Bower v. Daniel
| Citation | 95 S.W. 347,198 Mo. 289 |
| Parties | BOWER et al. v. DANIEL et al., Appellants |
| Decision Date | 03 July 1906 |
| Court | United States State Supreme Court of Missouri |
Appeal from Atchison Circuit Court. -- Hon. H. C. Timmonds, Special Judge.
Affirmed.
J. W Peck, H. S. Kelley and John P. Lewis for appellants.
(1) Wills are ambulatory in character, and every will may be revoked by the maker thereof. Two persons may by contract bind each other to devise or bequeath his property to the other, but such compact is not a will. Edson v Parsons, 50 N.E. 265. (2) The wills first made by Daniels and wife, though on one piece of paper, are two instruments. "The result is precisely the same as if like reciprocal dispositions had been made by the husband and wife by means of two separate instruments." In re Diez's Will, 50 N.Y. 94. (3) There is nothing in the instrument or in the pleadings or evidence to show that any interest in the estate of either passed to the other in the life of the testators. The instrument is testamentary only. Schumaker v. Schmidt, 4 Am. Rep. 135. (4) It was not a joint, mutual or reciprocal will. The disposition by one testator was not conditional upon, or in consideration of the disposition made by the other. If the two instruments had been made on two pieces of paper, although contemporaneously made, it could not be pretended that the wills were mutual or reciprocal. In re Diez's Will, supra; Schumaker v. Schmidt, supra. (5) There is nothing in the will to support the idea of a compact. No agreement to make mutual wills is alleged, and if alleged such agreement could only be proved by writing. Gould v. Mansfield, 103 Mass. 408. (6) The instrument could only operate as will of one, to-wit, the one dying first. The husband gave the wife no inheritance. No one can claim anything through her under the will. The husband's will, as he survived, could not operate; the devise to his wife became a nullity. Her will as to him was personal and not upon condition that he should hold it in trust for or appoint it to any use. The accumulations from the use of her property during his life were his without condition, and were not disposed of by the will, for the will as to him, if construed as a compact, only bound his estate. The other provisions in the instrument were purely testamentary and therefore revocable. All the husband was to do for the devise to him was to give his wife a life estate if she survived him. Even if the compact was irrevocable, the husband has performed his condition. He could do no more than bind himself to will his estate to her for her life, if she survived. That, according to defendants' contention, he has done. (7) If the instrument was a will, it was revocable. If not a will, it was a contract, and the parties at the time the instrument was executed must have had the capacity to contract with each other, and it must contain all the elements of a contract. The joint will was made May 2, 1889, when both parties were under the common law disability. Section 4335, Revised Statutes 1899, has not removed this disability. 60 Mo.App. 475.
Hunt & Bailey and Geo. R. Ellison for respondents.
(1) The trial court had jurisdiction to set aside the order, and having done so, there is no bill of exceptions in the record. 1. To make a bill of exceptions filed during a term of court a part of the record, there must be an order of record making it such. The mere filing will not have that effect. Fulkerson v. Houts, 55 Mo. 301; Johnson v. Hodges, 65 Mo. 589; Roush v. Cunningham, 163 Mo. 173; Wilson v. Railroad, 167 Mo. 323. 2. The fraudulent bill was filed during term time, and order making it a part of the record, relied on by appellants, was set aside in its entirety at the same term. The trial court had jurisdiction to set it aside, because any order or proceeding of a term of court remains in fieri during that term. A court retains plenary power, during a term, to review and revise any order made by it at such term. What it has jurisdiction to do it has jurisdiction to undo, during the same term. Crawford v. Railroad, 171 Mo. 68; State v. Gartrell, 171 Mo. 489; Woodard v. Woodard, 84 Mo.App. 330; McGonigle v. Bresnen, 44 Mo.App. 423; Eddie v. Eddie, 138 Mo. 599; Baker v. Schutte, 85 Mo.App. 57. It was not an improper exercise of power to set aside the order on the ground that the bill of exceptions had been surreptitiously obtained. Railroad v. Culberson, 72 Tex. 384; Weir v. Hoss, 6 Ala. 885; State v. Howell, 117 Mo. 310; Baker v. Railroad, 122 Mo. 547. (2) If, as in the case at bar, an aged and infirm husband and wife, each owning property, make a will together for the purpose of distributing their property among their children after their death, and if it appears that the provisions of the will, made by one of them, were induced or influenced by the provisions made by the other, and that but for the bequests of the one, the other would have made a different will; or if such will was the result of mutual concessions and compromises between them, then on the death of one, especially if the survivor accepts the provisions of the will in his favor, equity will enforce the other provisions against him, or if he be deceased, then against all who hold under him, with notice or without value. In such case neither the Statute of Frauds nor the marriage relation will prevent a court of equity, on application of the beneficiary children under the will, from following the property wherever it may be, if not in the hands of innocent purchasers for value. And even before the death of the survivor, if it appears he is threatening to dispose of his property in violation of the provisions of the will, equity will enjoin him on application of the children, who would be prejudiced thereby. Carmichael v. Carmichael, 72 Mich. 75; Bruce v. Moon, 57 S.C. 60; Van Duyne v. Vreeland, 12 N.J.Eq. 142; Robinson v. Mandell, 3 Cliff. (U.S.) 169; Edson v. Parsons, 155 N.Y. 555; Murphy v. Whitney, 140 N.Y. 541.
This is a suit prosecuted by plaintiffs, husband and wife, against the brothers and sisters of Mrs. Bower, to recover her interest in the estate, real and personal, of which her father, William Daniel, died the owner and in possession.
William Daniel, the father, and Margaret Daniel, the mother of the parties to this controversy, lived near Westboro, in Atchison county, Missouri, each owning real and personal property in his and her own right, the father owning eight different tracts of land, containing eighty acres each, also some town property and considerable personal estate. The mother owned eighty acres of land in Page county, Iowa, and some town property consisting of houses and lots, and some personal property. They were well advanced in years and had nine children, between whom they desired to distribute their property, and, to that end, on the 2nd day of May, 1899, they executed a joint will, written on one paper and signed by both parties, disposing of their said property separately; the father giving to the wife all his property, both real and personal, during her life; then to be divided, as therein directed, among his children, giving their daughter, Maggie Bower, lot 2, describing it; then giving to all their children all the rest of their property, to be divided equally, except that Ambrose and George Daniel should have $ 500 less, each. The fifth clause of the will, which is the mother's part thereof, gives to her husband, William Daniel, all of her property, both real and personal, during his life; then, at his death, to be divided equally among her children.
On the 24th day of December, 1894, Margaret Daniel departed this life, and on the 14th day of January, 1895, the will was probated as her last will and testament; and James Stull qualified as executor, and administered her estate pursuant to said will, the father receiving the benefit of the life estate given to him in her property by said will, being the rent and profits arising therefrom.
On the 7th day of Septemer, 1895, the father, William Daniel, executed and delivered to each of his children a deed conveying to each a certain tract of land therein described containing eighty acres, being the land owned by him in his own right at the time of the execution of said will, except that he did not convey any part of his land to his daughter Hannah J. Sawyer. He conveyed to Maggie Bower the tract of land that was given to her by said will. These conveyances were intended as a division and distribution of his real estate (except town property, which he did not convey) among his children. He reserved a life estate and the rents and profits arising from said lands during his life.
On the 22nd day of February, 1895, the father, William Daniel, executed his last will and testament, revoking all other wills made by him, by which he gave to his daughter, Mrs. Hannah Jane Sawyer, the sum of five dollars, and all the balance of his property of whatever kind and nature and wherever located he gave in parts to his sons Absalom, Andrew J., James, George W. and William A., and his daughters Nancy Belle Lytle, Mollie Bailey and Maggie Bower, it being his intention that all his children except Hannah Jane Sawyer should share alike in the division of all his property.
On the 26th day of April, 1900, said father, William Daniel departed this life, owning his said real estate, except what he conveyed to his said children, and a large personal estate. Shortly after his death the will made by himself and his wife was admitted to probate as his last will and testament, and afterwards, on the day of , his said will, dated the 22nd day of February, 1895, was found and filed in the probate court of Atchison county, Missouri, for the purpose of being probated, and pending said proceeding to...
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