Farris v. Burchard

• Citation: 145 S.W. 825,242 Mo. 1
• Parties: V. G. FARRIS et al. v. F. B. BURCHARD et al., Appellants
• Decision Date: 29 March 1912
• Court: Missouri Supreme Court

145 S.W. 825

242 Mo. 1

V. G. FARRIS et al. v. F. B. BURCHARD et al., Appellants

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from Gasconade Circuit Court. -- Hon. R. S. Ryors, Judge.

Reversed and remanded.

August Meyer, C. G. Baxter and Robert Walker for appellants.

(1) A will is a muniment of title only if duly probated; and the probate of a will is a judicial act, which can be shown only by the record of the court. Creasy v. Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Sniffer v Howerton, 124 Mo. 637; Stowe v. Stowe, 140 Mo 594; Cohen v. Herbert, 205 Mo. 537. (2) Probate courts, under our laws, have original jurisdiction of the probating of wills; and there is no probate of a will unless there has been a judicial pronouncement by the probate court establishing a will as legally proved. Jourden v Meier, 31 Mo. 40; Smith v. Estes, 72 Mo. 310; Sniffer v. Howerton, 124 Mo. 637. (3) Taking evidence to pronounce a will as proved is not a judicial pronouncement of the probate of a last will. Jourden v. Meier, 31 Mo. 40; Charlton v. Brown, 49 Mo. 353; Barnard v. Bateman, 76 Mo. 414; Rothwell v. Jamison, 147 Mo. 601. (4) Although it has been held that the judicial pronouncement of probate of a will may be inferred from certain other official acts and proceedings, yet it will be found that in all these cases the presumption of probate of a will was indulged in on the sole ground that such official acts and proceedings could not have occurred except through a judicial pronouncement of probate of a will. If such official acts could have been performed legally without any probate of a last will, then such acts and proceedings prove nothing in the way of probate of a last will. 14 Ency. of Evidence, p. 489; Marcy v. Marcy, 6 Metc. (Mass.) 360; Fortheree v. Lawrence, 30 Miss. 418; Holliday v. Ward, 19 Pa. St. 489; Guthrie v. Kerr, 85 Pa. St. 303; In re Coleman, 163 Pa. St. 334; Opp v. Chess, 204 Pa. St. 401. (5) The granting of letters to Peter W. Burchard on the estate of James Johnson, deceased, did not have to proceed from a judicial pronouncement of probate of the purported last will of James Johnson. Peter W. Burchard was not appointed as executor in said purported will, nor was anybody else appointed who could have renounced as executor under said purported will. Letters could have issued to Peter W. Burchard or anybody else without any probated will. Holliday v. Ward, 19 Pa. St. 489; Fotheree v. Lawrence, 30 Miss. 418; Rothwell v. Jamison, 147 Mo. 601. (6) Wills, after being probated, must be recorded, and were required to be recorded in 1865 when James Johnson died. Sec. 26, c. 167, R. S. 1855; Sec. 25, ch. 131, R. S. 1865; Sec. 4630, R. S. 1899; Sec. 563, R. S. 1909; Kieth v. Kieth, 97 Mo. 223; Graves v. Ewart, 99 Mo. 13. (7) The purported last will of James Johnson, deceased, was neither probated nor recorded. Presented on the trial of this cause in the condition of not being recorded and certified by the clerk of the court, and attested by his seal of office, it was, against objection by defendant, no evidence of title. Sec. 27, ch. 167, R. S. 1855; Sec. 26, ch. 131, R. S. 1865; Sec. 4631, R. S. 1899; Sec. 564, R. S. 1909; Barnard v. Bateman, 76 Mo. 414. (8) Defendant by himself, as well as grantee of persons having paid valuable consideration for said land, without notice of the purported will of James Johnson, and without means of knowing of the same, is entitled to be protected. This court has repeatedly held that outside wills, devising real estate in this State, must be recorded in this State, in order to give notice. Is there any reason why the same rule should not apply to wills in this State? Van Syckel v. Beam, 110 Mo. 589; Keith v. Keith, 97 Mo. 223.

J. W. Hensley for respondents.

(1) The will of James J. Johnson was duly and legally probated, and respondents, as his devisees, thereby became vested with title to the real estate in controversy. Rothwell v. Jamison, 147 Mo. 610; Creasy v. Alverson, 43 Mo. 13; Adm'r v. Stevenson, 54 Mo. 108. Under the law of 1865, as now, the clerk may take the proof of last wills in vacation, in which event the court must confirm or reject, or the court may take the proof. In this case the proof was taken in open court, and preserved by being indorsed on the will. Here is a will proved in open court in due form, will in good form, fair upon its face, free from doubt or suspicion, followed by appointment of administrator with the will annexed, who is directed, and does not give bond as such administrator. Upon such a state of facts we have not only the presumption that the will was probated, but a record admission of it, and so it was held by this court in the case of Adm'r v. Stevenson, 54 Mo. 108. (2) In order to authorize the appointment of an administrator with the will annexed, it must appear, that there is a valid will in existence, which has been duly admitted to probate. 2 Am. & Eng. Ency. Law (2 Ed.), p. 789; 18 Cyc. 98 (b). (3) The will of James J. Johnson having been proved in open court, the proof endorsed upon the will, and as we think legally probated, found in the custody of the probate court, fair upon its face and free from alterations or suspicion, and more than forty years old was admissible in evidence as an ancient document. 17 Cyc. 443 (d). (4) The provisions of the law of 1865 requiring clerks of county courts to record wills was for the purpose of perpetuating the will but a failure to so record in no wise affected the validity of the will. And under the laws of 1865 domestic wills were not required to be recorded in the recorder's office, unless they devised lands situate in different counties. Sec. 28, chap. 131, G. S. 1865.

OPINION

VALLIANT, J.

This is a suit under section 650, Revised Statutes 1899, to quiet title to the north half of the northwest quarter of section 8, township 41 north, range 5 west, in Gasconade county. Plaintiffs in their petition claim to be the owners of a remainder in fee of an undivided one-fourth of the land mentioned, subject to a life estate in their mother in that one-fourth, and they say that the defendant Burchard is the owner in fee of the other three-fourths. Thurman N. Matthews, brother to the other plaintiffs, was first made a party defendant, but on his motion was made a party plaintiff.

There is no dispute about the facts. James Johnson was the common source of title; he died in 1865, leaving a wife and four daughters, one of whom, Mary Elizabeth, is the mother of these plaintiffs. The wife is long since dead. The defendant now owns whatever title the four daughters acquired by descent as the heirs of their father James Johnson, which was the whole estate if their father died intestate. Plaintiffs claim that he died testate, and that his will has been duly probated; if that is correct, then the plaintiffs, as children of their mother, Mary Elizabeth, are entitled to a remainder in fee, subject to the life estate of their mother, contingent on surviving her. Plaintiffs introduced in evidence a paper writing purporting to be the last will and testament of James Johnson, deceased. The document appears to have been duly signed by the testator and attested by three subscribing witnesses. There is no date to the instrument, but what is claimed to be the evidence of its probate, indorsed on the back of it, is dated February 13, 1865. The instrument purports to give all the estate to his widow for life and at her death one-fourth in fee to each of the daughters except Mary Elizabeth, to whom he gives one-fourth "during her natural life and at her death to go to her bodily heirs, but if she should die without bodily heirs, it is to be divided equally among the bodily heirs of my three daughters above mentioned."

The plaintiffs are the children of Mary Elizabeth and will be her bodily heirs if they survive her; she is till living. This suit was begun in December, 1907, and tried in May, 1908, more than thirty years after the death of plaintiffs' grandfather. The administration of the Johnson estate was in the probate court of that county from 1865 to 1869. No evidence was offered at the trial to impeach the verity of the instrument offered, that is, to dispute its execution, but the defendant relied on the fact, as he contended, that it had never been admitted to probate as a will. The whole case turns on that point.

The evidence adduced by the plaintiffs to sustain their claim that the will had been probated was as follows: Written on the back of the instrument was the following:

"State of Missouri, County of Gasconade, ss.

"In the Gasconade County Court. This day personally appeared in open court William R. Douglas and William L. Walton, two of the subscribing witnesses to the foregoing instrument of writing, purporting to be the last will of James Johnson, deceased, who, being duly sworn, upon oath say that the said testator exhibited this instrument to them, which he declared to be his last will and testament, duly signed by him, that at the time of exhibiting said last will he was of sound mind and over the age of twenty-one years, and that they, at his request, and in his presence, signed said will as witnesses by subscribing their names thereto.

"William R. Douglas,

"W. L. Walton.

"In testimony thereof, I have hereunto set my hand and affixed the seal of county court at office, this, the 13th day of February, and the year of Our Lord eighteen hundred and sixty-five.

"James Johnson,

15-2-7 (Seal)

P. W. Burchard."

"Jas. Arrott, Clerk.

"By D. R. O'Neil.

The probate record of the county contains the following entry which was read in evidence: "Peter W. Burchard is by the court appointed administrator with the will annexed of James Johnson, deceased, and required to...