Davis v. Davis

• Decision Date: 31 July 1843
• Citation: 8 Mo. 56
• Parties: DAVIS v. DAVIS.
• Court: Missouri Supreme Court

8 Mo. 56

DAVIS

v.DAVIS.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM THE BOONE CIRCUIT COURT.

KIRTLEY, for Appellant. 1. That the Circuit Court erred in setting aside the order of the County Court, and granting a new trial; for the bill of exceptions taken in the County Court was so wholly defective, that the Circuit Court could, by nothing on the record, determine whether the County Court decided right or wrong. See Laws of Mo. of 1835, § 6, p. 63, and § 8, p. 64; 7 Mo. R. 4; 4 Mo. R. 18, Foster v. Nowlin, and 626, Searcy v. Devine; 5 Mo. R. 110. 2. That the Circuit Court erred in rejecting the testimony offered on the trial in that court by the appellant. See 3 J. J. Marshall, 238, Whitaker v. Blair; 2 Roper on Leg., 322; do. from 505 to 513. 3. That the finding and judgment of the Circuit Court is wholly insufficient and defective, and does not determine the rights of the parties. See § 8, p. 64, Laws Mo., 1835.

TODD, for Appellee. 1. That there is no bequest in the will of the residuum of the estate to the appellant, either as a legatee, or as executor. 2. That parol evidence is not admissible to enlarge, or vary the terms of the will. Fonb. Eq., 172, note; ibid. 339; 1 Johns. Ch. R. 234; 2 Marshall, 51.

TOMPKINS, J.

John Ellis, administrator, with the will annexed, of Samuel Davis, at the May term of the County Court for Boone county, in the year 1841, made his annual settlement, and there was found in his hands, after the settlement of all demands against the estate of the deceased, the sum of $750; whereupon, the record states, William M. Davis came into court, and moved the court to make an order, on the administrator to pay the same over to him, and as evidence of his right, read to the court the last will and testament of Samuel Davis, deceased, which is in the words and figures following, viz.:

“Florida, November the first, in the year of our Lord one thousand eight hundred and thirty-seven; being of sound mind and understanding, make this my will and testament, after committing my soul to the hands of God:--1st. I will that Wm. M. Davis, of the county of Boone and State of Missouri, be my executor, and sell my land in the county aforesaid, and pay all dues and lawful demands, and then pay to each of my brothers and sisters fifty dollars: 2nd. I will that Rachel Martin have all my things that remain with her: 3rd. I will that John Ellis receive my_____in the service in which I am engaged, pay the same over to William M. Davis, and what remains with me: 4th. I will that the business in which I am engaged, of Jane Wiley, deceased, be given up to G. Winant. Given under,” &c.

The record then shows the will duly proved and recorded; and then it shows, that John Davis and others were admitted to be brothers and sisters of the deceased; that the brothers and sisters of the deceased were his only legal representatives, and they moved the court to make an order distributing the estate equally among the heirs at law; whereupon the court made an order, directing the administrator to pay over the said sum of $750 to the said William M. Davis. The order is then set out at large, and the clerk certifies, that it is a true copy of the record, and that the losing party excepted. The record above, set out in substance, is then copied over again literally, into what is called a bill of exceptions. The affidavit for an appeal, and appeal bond, are also set out. When the cause came into the Circuit Court, the appellant moved the court to set aside the judgment of the County Court, and grant a new trial. Davis appeared by counsel, and opposed the motion. The Circuit Court set aside the judgment of the County Court, and granted the appellants a new trial. William M. Davis, appellee there, and appellant here, excepted to the decision of the court. The new trial was had; William M. Davis, appellant here, attended, and an order was made by the Circuit Court, that the administrator proceed to distribute the money which the County Court had directed to be paid to William M. Davis, among the legal representatives of the deceased. The appellant, Wm. M. Davis, excepted, and moved for a new trial.

In the bill of exceptions, it appears, that Davis, appellant, gave in evidence the will of the deceased, and then offered evidence to prove that the deceased died in Florida, but resided in Boone county; that he was his youngest brother, was a favorite, and raised by deceased in his family; that the deceased was a bachelor, without children; and that, at time of making his will, it was his intention to devise away the whole estate, and not to leave a residue undevised.

The Circuit Court refused to admit this evidence, and the appellant, Davis, excepted and moved for a new trial, as above mentioned. It is assigned for error: 1. That the Circuit Court erred in setting aside the judgment of the County Court, and in granting the appellee a new trial. 2. That the Circuit Court erred in rejecting the testimony offered by the appellant. 3. That the Circuit Court committed error in the judgment which it gave. 4. The Circuit Court should have found the amount to be distributed, instead of making the general order entered up.

1st. If we admit that the Circuit Court committed error in setting aside the judgment of the County Court, yet still, if the other party wished to avail himself of such error, he should not have made defense in the new trial before the Circuit Court, but he...