Board of Ministerial Relief of Cumberland Presbyterian Church v. Drummond

• Decision Date: 19 February 1902
• Citation: 66 S.W. 930,167 Mo. 54
• Parties: BOARD OF MINISTERIAL RELIEF OF CUMBERLAND PRESBYTERIAN CHURCH et al., Appellants, v. DRUMMOND et al
• Court: Missouri Supreme Court

66 S.W. 930

167 Mo. 54

BOARD OF MINISTERIAL RELIEF OF CUMBERLAND PRESBYTERIAN CHURCH et al., Appellants, v. DRUMMOND et al

Supreme Court of Missouri, First Division

February 19, 1902

Appeal from Scotland Circuit Court. -- Hon. Nat. M. Shelton, Special Judge.

Affirmed.

Ben Eli Guthrie and J. M. Jayne for appellants.

(1) The parties are entitled to the judgment that was in fact rendered by the court. Their rights can not be defeated by the mistake of the clerk in entering the judgment or the error of the attorney in drafting the decree. Or, in other words, is the clerk greater than the court? (2) This is not an assault upon the judgment the court rendered; it is an action to reform the record, so that it may show the judgment which in fact and in truth was rendered, and not, as it does now show, another and different judgment which the court never rendered. (3) Where a court of law makes a mistake in calculating the amount for which judgment should be given equity will relieve against the mistake, even at a term subsequent to the entry of the judgment. Mistake is a cause for relief in equity. It is one of the grand divisions of equity. Wilson v. Broughton, 50 Mo. 17; Case v Cunningham, 61 Mo. 434; Boon v. Miller, 16 Mo 457; Partridge v. Harrow, 99 Am. Dec. 643. The last is directly in point. "Courts of equity will reform and correct judgments and other records." Pomeroy, Eq. Jur. (2 Ed.), sec. 1376, p. 2122. (4) In this case, the court by its judgment intended to do and did do a certain thing, but the record shows that it did a different thing, consequently, equity should make that record show and preserve the thing that was intended to be done and was done, as it does not do in this case. But, on the contrary, it shows and preserves something that was not in fact done and was not intended to be done. Cooper v. Duncan, 20 Mo.App. 359; Partridge v. Harrow, 27 Iowa 96; s. c., 99 Am. Dec. 643; Rust v. Ware, 6 Gratt 50; s. c., 52 Am. Dec. 100. Courts of equity will grant relief against a mistake in a verdict by which the jury omitted to give interest. 14 Am. Dec. 709. (5) Parol evidence is competent to show the mistake in the entry of the decree. Moberly v. Nave, 67 Mo. 549; Collier v. Easton, 2 Mo. 145. (6) The pleadings in the case show no basis for the judgment rendered. While the petition calls for the construction of the will as to the order of payments and the priority of certain legacies and the right of certain parties to take, it nowhere raises the question as to whether the legacy should be paid out of the personalty or out of the realty.

Smoot, Mudd & Wagner for respondents.

OPINION

BRACE, P. J.

At the February term, 1898, of the Scotland Circuit Court, the following decree was duly entered of record in said court:

"In the Circuit Court of Scotland County February term, 1898.

"James C. Drake, Executor of the Estate of Francis Drake, deceased, Plaintiff,

"vs.

"Mary R. Drake, Mary B. Woods, Redman H. Woods, Francis I. Woods, Millie J. Woods, the Trustees of the Bethel Congregation, the Trustees of the Memphis Congregation of the C. P. Church, the Board of Ministerial Relief of the C. P. Church of Evansville and the Board of Education of the C. P. Church of Nashville, Defendants.

"Now at this day this cause coming on to be heard and the parties all appearing by their respective attorneys, and all and singular the matters and facts involved in this litigation are submitted to the court for consideration and judgment, and the court after having heard the evidence and the argument finds that said Francis Drake in his lifetime made his will, and that afterwards in 1893 departed this life, and that said will was duly probated in the probate court of Scotland county, Missouri, and the plaintiff is the executor of said will. The court further finds that Francis Drake intended by his said last will, a copy of which is filed with the petition in this cause, to give to his wife, defendant Mary R. Drake, the net income of all the property of which he was possessed for and during her natural life, and the court so construes said will and finds and directs said executor to pay to her according to the terms of said will the net income of all said property during her lifetime.

"The court further finds that said Francis Drake intended after the death of his wife, Mary R. Drake, to have paid from his personal property to Mary B. Woods, Redman H. Woods, Francis I. Woods and Millie J. Woods, each the sum of $ 200, according to the terms of said will, and the court construes said will to mean that after the death of his wife, Mary R. Drake, this legacy to the Woods heirs should first be paid before any other legacies and out of his personal estate.

"The court further finds that said Francis Drake intended after the death of his wife, Mary R. Drake, that the trustees of the Memphis congregation of the Cumberland Presbyterian church should have and enjoy lots eight and nine in block one, Mety's addition to the town, now city, of Memphis, Scotland county, Missouri, to be held and used for a parsonage, and if they become disorganized then the Presbytery should have said property and control the same; and further, after the death of his said wife he willed and bequeathed to the trustees of the Memphis congregation of the C. P. Church the sum of $ 500 to be paid out of his personal property according to the terms of said will, and the court construes and finds that it was the intention of said Drake that said sum should be paid out of his personal property, and after the payment of the legacies to the Woods heirs before mentioned, and the court so construes and finds and directs said executor to so pay the same, said bequest to be subject to the conditions contained in said will.

"The court further finds that the deceased gave to the trustees of the Bethel congregation of the Cumberland Presbyterian church of the Kirksville Presbytery the sum of $ 400 with certain restrictions in said will mentioned, and the court further finds that it was the intention of said deceased that said bequest should be paid after the death of his wife, Mary R. Drake, and out of any personal property that he might then own or possess and that same should be paid after the bequest to the Woods heirs and after the bequest to the Memphis congregation, and the court so construes said will and so finds and so directs said executor to pay the same in the distribution of said estate.

"The court further finds that by the terms of said will said Drake gave and bequeathed to the defendant, the Board of Education of the C. P. Church of Nashville, Tenn., $ 500, subject to certain restrictions in said will, and the court finds that it was the intention of said Drake that same should be paid out of his personal estate after the payment of the legacies hereinbefore described and after the death of his wife, Mary R. Drake, and the court so finds and so construes said will and so directs the said executor to pay the same in the final distribution of said estate.

"And the court doth further find that the said deceased, Drake bequeathed all the remainder of his personal estate to the Board of Ministerial Relief of the C. P. Church, subject to certain restrictions in said will, and the court finds that said residuary clause was only intended to convey the remainder, if any, of his personal estate that he might own at the...