Cox v. Cox

• Decision Date: 16 June 1890
• Citation: 13 S.W. 1055,101 Mo. 168
• Parties: Cox, Appellant, v. Cox et al
• Court: Missouri Supreme Court

13 S.W. 1055

101 Mo. 168

Cox, Appellant, v. Cox et al

Supreme Court of Missouri

June 16, 1890

Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.

Reversed and remanded.

Boyd & Delaney for appellant.

(1) The will was not properly attested and must be vacated. 1 Kent pp. 461, 462, 463 and 464. (2) Thomas Cox, the son of John B Cox, deceased, is not named in or provided for by the will and as to him his father died intestate. R. S. 1879, sec. 3969. (3) If it be held that naming is not necessary, still it must affirmatively appear from inspection of the will that Thos. E. Cox was in the mind of the testator and was intentionally excluded, and not accidentally omitted. Wetherall v. Harris, 51 Mo. 65; Pounds v. Dale, 48 Mo. 270. (4) The devise to the grandchildren and mention of "family" does not show affirmatively, that Thomas E. Cox was in the mind of the testator. Guitar v. Gordon, 17 Mo. 411; Bradley v. Bradley, 24 Mo. 314; Hargadine v. Pulte, 27 Mo. 423; Pounds v. Dale, 48 Mo. 270; Wetherall v. Harris, 51 Mo. 65.

Silsby & Buckley for respondents.

(1) On the will itself it is sufficient that proof be made in the probate court; it is taken by the court or by the clerk in vacation. R. S. 1879, secs. 3962, 3972, 3976; 4 Kent's Com. [12 Ed.] p. 515; 1 Cooley's Black. Com. top p. 377, latter part of notes 5 and 7. (2) The use of the words "grandchildren" and "family" (plaintiff being one of the class named) upholds the will as against him. Hockensmith v. Slusher, 26 Mo. 237; Block v. Block, 3 Mo. 595; Guitar v. Gordon, 17 Mo. 408; Pounds v. Dale, 48 Mo. 270. (3) Appellant is one of the family, and a bequest to the family is good, and evidence as to what the family is is admissible, Hall v. Stephens, 65 Mo. 670.

OPINION

Brace, J.

-- On the twenty-third of August, 1886, the following instrument of writing purporting to be the last will and testament of J. B. Cox, deceased, was admitted to probate in the probate court of Greene county:

"Springfield, Mo., August 19, 1886.

"Know all men by these presents that I, J. B. Cox, of Springfield, Missouri, do hereby state that I am a man of sound mind and in the full enjoyment of my full senses. I hereby bequeath to my grandchildren all my property hereinafter named, viz.: Namely, one hundred and twenty-one feet upon Campbell street, one hundred and ninety-six and one-half feet deep, after all my funeral expenses and debts are paid. The balance to go to the family, and I further agree to make John Foley my legal executor of this my last will and testament. J. B. Cox.

"Attest W. W. Smith,

"M. E. Holley."

On the eleventh day of November, 1886, the plaintiff instituted this suit. His petition, after setting out the probate of said instrument by the probate court, states "that plaintiff, Thomas E. Cox, at the time of the death of said John B. Cox, was and now is the only child of said John B. Cox. That said order and decree of the probate court aforesaid should be adjudged null and void and said pretended will rejected for these reasons: That said paper pretending to be the will of said John B. Cox, deceased, is not in fact such will, because it is not executed and attested in manner and form prescribed by law. Because plaintiff who is the only child of said John B. Cox, deceased, is not mentioned in said pretended will. Plaintiff further states that defendants are the pretended devisees in said pretended will and are the only persons interested in the subject-matter of this proceeding; that they are both minors. Wherefore plaintiff contests the validity of said pretended will, and prays the court to set aside said order of said probate court and reject said pretended will and for other and further relief."

The defendants answered by guardian, denying the allegations of the petition, except that deceased was the owner of the real estate mentioned in the petition, and that he willed the same to the defendants. A jury being waived, an issue was framed "whether the writing produced and contested by petitioner as invalid be the will of John B. Cox, deceased." The case was submitted to the court on an agreed statement of facts, and the evidence of the attesting witnesses taken on the probate in the probate court. And the court made a finding and rendered judgment as follows: "And the court upon the evidence finds that said instrument produced is the will of said John B. Cox, deceased. That said John B. Cox did not die intestate as to plaintiff, and that said contestant, Thomas E. Cox, was sufficiently named in said will. It is, therefore, considered by the court that said instrument is, and the same is hereby declared to be, the last will and testament of John B. Cox, deceased; that plaintiff take nothing," etc. From which judgment the plaintiff appeals.

In a proceeding in the circuit court to contest the validity of a will, or to have a will proved, which has been rejected, the statute prescribes the issue that shall be tried, and that issue is "Whether the writing produced be the will of the testator or not." R. S. 1879, sec. 3980. And, in such a proceeding, this is the only issue that can be tendered or tried. This was, and could be, the only issue tendered in the petition in this case. The field of inquiry upon this issue was limited by the specific allegation to a single particular wherein the instrument failed to be his will, and that was "that it was not executed and attested in manner and form prescribed by law." The issue thus limited was fully met when the will was produced and it was shown that it was signed by the testator and attested as the law required by two witnesses, who subscribed their names thereto in the presence of the testator. Sec. 3962. The allegation in the petition that "plaintiff is the only child of the said John B. Cox, deceased, and is not mentioned in the will, was not germane to the issue to be tried; it tendered an issue that could not be tried in this proceeding, an issue that went to the effect of the...