Clark v. Carter
| Decision Date | 22 December 1906 |
| Citation | 98 S.W. 594,200 Mo. 515 |
| Parties | CLARK v. CARTER, Trustee, et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.
Reversed and remanded.
Orchard & Livesay and O. L. Haydon for appellants.
(1) The petition does not state a cause of action. It does not allege that the estate of Thomas Harber was finally settled, nor is it anywhere alleged that the debts of said estate have been paid off and discharged, nor does it allege that there were no other lands or sufficient other lands out of which to pay the legacies, nor does it set out provisions of the will of Thomas Harber, nor does it set out covenants or recitals of the executrix's deed, all of which must be recited before the court could render judgment on the pleadings. Before a judgment could be rendered on a petition it must state all the facts necessary to inform the court before the court could pass upon it without evidence, and if it fails to come up to that standard, it is bad on demurrer. Every substantial fact which the plaintiff in order to recover must prove, he must also allege in his petition so that an issue can be made thereon. Sidway v. Land & Live Stock Co., 163 Mo 342. Matters informally stated are aided by verdict, but the omission of the essential averments cannot be so supplied unless the petition contains terms sufficiently general to comprehend them by fair and reasonable intendments. Town of Clinton v. Williams, 53 Mo. 141; Coleman v. Ins Co., 69 Mo.App. 566; Hyatt v. Royal Pro. Assn., 106 Mo.App. 610; Overton v. Overton, 131 Mo. 559. A pleader should determine in his own mind the legal effect of the written contract or other document that underlies his case and plead it by its legal effect as he understands it and as he proposes to maintain it, otherwise a petition is demurrable. Estes v. Shoe Co., 155 Mo. 577; Anderson v. Gaines, 156 Mo. 664; Reilley v Cullen, 159 Mo. 322; Schiffman v. Schmit, 154 Mo. 204. (2) The plaintiff first started out by filing a bill of interpleader and he may contend that it still amounts to that. Our contention is, of course, that he has departed from that in his amended petition. Carico v. Tomlinson, 17 Mo. 499. To entitle one to maintain a bill of interpleader he must be a mere disinterested stakeholder or trustee, impartial in so far as his conduct may influence the judgment to be ultimately rendered, and he must act in good faith and have reasonable cause for a real doubt as to which of the claimants is entitled to the funds. Little v. St. Louis Union Trust Co., 94 S.W. 890; Hartstock v. Christman, 90 S.W. 116; Arn v. Arn, 81 Mo.App. 133; Hathaway v. Fay, 40 Mo. 540.
J. N. Burroughs and M. E. Morrow for respondent.
(1) It is not necessary for the petition to allege that the estate of Thomas Harber had been finally settled, nor that the debts had all been paid, nor that there were other lands out of which to pay the legacies, nor that it should set out the provisions of the will in full, nor recite the covenants of the executrix's deed. The rule of pleading in an action to construe a will is greatly relaxed. An allegation that a controversy has arisen between the plaintiff and the executor regarding his duties and plaintiff's rights under the will, that doubts have arisen as to its proper construction and that danger to plaintiff's rights was apprehended, unless equity interfered and gave proper directions to the executor, states a good cause of action and will be upheld on demurrer. First Baptist Church v. Robberson, 71 Mo. 326. A party interested in the provisions of a will, or required to take some action, or perform some duty, arising under the will, may have the instrument construed by the courts before acting at his peril. Mersman v. Mersman, 136 Mo. 244. Even a creditor of a legatee or beneficiary under the will may resort in the first instance to a court of equity for a construction of the will and ask for an application of the income of such beneficiary or legatee to a payment of his debt. Bank of Commerce v. Chambers, 96 Mo. 459. A trustee may ask a construction of a will by a circuit court, the declaration of a trust and its enforcement by a sale of the lands. Hamer v. Cook, 118 Mo. 476. An allegation that a deed has been executed, referring to the book and page where it is recorded, incorporates the deed in the pleading, making it admissible in evidence, and will be upheld on demurrer. Elliott v. Bristow, 185 Mo. 15. (2) The question raised in point 1 of appellants' brief is eliminated by the pleadings themselves. It is alleged in the petition that Margaret M. Harber undertook to convey the land to respondent under a power delegated to her as executrix under the will of Thomas Harber. There are sufficient allegations in the petition itself to bring that provision of the will and the instrument sought to be construed, before the court for construction. But in case it should be held not, the petition will be aided by the answers filed and they certainly contain full allegations of that matter. Ins. Co. v. Tribble & Pratt, 86 Mo.App. 546; Bank v. Pettit, 85 Mo.App. 499; Casler v. Chase, 160 Mo. 418; Newton v. Newton, 162 Mo. 173. (3) Nor is it material by what name the bill be designated, whether it be deemed an action to construe a will, an interpleader, or an ordinary bill in equity asking for affirmative relief. A misnomer of the pleading will not defeat respondent's right to relief. Jewett v. Boardman, 181 Mo. 647; Moberly v. Trenton, 181 Mo. 637. In a bill in the nature of an interpleader, the complainant is not required, as in strict interpleader, to be an indifferent stakeholder, without interest in the subject-matter. 5 Pomeroy's Equity Jurisprudence (Ed. 1905), sec. 60. (4) In equity, demurrer confesses the facts and the equities that arise from those facts. Williams v. Gerber, 75 Mo.App. 18; Dodson v. Lomax, 113 Mo. 555; Verdin v. St. Louis, 131 Mo. 26; Live Stock Co. v. Bank, 95 Mo.App. 251. Since the demurrer admits all the material allegations of the petition, if, taken as a whole, it states a cause of action, the demurrer must be overruled. Plant Co. v. Railroad, 115 Mo. 613. The court should give pleader the benefit of every reasonable intendment. Hood v. Nicholson, 137 Mo. 400. Facts which are necessarily implied from the direct averments in a pleading will be treated as having been pleaded. Weaver v. Harlan, 48 Mo.App. 319. Demurrer does not reach matters defectively stated and should be overruled. State ex rel. v. Edmonson, 71 Mo.App. 172. Objection to a pleading because of indefiniteness should be made by motion to make more definite and certain, and not by demurrer. Cockerill v. Stafford, 102 Mo. 57; McAdam v. Scudder, 127 Mo. 345; O'Connor v. Koch, 56 Mo. 253. After verdict, the petition should not be construed most strictly against the pleader, but should be construed most liberally with a view to substantial justice. Saxton v. Railroad, 98 Mo.App. 494; Bank v. Assurance Co., 106 Mo.App. 114; Munchow v. Munchow, 96 Mo.App. 553. (5) The administrator of the estate of Margaret M. Harber, the trustee in deed of trust, also trustee under the will, and all beneficiaries under the will of Thomas Harber, were proper parties to the determination of the matter in controversy. All of said parties were properly in court, and in determining the question raised on the pleadings, the answer, cross-bill or interplea filed by any of these parties must be considered. First Baptist Church v. Robberson, 71 Mo. 326; Butler v. Lawson, 72 Mo. 227; Haydon v. Marmaduke, 19 Mo. 403. (6) It was the duty of the court to render judgment adjusting the rights and equities of all parties, both plaintiff and defendants. R. S. 1899, sec. 767; Pettingill v. Jones, 30 Mo.App. 280; McCord, Admr., v. McCord, 77 Mo. 166.
This cause is brought to this court by appeal on the part of G. H. Carter, trustee, and A. C. Donovan, administrator of the estate of Margaret H. Harber, deceased, from a decree and judgment of the circuit court of Howell county, Missouri. The defendants, G. H. Carter, trustee, and A. C. Donovan, administrator of the estate of Mrs. Harber, interposed a demurrer to the amended petition filed by the plaintiff, which demurrer was by the court overruled. Defendants Carter and Donovan refusing to further plead, judgment was rendered upon the face of the pleadings.
The vital question involved in this controversy being the correctness of the action of the trial court in overruling the demurrer, it is therefore essential to a proper understanding of the correctness of such ruling to here reproduce the petition. It was as follows:
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