Colvin v. Hutchison

• Decision Date: 10 March 1936
• Docket Number: 33537
• Citation: 92 S.W.2d 667,338 Mo. 576
• Parties: Myrtle Colvin et al. v. Henry C. Hutchison et al., Defendants, Eleanor P. Davidge, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 667

338 Mo. 576

Myrtle Colvin et al. v. Henry C. Hutchison et al., Defendants, Eleanor P. Davidge, Appellant

No. 33537

Supreme Court of Missouri

March 10, 1936

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Reversed and remanded (with directions).

Foristel Mudd, Blair & Habenicht for appellant.

(1) Title to real property in Missouri is governed by the law of Missouri only. Dobschutz v. Dobschutz, 279 Mo. 129; White v. Greenway, 303 Mo. 691. (2) The filing in the Probate Court of St. Louis of an authenticated copy of the will, together with its probate in the County Court of Bond County, Illinois, and proof of the issuance of letters testamentary to the appellant by the Probate Court of the City of St. Louis made a prima facie case of title in appellant to the real property in controversy. Sec. 254, R S. 1929; Hines v. Hines, 243 Mo. 496. (3) The filing of the renunciation and election only in Bond County, Illinois, and without having it filed and recorded in the city of St. Louis, Missouri, left the will unaffected as a muniment of title to the real property in controversy and left the same subject to disposition as provided in the will of James H. Livingston, under Section 254, Revised Statutes 1929. Secs. 254, 333, 552, R. S. 1929; McGinnes v. Chambers, 82 A. L. R. 1492; Apperson v. Bolton, 29 Ark. 418; Boeing v. Owsley, 122 Minn. 190. (4) The will of James H. Livingston was a mere nonlegal document, so far as concerns real property in Missouri, until it was "admitted to probate in Missouri." Emerson v. Gordon, 140 Mo. 490, and authorities under Point (3). (5) Before the renunciation and election filed in Bond County, Illinois, could affect title to land in Missouri, it must then, within twelve months after probate of the will, have been filed in the Probate Court of the City of St. Louis. Secs. 333, 552, R. S. 1929; White v. Greenway, 303 Mo. 691; Thomas v. McGhee, 8 S.W.2d 71; Cases under Point (3).

Fordyce, White, Mayne & Williams, G. C. Stribling and Hill & Bullington for respondents.

(1) The filing of the renunciation of the will of James H. Livingston and the election in Bond County, Illinois, was a renunciation of the will as an entirety, and Mary M. Livingston as the surviving widow became entitled to one-half of the real and personal property of James H. Livingston wherever situated. Lindsley v. Patterson, 177 S.W. 826, L. R. A. 1915F, 680; Wood v. Conqueror Trust Co., 265 Mo. 511; Mettler v. Warner, 152 N.W. 327, 98 Neb. 111; Russell v. Shapleigh, 175 N.E. 100, 275 Mass. 15; Wilson v. Cox, 49 Miss. 598; Slaughter v. Garland, 40 Miss. 180; In re Harris Estate, 271 N.Y.S. 464, 150 Misc. 758; 1 Werner American Law of Administration (3 Ed.), sec. 119; 2 Page on Wills, sec. 1446, p. 2424. (2) The law of Missouri does not require the filing of a second renunciation and election in the State of Missouri when one has already been filed in the probate court of the state in which the main administration is had, and of which the decedent was a domiciled resident at the time of his death. The probate court in the state of the domicile is the proper place for the exercise of the right of renunciation. R. S. 1929, sec. 333; Lindsley v. Patterson, supra; Mettler v. Warner, supra; Wilson v. Cox, supra. (3) The statutes of Illinois on their face do not purport to limit the effect of respondent's renunciation and election to real estate located in Bond County, Illinois. Sec. 10, Chap. 41, Stats. of Ill.; Secs. 11, 13, Chap. 41, R. S. of Ill.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action to try and determine title to real estate in the city of St. Louis. Plaintiffs, each claiming an undivided one-twelfth interest in the land, claimed that defendant, Eleanor Davidge, hereinafter called appellant, owned only a one-half interest therein and the court so found. Appellant claims the whole title and has appealed from the trial court's judgment.

The facts are undisputed. The land in question belonged to John H. Livingston, a resident of Bond County, Illinois, who died in January, 1931, leaving a will which devised this land in fee to appellant. His will gave only a life estate in other land to Mary M. Livingston, the wife of the testator. This will was probated in Bond County, Illinois, and the executor qualified there. Mary M. Livingston was adjudged insane and H. W. Riedemann was appointed and qualified as conservator of her estate in May, 1931. Thereafter, during the same month, Riedemann filed on behalf of Mary Livingston, in the recorder's office in Bond County, Illinois, a duly acknowledged renunciation of this will which also stated an election for her, as follows: "I, H. W. Riedemann, conservator of the said Mary M. Livingston, for and on behalf of her, the said Mary M. Livingston, do hereby elect for her, the said Mary M. Livingston, in lieu of such devise to her made by the terms and provisions of the Last Will and Testament of the said James H. Livingston, deceased, to take the dower and legal share in said estate to her, the said Mary M. Livingston." Appellant says: "No question is made of the sufficiency of said renunciation and election as to form and time of its execution and filing in Bond County, Illinois." This renunciation and election was not filed in St. Louis and nothing else in the nature of an election was shown to have been filed anywhere. Mary Livingston died May 28, 1931, without making any disposition of this land by will or otherwise. No lineal descendants survived James H. Livingston or Mary Livingston. Plaintiffs are collateral heirs of Mary Livingston. A certified authenticated copy of the will of James H. Livingston, together with the order of the County Court of Bond County, Illinois, admitting said will to probate in Illinois, was filed in the Probate Court of the City of St. Louis in April, 1931. It was by that court "admitted to probate and record in this state as the last will and testament of said James H. Livingston, deceased," and letters of administration issued to appellant.

The question for decision is: What was the effect, upon the widow's rights in the real estate of her husband located in St. Louis, Missouri, of the renunciation and election filed in Bond County, Illinois? Appellant contends that the renunciation and election filed there had no effect at all upon the title to the Missouri land and that it, therefore, has passed under the devise in the will to appellant.

The whole doctrine of election rests upon the equitable ground that no one can be permitted to claim inconsistent rights with regard to the same subject. If the benefits given by a will are accepted, this is usually held to be an adoption of the whole will and a renunciation of every right or claim inconsistent with it. [Wood v. Conqueror Trust Co., 265 Mo. 511, 178 S.W. 201, and cases cited; Lindsley v. Patterson (Mo.), 177 S.W. 826, L. R. A. 1915F, 680; 69

C. J 1090, sec. 2330; 28 R. C. L. 331, secs. 319-320.] In the absence of statutory requirements, an election or renunciation may be made or implied from unequivocal declarations or acts showing such intent. [69 C. J. 1114, secs. 2386-2410; 82 A. L. R. 1509, note.] As pertaining to the rights of a widow in real estate of her deceased husband, the right of election arises from the fact that she has rights of ancient origin under the common law which cannot be taken from her by any act or obligation of her husband. [9 R. C. L. 601, sec. 43; 19 C. J. 458-61, secs. 4-12; Ambrose v. Rugg (Ohio), 175 N.E. 691, 74 A. L. R. 449; 1 Woerner's Law of Administration, 330, Chap. XI.] These rights have been modified, added to, and the choice of other rights in lieu thereof provided by statute. When a husband by will provides for his wife rights which are different from and inconsistent with rights which she would have without a will, she may take her choice between testamentary benefits and legal rights. These matters are now largely regulated by statutory enactments. [For our statutes see Art. 15, Chap. 1, R. S. 1929, and particularly Secs. 332 and 333; for Illinois statutes see Secs. 10-13, Chap. 41, R. S. Illinois, as amended by Laws 1925, p. 344, Illinois Bar Association Edition, Revised Statutes 1935.] Appellant's theory here is that the renunciation made herein was good in Illinois, the will was invalid as to Mary M. Livingston there, and she took her rights in real estate there against the provisions of the will; but that nevertheless, the same will was valid in Missouri as to her and she was bound by its provisions as to rights in real estate here. We do not agree to that proposition. In Lindsley v. Patterson, supra, where a will had been accepted in Connecticut and it was attempted to renounce and take under the law here, this court said that it would be absurd to say that a will could be accepted in one state and renounced in another. Wood v. Conqueror Trust Company, supra, in the same situation which is the converse of the situation here, followed the Lindsley case. Appellant says that her reason for contending otherwise is because title to real estate must be governed by the law of the State in which it is located. That is fundamental, but no Missouri statute is pointed out which provides specifically that a widow, who is a resident of another state and who renounces a will there, must file such a renunciation also in this State in order to be entitled to the rights which she would have in land here if no will had been made. Section 333, Revised Statutes 1929, seems meant only to provide what must be done by residents of this State but if it can be construed to cover nonresidents there is nothing in it which requires more than one filing of a renunciation in any case. Section 329, Revised...