Farris v. Burchard

• Decision Date: 02 December 1914
• Docket Number: No. 17998.,17998.
• Citation: 262 Mo. 334,171 S.W. 361
• Parties: FARRIS et al. v. BURCHARD et al.
• Court: Missouri Supreme Court

171 S.W. 361

262 Mo. 334

FARRIS et al. v. BURCHARD et al.

No. 17998.

Supreme Court of Missouri, Division No. 1.

December 2, 1914.

1. EVIDENCE (§ 83) — PRESUMPTIONS — PERFORMANCE OF DUTY — ADMINISTRATOR WITH WILL ANNEXED.

Where an administrator with the will annexed was appointed and qualified, there is a presumption that he faithfully discharged the duties of his office.

2. COURTS (§ 116) — CORRECTION OF RECORDS — LIMITATIONS.

No statute of limitation applies to and bars the right of a court to put in proper form at any time that which appears from its record to have been done and to have been imperfectly or informally recorded.

3. WILLS (§ 353) — ADMISSION TO PROBATE — ENTRY OF JUDGMENT.

Rev. St. 1855, c. 167, § 14, provides that the county court, or clerk thereof in vacation, subject to confirmation of the court, shall take proof of last wills, and sections 16, 18, and 21 prescribe the proof to be made, the reduction of the proof to writing, and the indorsement thereof on the will itself. Section 26 imposes upon the clerk the duty of recording such instruments, but requires no order of court therefor. Proof of a will was made in 1865, and an administrator with the will annexed appointed. The administration continued for about four years, after which time the will came into the possession of the wife of the testator who was given a life estate in his lands. No formal judgment of probate was ever entered, and the wife who obtained possession of the will, treated it as a nullity, allowing a daughter, to whom an estate for life only was devised, to treat the land as her own. Held, that as the will had been in proper custody all the time, and as nothing but the entry of formal judgment remained, it being apparent that the will was admitted to probate, formal judgment of probate might be entered 40 years thereafter, so that the remaindermen in fee could assert their interests under the will, even though the instrument had not been recorded.

Appeal from Circuit Court, Gasconade County; John W. Booth, Judge.

Suit to quiet title by Virginia G. Farris and others against F. B. Burchard and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

August Meyer, of Hermann, C. G. Baxter, of Owensville, and Robert Walker, of Hermann, for appellants. J. W. Hensley, of Owensville, for respondents.

BROWN, C.

This case is founded upon section 650 of the Revised Statutes of 1899. It was instituted in the circuit court for Gasconade county December 23, 1907, and has been once before to this court upon the appeal of defendants from a judgment in favor of the plaintiffs, which was reversed and the cause remanded for a new trial. Farris v. Burchard, 242 Mo. 1, 145 S. W. 825. The question in that appeal was whether, upon the records of the probate court for that county as they then appeared, the will of James Johnson, under which the plaintiffs claim their title to an undivided fourth of the land involved, was shown to have been admitted to probate. The opinion of this court in rendering its judgment concluded as follows:

"Whether the parties interested could now present the will for probate or whether the record is in such a condition as would entitle them now to a judgment nunc pro tunc, we express no opinion, because there is no such case before us, but we do feel constrained to say that the proof adduced did not justify the conclusion that the will had been duly probated, and therefore did not justify the judgment that the respondents were entitled to the interest in the land which the judgment gives them. The judgment is therefore reversed, and the cause remanded for a new trial."

Upon the return of the cause to the circuit court the plaintiff Samuel Matthews appeared in the probate court, and by written petition stated that he was a devisee in the will as well as heir at law of James Johnson, deceased, who died in 1864 leaving said will, which was on ____ day of ____, 1865, produced in the county court of Gasconade county, Mo., having at the time probate jurisdiction, and the testimony of the subscribing witnesses thereof was duly and formally taken by the clerk of the court in vacation and indorsed, with his certificate thereto, on the back of said will, that said will has since remained in the custody of the probate court, although no formal judgment of probate has been entered of record by said court, and prayed that an entry of formal judgment of probate be entered on the records of said court upon such proof. The defendant Burchard appeared, filed objections in writing, and opposed the entry of such judgment, but the court, at its August term, 1912, after reciting all the facts upon its record, ordered and adjudged that the instrument be considered proved, and adjudged the same to be the last will of said James Johnson, deceased, and ratified and confirmed the proceedings of the clerk, and ordered the will to be admitted of record. A similar order and judgment was then written out and signed by the judge on said will, and it was recorded by the clerk. It also appeared upon the records of the county court that, in 1865, after the presentation and proof of the will before the county clerk, Peter W. Burchard was by order of the court duly appointed administrator with the will annexed of the estate of James Johnson, deceased, and was required to give bond as such administrator in the sum of $15,000, and that he thereupon filed such bond which was by the court approved. The administration of the estate continued from the time of his appointment in 1865 until some time in 1869. The will, with the proof and certificates thereon, was recorded in the office of the recorder of deeds for Gasconade county on March 29, 1913. The admission of the will in evidence with these record entries constitute the error relied on by appellant.

The paragraph in the will under which the plaintiffs claim title to an undivided fourth of the land, as the only children of the testator's daughter Mary Elizabeth, who was married to one N. G. Matthews, their father, is as follows:

"I give and bequeath all my estate to the use of my wife during her natural life; at her death my estate, or one-fourth of it, to my daughter, Mary Jane; one-fourth to my daughter, Susan Ann; one-fourth to my daughter Eliza Virginia; the remaining fourth to my daughter Mary Elizabeth and her bodily heirs, her husband having no control over the same. The income from the one-fourth part of my estate devised to my daughter, Mary Elizabeth, she can have the use of 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 named, viz.: Martha Jane Johnson, Susan Ann Johnson and Eliza Virginia Johnson."

Martha Jane afterward married one Benjamin P. Richardson, Susan Ann married one Perry A. Richardson, and Elizabeth Virginia married one J. W. Cantley. Mrs. Matthews was alive when this suit was instituted, but has since died.

The defendant Burchard claims through deeds as follows: (1) Deed dated March 1, 1877, from Mrs. Matthews and husband, Mrs. Cantley and husband, and Mrs. B. P. Richardson and husband to Perry A. Richardson for $150; (2) deed from Perry A. Richardson and wife to Green C. Richardson dated August 16, 1880, and filed for record May 16, 1908, in which no consideration is expressed; (3) deed from Green C. Richardson and wife to Fred B. Burchard dated February 28, 1884, and recorded August 12, 1884. While a consideration of $15,000 is expressed in this deed, it was an advancement to the wife of defendant, who was the grantor's daughter.

It was agreed on the trial as follows: "That defendant's father-in-law, Green C. Richardson, was a purchaser for value of the lands described in plaintiff's petition." The record shows that the oldest child of Mrs. Matthews, the plaintiff Virginia Farris, was born in 1868.

I. The cause was reversed in the former appeal on the sole ground that the proof adduced at the former trial did not justify the conclusion that the will of Johnson had been duly probated, and therefore did not justify the judgment that the plaintiffs were entitled to the interest in the land which it gave them. It only remains for us to determine whether or not at the last trial the evidential deficiency was supplied. It consisted solely of the absence of a formal judgment of the county court, then having jurisdiction in such matters, or of the probate court which succeeded to that jurisdiction, declaring that it had been proven, or, to use a more common expression, admitting it to probate. This court declining to express an opinion as to whether or not the parties in interest could still...