Cohen v. Herbert

• Decision Date: 01 July 1907
• Citation: 104 S.W. 84,205 Mo. 537
• Parties: COHEN et al. v. HERBERT et al.
• Court: Missouri Supreme Court

104 S.W. 84

205 Mo. 537.

COHEN et al. v. HERBERT et al.

Supreme Court of Missouri, Division No. 2.

July 1, 1907.

1. WILLS—CONSTRUCTION—ESTATE CREATED—TENANCY IN COMMON.

Under Rev. St. 1899, § 4600 [Ann. St. 1906, p. 2499], providing that every interest in real estate, if granted or devised to two or more persons other than executors and trustees or husband and wife, shall be a tenancy in common, unless expressly declared in the grant or devise to be a joint tenancy, a devise of land to testator's

two daughters, jointly, created an estate in common, and not a joint tenancy.

2. WILLS—PROBATE—FOREIGN PROBATE—COLLATERAL ATTACK.

Where a foreign will was executed by testatrix while unmarried, passing an interest in real estate located in Missouri, and after her death while married the will was admitted to probate in the state of her domicile, and it was executed and proved as prescribed by the Missouri laws, and a duly authenticated copy of the will and probate decree was filed in the recorder's office of the county in Missouri where such real estate was located, and no action was begun within five years to contest the probate, as required by Rev. St. 1899, §§ 4622, 4623 [Ann. St. 1906, pp. 2509, 2515], testatrix's heirs in a subsequent action of ejectment were not entitled to collaterally attack the probate decree establishing the will, on the ground that the will was revoked by testatrix's marriage both under the laws of Missouri and of testatrix's domicile.

3. SAME—PROBATE DECREE—EFFECT.

A will having been admitted to probate in a court of probate jurisdiction, the probate decree is a judicial act binding on all the world until set aside in the manner prescribed by law.

Appeal from St. Louis Circuit Court, Jas. R. Kinealy, Judge.

Action by Samuel H. Cohen and another against Julia Herbert and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Herman A. Haeussler and Harry H. Haeussler, for appellants. Rowell & Zumbalen, for respondents.

GANTT, J.

This is an action in ejectment to recover two-eighths of the premises known as No. 305 North Broadway, in the city of St. Louis, Mo., being a lot of 29 feet on the west side of Broadway, by a depth of 102 feet, the south line thereof being 28 feet north of Olive street, and for partition thereof between the parties. The parties in interest are all the surviving children of Hyam H. Cohen, deceased, under whom they all claim. The first count is in the ordinary form for ejectment. The second count alleges that the plaintiffs and defendants Julia Herbert and Elizabeth Henriques are owners in common of said premises, the plaintiffs and Elizabeth Henriques each owning one-eighth thereof and defendant Julia Herbert owning five-eighths thereof; that defendant Richard J. Herbert is the husband of Julia Herbert, and defendant Peter Oakes the tenant in possession under a lease from Julia Herbert; that Julia Herbert's interest is subject to a deed of trust securing two notes for $9,000 each, one of them being payable to each of the plaintiffs; that Hyam H. Cohen, the father of plaintiffs and of defendants Julia Herbert and Elizabeth Henriques, died owning said premises on May 10, 1874, and by his will devised the same to defendant Julia Herbert and her sister, Victoria Cohen; that said Victoria died intestate on May 7, 1876, leaving as her sole heirs at law the plaintiffs and the defendants Julia and Elizabeth; that defendant Julia has, ever since her sister's death, collected the rents and income, and has failed and refused to account to plaintiffs for their portions of the same; and prays for partition and an order of sale. Defendant Elizabeth Henriques made default.

The answer of defendant Oakes admits his possession of the premises as tenant of Julia Herbert, and denies all other allegations of the petition. The answer of Julia and Richard J. Herbert admits that they are husband and wife, admits the tenancy of Oakes under said Julia, and denies all other allegations of the first count of the petition. It admits that Hyam H. Cohen, father of the parties, died seised of the premises on May 10, 1874; admits that said Julia has, since her sister Victoria's death, collected the rents; and denies all other allegations of the second count of the petition. Said answer then sets up the following defenses of new matter, viz.: "(1) That said Hyam H. Cohen by his will, duly admitted to probate, devised said premises to his daughters Julia and Victoria, as joint tenants, and that upon the death of the said Victoria defendant Julia Herbert acquired the whole of said property by right of survivorship. (2) That said Victoria Cohen by her will, duly admitted to probate in the state of New York, by a court having jurisdiction of the subject-matter and the parties, an authenticated copy of said will and the probate thereof having been duly filed in the recorder's office of St. Louis county, Mo., devised whatever interest she had in said property to defendant Julia Herbert, and bequeathed to each of the plaintiffs, Samuel H. and Maurice H. Cohen, one-third of the proceeds of the sale of all her bonds, stocks, and property, and that said Samuel H. Cohen and Maurice H. Cohen each received and took the interest given to them by said will. (3) That on February 19, 1875, Victoria Cohen entered into an antenuptial contract with Richard J. Herbert, whereby she conveyed her interest in said premises to Samuel Cohen in trust for her sole and separate use and benefit, free from all rights of her intended husband, and for such other uses as she might from time to time appoint, with power to said Victoria to devise the same or any part thereof by her last will; that on February 23, 1875, said Victoria exercised said power of appointment so reserved, by appointing her interest in said premises to defendant Julia Herbert, in and by her last will and testament. (4) That plaintiffs are estopped to claim any interest in said premises, other than as mortgagees in a certain deed of trust dated July 31, 1876, made by Julia Herbert to secure a loan from each of the plaintiffs; that by said deed of trust, which was signed by plaintiffs as cestuis que trust, they acknowledged Julia Herbert to be the sole owner of the said premises, and acknowledged that the same had been devised to said Julia and Victoria Cohen as joint tenants; and that defendant Julia Herbert, relying upon plaintiff's acknowledgment of her sole ownership, afterwards spent large sums of money in improving said property. (5) That defendant Julia Herbert now is, and for more than 25 years past has been, in actual, open, notorious, exclusive, and adverse possession of the said premises, claiming title to the whole thereof."

The reply denied all the new matter set up in the answer. A jury was waived, and trial had before Hon. James R. Kinealy.

The plaintiffs offered in evidence the will of Hyam H. Cohen, which was duly admitted to probate in the city of New York, July 27, 1874, and an authenticated copy thereof and of its probate filed in the office of the recorder of deeds of the city (then county) of St. Louis, Mo., on September 1, 1874. By said will, the testator devised the property in suit to his "said daughters Julia and Victoria jointly," and he also gave to said Julia and Victoria five twenty-second parts jointly, and his daughter Elizabeth, eight twenty-seconds, his son Samuel, four twenty-seconds, and Maurice, five twenty-seconds of the proceeds of the sale of his other lands, houses, bonds, and stocks. It appears that Victoria Cohen married R. J. Herbert February 24, 1875, and died on May 7, 1876, leaving neither children nor mother nor father surviving her. She was survived by her two brothers, the plaintiffs, and her two sisters, Julia and Elizabeth. On November 14, 1877, the defendant Julia married Richard J. Herbert. At the time of her death Mrs. Victoria Herbert lived in New York, and left a last will and testament which she had executed on February 23, 1875, the day before her marriage to R. J. Herbert was solemnized. After her death this will was duly probated in New York, and in it the plaintiff Samuel H. Cohen was named as one of the executors, and he qualified and acted as such, and the plaintiff Samuel H. and Maurice Cohen each took and received one-third of the said Victoria Herbert's residuary estate as legatees under her said will, besides specific legacies of plate and jewelry. By the said will Mrs. Victoria Herbert devised her interest in the property in question to her sister Julia, and gave one-third of the proceeds of the sale of all her bonds, stock, etc., to her brother Samuel H. Cohen, and one-third to her brother Maurice H. Cohen, and named her brother Samuel H. Cohen and Richard J. Herbert as her executors in New York. On July 31, 1876, the defendant Julia Cohen, now Herbert, borrowed from each of the plaintiffs the sum of $9,000 and executed and delivered to them as security for the same a deed of trust covering the whole of the property in question. Since that time she had regularly paid to the plaintiffs the interest on the loan secured by said deed of trust. The principal of said loan was used by Julia Cohen in the erection of a fivestory building upon the lot in suit. The defendant Samuel H. Cohen attended to the erection of this new building for her. It was finished in 1877, and some time afterwards was destroyed by fire. The defendant R. J. Herbert collected the insurance upon this property for his wife Julia, and she used the insurance money in rebuilding the premises. It also appears that Victoria Cohen and her intended husband R. J. Herbert on February 19, 1875, entered into a marriage contract properly signed and acknowledged by them and recorded in the recorder's office in the then county of St. Louis on March 3, 1875. By this contract Victoria Cohen conveyed to Samuel H. Cohen, as trustee, her undivided one-half interest in the property in suit for the sole and separate...