Cohen v. Herbert

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

104 S.W. 84

205 Mo. 537

SAMUEL H. COHEN and MAURICE H. COHEN, Appellants, v. JULIA HERBERT et al

Supreme Court of Missouri, Second Division

July 1, 1907

Appeal from St. Louis City Circuit Court.-- Hon. Jas. R. Kinealy Judge.

Affirmed.

Herman A. Haeussler and Harry H. Haeussler for appellants.

(1)Appellants, at the death of their sister Victoria, were each entitled to the one-eighth of the property in question.The will of the father gave to respondent Julia, and her sister Victoria, the property in common, and not as joint tenants and so the court below held.Lemmons v. Reynolds,170 Mo. 227;Rodney v. Landau,104 Mo. 251;Davis v. Smith, 4 Har.(Del.) 68;sec. 4600, R. S 1899, same as at date of will;2 Wagner'sStat., p. 1352, chap. 140, sec. 12.(2) The will of Victoria made and executed whilst a femme sole was revoked by her subsequent marriage to respondent Herbert, both under the laws of New York and Missouri.Sec. 4607, R. S. 1899, same as at date of will;2 Wagner'sStat. p. 1365, chap. 145, sec. 6;4 N. Y. Rev. Stat. 1901, p. 4889, sec. 44;Brown v. Clark,77 N.Y. 369;Matter of DavisEst., 1 Tuck.(N. Y.) 107;Lathrop v. Dunlop,14 Hun 213;Crum v. Sawyer,132 Ill. 457;Duryea v. Duryea,85 Ill. 41;Swan v. Hammond,138 Mass. 45;Blodgett v. Moore,141 Mass. 75.(3) The antenuptial marriage contract between Victoria and her husband, Richard Herbert, did not prevent the revocation of the will made by her prior to her marriage.Under the statutes a woman's subsequent marriage revokes her prior will without regard to her intention.Hence, the fact that the will was made in contemplation of the marriage, and left the property to the intended husband, does not prevent its being revoked.Fransen's Will, 26 Pa. St. 202;Walker v. Hall,34 Pa. St. 488;Crum v. Sawyer,132 Ill. 457;Duryea v. Duryea,85 Ill. 41;Am. Bd. of For. Mis. v. Nelson,72 Ill. 564.(4) A will to be of any validity as a transfer of title to land, must be a valid will under the laws of the State where the land is located, and must be executed, attested and probated in the manner prescribed by the law of the State where the land is located.Keith v. Keith,97 Mo. 223;sec. 4634, R. S. 1899;Cabanne v. Skinker,56 Mo. 357;Richardson v. DeGiverville,107 Mo. 433;Graven v. Allen,100 Mo. 293.(5) The taking by appellants of the deed of trust executed July 31, 1876, by respondent, Julia Herbert, did not estop appellants from claiming an interest in the property and disputing respondent's sole ownership, for the truth would appear from the reading of the entire deed, and Julia Herbert neither acted upon nor altered her situation because of same.Rosencranz v. Dry Goods Co.,175 Mo. 518;Harrison v. Reynolds,183 Mo. 533;Perkinson v. Hoolan,182 Mo. 189;Knox v. Railroad,58 Hun 517;Nicoll v. Burke,45 S.Ct. 526;Bowers v. Smith, 8 N.Y.S. 226.

Rowell & Zumbalen for respondents.

(1)(a) The judgment of a court of competent jurisdiction, admitting to probate the will of a married woman made while she was single, is, until set aside and annulled in the manner provided by law, a conclusive adjudication that the instrument is the valid and unrevoked will of the testatrix, binding upon all the world.1 Woerner, Am. Law of Administration(2 Ed.), sec. 277;In re Broderick's Will,21 Wall.(U.S.) 503;Simmons v. Saul,138 U.S. 439;Jourdan v. Meier,31 Mo. 40;Dillworth v. Rice,48 Mo. 124;Poplin v. Hawke,8 N.H. 124;Parker v. Parker,11 Cush.(Mass.) 519;Cochran v. Young,104 Pa. St. 334;Wilson v. Donnelly,119 Ind. 565;Bowman v. Allen,113 Ill. 53;Chicago T. & T. Co. v. Brown,183 Ill. 420.(b) Such a will, executed, attested and proved in another State, in accordance with the requirements of the statute of Missouri, concerning the execution, attestation and probate of wills, has, when an authenticated copy thereof, and of its probate have been filed in the recorder's office of the county in Missouri where the land lies, the force and effect of a proved domestic will, and will pass title to the land here, unless set aside in a direct proceeding.G. S. 1865, p. 528, sec. 3, p. 529, sec. 20, p. 530, secs. 33, 34, 29, 35;Applegate v. Smith,31 Mo. 166;Keith v. Keith,97 Mo. 223;Fenderson v. Missouri Tie & T. Co.,104 Mo.App. 290;Cold Storage Co. v. Winsor,148 Ind. 682.(c) A will made by an unmarried woman in contemplation of marriage and in pursuance of a power to dispose of property reserved to her in an ante-nuptial contract, operates as the execution of a power of appointment, not as a testamentary disposition of an estate, and hence is not affected by her subsequent marriage.2 Jarman on Wills, 129;Fellows v. Allen,60 N.H. 439;Webb v. Jones,36 N.J.Eq. 163;Noyes v. Southworth,55 Mich. 359;Hunt's Will, 81 Me. 275;McMahon v. Allen, 4 E. D. Smith (N. Y.) 552;Lant's Appeal, 95 Pa. St. 279;Osgood v. Bliss,141 Mass. 474;Hudnall v. Ham,183 Ill. 486;Stewart v. Mulholland,88 Ky. 38.(2)Appellants are estopped to claim that the will of their sister was revoked by her subsequent marriage, by reason of the fact that they elected to claim under the will and have received the legacies therein given them.Stone v. Cook,179 Mo. 534, 64 L. R. A. 287; 1 Woerner's Am. Law of Adm. (2 Ed.) marg. p. 500;Utermehle v. Norment,197 U.S. 40;Branson v. Watkins,96 Ga. 55;Fry v. Morrison,159 Ill. 244;Madison v. Larmon,170 Ill. 65;Drake v. Wild,70 Vt. 52;Fisher v. Boyce,81 Md. 46.(3)Appellants are estopped to assert any ownership to the property by their solemn recognition of Julia Herbert's ownership of the whole title contained in the deed of trust to which they are parties.Clamorgan v. Greene,32 Mo. 285;Stevenson v. Saline County,65 Mo. 425;Freeman v. Auld,44 N.Y. 50;Rossell v. Wickham,36 Barb. 386;Williams v. Swetland,10 Iowa 51;Todd v. Eighmie,38 N.Y.S. 304;Wilcoxen v. Osborne,77 Mo. 621;Stimson v. Bank,28 Mo. 259;Smith McCord D. G. Co. v. Farwell Co.,50 P. 149;Railroad v. Donovan,104 Tenn. 465;Tack Co. v. Bank,111 Ga. 703;Wedge v. Moore, 6 Cush.(Mass.) 8.(4)DefendantJulia Herbert has been in open, notorious, exclusive, continuous adverse possession of the property since 1876, claiming title to the whole, and appellants are therefore barred by the Statute of Limitations.Warfield v. Lindell,30 Mo. 286, 38 Mo. 580;Dunlap v. Griffith,146 Mo. 283;Hutson v. Hutson,139 Mo. 229;Hendricks v. Musgrove,183 Mo. 300;Clymers v. Dawkins, 3 How (U.S.) 690; Clark v. Courtney, 5 Peters (U.S.) 354; Brown v. Brown, 14 Lea (Tenn.) 253; Rogers v. Winton, 2 Humph.122;Knowles v. Brown,69 Iowa 11;Thornton v. Bank,45 Me. 176;McCann v. Welch,106 Wis. 142;Unger v. Mooney, 63 Cal. 586.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

This is an action in ejectment to recover two-eighths of the premises known as number 305 North Broadway, in the city of St. Louis, Missouri, being a lot of twenty-nine feet on the west side of Broadway, by a depth of one hundred and two feet, the south line thereof being twenty-eight 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 defendantsJulia Herbert and Elizabeth Henriques are owners in common of said premises, the plaintiffs and Elizabeth Henriques each owning one-eighth thereof, and defendantJulia Herbert owning five-eighths thereof; that defendantRichard J. Herbert is the husband of Julia Herbert, and defendantPeter 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 nine thousand dollars each, one of them being payable to each of the plaintiffs; that Hyam H. Cohen, the father of plaintiffs and of defendantsJulia Herbert and Elizabeth Henriques, died owning said premises on May 10, 1874, and by his will devised the same to defendantJulia Herbert, and her sisterVictoria 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.

DefendantElizabeth 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 seized 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, defendantJulia 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, Missouri, devised whatever interest she had...