. 166

APPLEGATE et al., Appellants,

v.SMITH et al., Respondents.

Supreme Court of Missouri.

October Term, 1860.

1. The question whether after-acquired real estate passes by a will is to be determined by the law of the place where such property is situate; so also the forms and solemnities required to give the will its due attestation and effect.

2. Where a will, executed in Kentucky according to the law of Missouri, is recorded in the former state, and an authenticated copy of such record is recorded in the proper county in this state, a copy of this last record furnishes conclusive proof of the will.

3. By a will executed in Kentucky a testator devised to his wife his whole estate, real, personal and mixed, “wherever situate.” After the date of the will the testator acquired land in Missouri. Held, that the title to said land passed to the widow under the will; that such title would not be divested by a deed of election executed by such widow declaring that, in case it should be determined that her husband died intestate as to said land, she elected to take one-half thereof subject to debts.

Appeal from Jefferson Circuit Court.

Noell & Beal, for appellants.

I. A will of real estate, under the statute of wills 32 Hen. VIII., is a conveyance and cannot operate on real estate not owned by the testator at the time of the making thereof. The present law of Missouri does not and the statute of 1835 did not change this rule. The statute of 1807, repealed in 1835, can not be considered by the court now. The present will is different from the will in the case of Liggat v. Hart, 23 Mo. ___. The will was not proved according to the law and should have been excluded. The will should have been proved in the county in which the land lay to affect the after-acquired estate. What does the language of the act of 1835--“all his estate, real, personal and mixed”--mean? It does not refer to the time of his death, but to the time of making the will. The court should not have permitted the copy of the will to be read in evidence. It was not a copy proven up according to our law. The defendants virtually abandoned the recorded copy by taking the deposition of Duncan. This did not remedy the defect. The probate in Kentucky should have shown that Applegate was of sound and disposing mind. Proof by one subscribing witness only is insufficient. (7 Mo. 589.) The proof by Duncan is defective. (2 Atk. 56; 7 Mo. 592.) A copy of the probate of a will in another state is of no effect in this state. (10 Mo. 543.) It must be admitted to probate in this state. The voluntary affidavit of Duncan was inadmissible. The after-acquired property was not embraced in the will. (Story, Confl. of Laws, 479, 474, 52, 62, 430, 363, 373; 9 Pet. 483; 2 Greenl. Ev. § 671.) The election made by the widow had the effect of rejecting the provisions of the will in her favor, and gave her only one-half of the land in case of intestacy, and without any descendants in being capable of inheriting. The election should stand and the condition be rejected. The election to take in opposition to the will is a renunciation of all the benefits of it. (2 Sto. Eq. § 1079, 1085, 1077; 2 Williams on Exec. 1236, 1241; 7 Dana, 5; 6 B. Mon. 435; 3 J. J. Marsh. 365; 1 Dana, 203; 3 Bibb, 448; 10 B. Mon. 3; 3 B. Monr. 174.)

Frissell, for respondents.

I. The paper purporting to be the will of Applegate was executed so as to pass real estate in this state. It embraced all the estate of which he died seized. The last probate was sufficient under our law.SCOTT, Judge, delivered the opinion of the court.

The plaintiffs were the heirs at law of Thomas Applegate, who was a resident of the state of Kentucky, and died there after having made his will, by which he gave and devised to his wife Martha his whole estate, real, personal and mixed, wherever situated. After the making of this will the testator purchased the land in dispute situated in this state. The will was admitted to probate in Kentucky after it had been proved according to the laws. Our statute authorizes non-residents, who hold lands in this state, to devise them by a will executed and proved according to the laws of this state, and [provides] that authenticated copies of such wills and the probate thereof, being recorded here, shall be evidence in the same manner as wills probated in this state. The original probate taken in Kentucky not satisfying our law in relation to the probate, the will was proved a second time according to the requirements of our law and recorded. An authenticated copy of this will and probate last made in Kentucky was recorded here, and a copy of it given in evidence, which was excepted to. The defendants also gave in evidence the deposition of the...