Dillard v. Dillard
| Decision Date | 12 April 1954 |
| Docket Number | No. 43664,No. 1,43664,1 |
| Citation | 266 S.W.2d 570 |
| Parties | DILLARD v. DILLARD |
| Court | Missouri Supreme Court |
Sharon J. Pate, Caruthersville, for appellant.
Ward & Reeves, Caruthersville, for respondent.
This is an action for a declaratory judgment as to the legal effect of a certain written document alleged to have been found among the papers of F. M. Dillard, deceased, and to determine title to certain property in Pemiscot County.
Plaintiff alleged that the instrument had been filed for record; that the defendant was 'in full possession of said premises and is exercising all of the rights incident to ownership'; that the said 'written instrument represents the only claim of ownership * * * that defendant herein has' to the 'Dillard Theatre in Wardell, Missouri'; and that the widow and two children of F. M. Dillard, deceased, as therein mentioned, were named in his will and were 'entitled to inherit the real estate involved herein contingent upon the title of Roy Dillard.' Plaintiff prayed 'for a declaratory judgment decreeing the real estate herein involved to be the property of the estate of F. M. Dillard, deceased, and for any further orders which to the court may seem just and equitable in the premises.' As stated, the property in controversy is described as the 'Dillard Theatre in Wardell, Missouri.' The trial court found the issues for defendant and entered a judgment. Plaintiff has appealed.
The pleadings admit that F. M. Dillard died testate May 27, 1951, a resident of Wardell, Pemiscot County, leaving as his heirs his widow, Lela Dillard, a son, Roy Dillard and a daughter, Cora D. Thomas. Plaintiff is the duly appointed, qualified and acting executrix of his estate having been appointed by order of the Probate Court of Pemiscot County on June 1, 1951.
The written instrument in question is as follows:
'Signed (F. M. Dillard.
(Roy Dillard.'
On the reverse side of the instrument these words have been written with a pen: 'Roy Dillard Theatre Note Due me F. M. Dillard which I value at $5,000.00 cash.' The instrument bears a stamp and notation: 'Filed For Record Dec. 2, 1949 2 o'clock 6 Min J. T. Ahern, Recorder Pemiscot Co. Mo.' Under the heading 'Theatre Contract' there are a series of regular $125 monthly credits extending from December 5, 1946 to and including May 1, 1951.
Plaintiff offered the written instrument in evidence, together with the record of it in the deed records of Pemiscot County, and also the Last Will and Testament of F. M. Dillard, deceased, but no other evidence. The will gave certain specific personal property to the widow Lela Dillard, and then devised and bequeathed all of the rest and remainder of the estate of Lela Dillard, Roy Dillard and Cora Thomas, 'share and share alike.'
Defendant's evidence tended to show that Roy Dillard owned the 'Dillard Theatre at Wardell'; that he had owned the Theatre since 1940; and that he had owned and had had possession of the real estate upon which it was located for more than 20 years. He obtained title to the real estate through a tax sale 'from the sheriff' and had been paying the taxes on the property for 21 or 22 years. He testified that the records in the clerk's office showed the issuance of the execution in the tax proceeding, but that 'the sheriff's office shows nothing at all.' He said that the instrument in question was not the only record he had of his ownership of the Dillard Theatre, as he could prove ownership in many other ways.
Defendant further testified that when he built the theatre building in 1940, F. M. Dillard 'put twelve hundred dollars in it and all in cash,' while he (defendant) put in close to twenty thousand dollars; that his mother 'wanted something to do there and I said 'take the front end concession," that is, 'Pop corn, candy, and cold drinks and she had possession of that until she died * * * after she died he (F. M. Dillard) would hire the girls that worked back there and they were working for him and not for me, and I was * * * trying to buy it, but thought he asked too much money * * * for his interest in the concession stand and I said 'I will tell you what I will do, I will rent it from you,' and arrived at one hundred and twenty five dollars a month as long as he lived * * * every month I would pay him the payments * * * I paid him between four and five thousand dollars from 1946 up until the time he died and that is the reason for the instrument.'
Defendant identified his own and his father's signatures on the instrument and said that F. M. Dillard didn't own the Dillard Theatre and he (defendant) was not attempting to buy it from him when the instrument in question was executed; and that F. M. Dillard never claimed to own the lot before the building was put on it, but there was an agreement for F. M. Dillard to take over 'the concession stand' after he had put $1200 into the building.
The court found 'that the paper writing sued upon constitutes a valid and binding contract, and is plain and unambiguous on its face, and by its plain terms the sum of $125.00 per month was to be paid by the defendant herein to F. M. Dillard for and during the natural life of the said F. M. Dillard, and the court finds that all sums due on said contract had been paid at the time of the death of the said F. M. Dillard, and the court further finds that no sums could or did become due on...
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