Board of Relief of C. P. Church v. Drummond

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

66 S.W. 930

167 Mo. 54

BOARD OF RELIEF OF C. P. CHURCH et al. v. DRUMMOND et al.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

JUDGMENTS — ENTRY — CLERICAL ERROR — ORAL EVIDENCE.

1. A clerical mistake, made in the entry of a decree, cannot be established by oral evidence.

2. It was immaterial, as affecting the rule that a clerical mistake in the entry of a decree cannot be established by parol evidence, that the relief was sought by a bill in equity, instead of by application by motion.

Appeal from circuit court, Scotland county; Nat M. Shelton, Special Judge.

Bill by the Board of Relief of the C. P. Church and others against Mary B. Drummond and others. From a decree for defendants, plaintiffs appeal. Affirmed.

Ben Eli Guthrie and J. M. Jayne, for appellants. Smoot, Mudd & Wagner, for respondents.

BRACE, P. J.

At the February term, 1898, of the Scotland county 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 (8) and nine (9), in block one (1), 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...