Dixon v. Helena Soc'y of Free Methodist Church of N. Am.

• Decision Date: 22 May 1917
• Docket Number: Case Number: 7862
• Citation: 166 P. 114,1917 OK 255,65 Okla. 203
• Parties: DIXON et al. v. HELENA SOCIETY OF FREE METHODIST CHURCH OF NORTH AMERICA.
• Court: Oklahoma Supreme Court

1917 OK 255

166 P. 114

65 Okla. 203

DIXON et al. v. HELENA SOCIETY OF FREE METHODIST CHURCH OF NORTH AMERICA.

Case Number: 7862

Supreme Court of Oklahoma

Decided: May 22, 1917

Syllabus

¶0 1. Appeal and Error--Discretion of Trial Court--Trial Amendment. The permission of amendments to pleadings at or after trial is within the sound discretion of the trial court, and in the absence of a showing of an abuse of such discretion, the action of the trial court in permitting amendments at or after the trial will not be disturbed.

2. Pleading--Amendment--Time to Plead. Where the amendment allowed after the trial does not substantially change the issues presented in the original petition and there is no showing of surprise, occasioned by such amendment, it is not error to deny defendant time to plead thereto.

3. Wills--Devise of Land--Charge. A will devising land in fee simple without restrictions or limitations, which directs a devisee to pay a legacy devised therein, creates a personal liability on the part of the devisee, upon acceptance of the devise, to pay the legacy as directed by the testator.

4. Same. Where land is specifically devised and the will directs the devisee to pay a legacy provided therein, the law will impliedly charge such legacy upon the land taken by the devisee, even though such legacy is not expressly charged thereon by the will.

5. Same--Construction--Legacy. A clause in a will, directing a devisee of lands devised therein to pay an annuity for a period of years to a person named therein, constitutes a legacy for the benefit of such person.

6. Same.--Legacy--Lien. A will devising lands, containing a clause directing the devisee of such lands to pay a legacy, does not technically create a trust for the benefit of the legatee, but, upon the acceptance of the devise, such legacy becomes a personal liability of the devisee, and also becomes a lien upon the lands devised.

Parker & Simons, for plaintiffs in error.

A. R. Carpenter, for defendant in error.

RUMMONS, C.

¶1 This is an action by the defendant in error, hereinafter called plaintiff, against the plaintiffs in error, hereinafter called defendants, to recover from each of said defendants the sum of $ 100 under the provisions of the will of Simon Q. Dixon, deceased. The defendants, children of the testator, were legatees and devisees under the will, each receiving specific devises of real estate, and sharing equally under the will in the personal property of testator, after the payment of his debts. Plaintiff claims under the seventh clause of the will, which is as follows:

"It is my desire, and I therefore direct, that commencing with the year 1913, that each of my three children shall contribute to the Free Methodist Church of Helena for a period of ten years, the sum of $ 50.00 a year."

¶2 Plaintiff had judgment; defendants bring error. The first assignment of error complains of the action of the court in refusing to permit defendants to plead to the amended petition of plaintiff and in rendering judgment in favor of the plaintiff on said amended petition the same day it was filed. Plaintiff commenced this action, alleging in its original petition the execution and probate of the will of Simon Q. Dixon and the final settlement and distribution of his estate thereunder, and sought recovery against defendants under the terms of said will in an action in the nature of debt. A copy of the will is attached to the petition and made a part thereof. The petition prayed a money judgment against the defendants and also for general relief. After the trial had been concluded, and the case had been taken under advisement by the court for about 30 days, plaintiff asked and secured leave to amend its petition to conform to the proof. The defendants objected and excepted to the proposed amendment and the granting of leave to make the same, which objection was overruled by the court and exception allowed. Defendants were given until the following day to plead to the amended petition. It seems from the record that the amended petition was not filed until the following day, when defendants moved the court to strike the amended petition from the files because it presented new issues, differing from the issues upon which the cause was tried. This motion was overruled and exception taken to such ruling. Defendants then moved the court for time in which to plead to the amended petition; the court denied such application for further time to plead, and proceeded to render judgment for the plaintiff. The amendment incorporated in said amended petition alleged that the will created a trust in favor of the plaintiff, and that the defendants held the lands devised to them as trustees for the benefit of the plaintiff. The court in rendering judgment decreed that by the terms of the will a trust had been created of which plaintiff was the beneficiary, and decreed the amount found due the plaintiff from each of said defendants to be a lien upon the lands devised to each of said defendants by said will. It appears from the record that, at the time the executor of said will made his final report and prayed for final settlement of his accounts, the plaintiff appeared in the county court claiming rights under said will and objecting to the final settlement and distribution of the estate being made until provision was made for the payment of the legacy provided for it in said will. The county court adjudged that the plaintiff did not take a legacy under the will, overruled its objections, approved the final report of the executor, and made an order of distribution of the estate. By stipulation of counsel for plaintiff and defendants, the judgment of the county court provided as follows:

"It is further ordered by the court that this decision be without prejudice to the rights of the said Free Methodist Church of Helena, Okla., to the beginning of a separate and independent action against the heirs and devisees of said estate, if it so desires, for the purpose of attempting to enforce any liability which it claims exists against the defendants for the sum referred to in the seventh clause of the will."

¶3 Plaintiff appealed from this judgment of the county court to the district court of Alfalfa county, where the judgment of the county court was upheld. No appeal was taken from the judgment of the district court, and the same became final. Defendants pleaded the action taken by the plaintiff in the county court and district court of Alfalfa county, and the judgment of said, courts thereon in their answer, and introduced evidence thereof at the trial, but it is not pleaded therein as res adjudicata or as a bar to the present action. The only change made by the amended petition from the cause of action set up in the original petition consists in the allegation that the moneys provided to be paid to plaintiff by the will of decedent were held in trust by the defendants for the benefit of plaintiff. Plaintiff having attached to its original petition a copy of the will of decedent and made the same a part of its petition, the same must be considered in construing the petition and in determining to what relief the plaintiff was entitled under the allegations thereof. Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Long v Shepard, 35 Okla. 489, 130 P. 131; Davis v. Choctaw County, 58 Okla. 77, 158 P. 294, L. R. A. 1916F, 873; Southern Surety Co. v. Municipal Excavator Co., 61 Okla. 215, 160 P. 617, L. R. A. 1917B, 558. So considered, the original petition seems to us to state facts sufficient to entitle it to the relief granted by the court except so far as the court in its decree undertook to decree a trust in favor of the plaintiff, which part of the decree will be considered later in this opinion. The right of the plaintiff to recover depends, not upon the prayer, but upon the scope of the pleading and the issues made, or which might have been made under it. Willoughby v. Summers, 62 Okla. 98, 162 P. 206. So that the amended petition, except as to the matter of decreeing a trust, which, as will appear later, may be disregarded, made no change in the issues presented by the original petition. It seems to us that the right of plaintiff to recover upon the original petition or the amended petition must depend upon the questions whether or not the clause in the will upon which plaintiff relies provides a legacy for plaintiff, and whether or not such legacy was a charge upon the lands devised by testator to defendants, so that under either petition the question presented by the pleadings turned upon the construction of the seventh clause of the will. The defendants made no showing of surprise, nor did they make any showing that they were unable to meet the issues raised by the amended petition. It does not appear from the record that the trial court abused the discretion, vested in it, in granting permission to amend. We are therefore unable to see how the defendants were prejudiced by the action of the trial court of which they...