Faust's Adm'x v. Birner

• Decision Date: 31 July 1860
• Citation: 30 Mo. 414
• Parties: FAUST'S ADMINISTRATRIX, Defendant in Error, v. BIRNER et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

30 Mo. 414

FAUST'S ADMINISTRATRIX, Defendant in Error,

v.BIRNER et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1860.

1. The words “dying without issue” must, in this state, since the revised code of 1845 went into effect, be construed to mean dying without issue living at the death of the person named as ancestor.

2. A testator made a bequest as follows: “I direct that if my wife M. should have a child by me, that such child shall have and receive of my estate the sum of two hundred dollars, &c. After making another specific devise, he proceeded as follows: “I give and bequeath to my wife M. all the residue of my estate, real and personal, for and during her natural lifetime,” with remainder over. The wife at the death of the testator was pregnant with a child, which was afterwards still-born. Held, that the bequest of the two hundred dollars was not a lapsed legacy, but was embraced in the devise to the wife.

3. The doctrine, that if a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another under the name of a compromise, a court of equity will grant him relief, is to be understood with many qualifications; family compromises upon doubted, if not doubtful, rights and mutual claims and mutual ignorance of the law, are generally sustained by the courts; to authorize the courts to grant relief there should, it seems, be something more than mere ignorance of the law; there should be imposition or undue influence.

Error to Cole Circuit Court.

John Birner died in 1845, leaving a will, dated September 1, 1845, of which the provisions are as follows: “First, I direct that all my debts, &c. second, I direct that if my wife Margaretta should have a child by me, that such child shall have and receive of my estate the sum of two hundred dollars out of my estate, to be paid to such child on arriving at age. I direct the said sum shall remain a charge on my real estate until said child arrives at the age of twelve years, at which time I further direct said sum to be raised from my real estate, and the same to be loaned out at interest for the benefit of my child; thirdly, in consideration that my brother Andreas Birner advanced a part of the money with which I purchased the farm where I now live, I give and bequeath to my said brother forty acres of land of said farm in full discharge of all sums of money due by me, which may be allotted to him at any time after my death; fourth, I give and bequeath to my wife Margaretta all the residue of my estate, real and personal, for and during her natural lifetime, and after her death, without other issue than the above referred to, then to my said child; but if my said wife should again marry and have other children, then I direct that the property lastly above bequeathed shall be equally divided between my child and the children of my wife, the issue of such second marriage; or if my wife should die without issue, then I direct that all my property shall be equally divided between my two brothers Andreas Birner and George Birner, except the forty acres of land first given to my brother Andreas; lastly, I appoint my wife executrix,” &c.

The child with which said Margaretta was pregnant at the death of her said husband was not born alive. The said Margaretta afterwards married John B. Faust, by whom she had three children. Faust has since died. This suit is brought by the said Margaretta, as administratrix, to recover back a sum of money paid by plaintiff's intestate to the defendants, Andreas and George Birner, the brothers of plaintiff's first husband, under the following circumstances as set forth in plaintiff's petition. The petition sets forth the provisions of the above will; that plaintiff intermarried with Faust; that Faust was a foreigner by birth and did not understand the English language well, and was ignorant and unacquainted with the nature of land titles in this state; that defendants falsely and fraudulently represented to him that they had a title to an interest in said lands; that he, relying on their representations and intimidated by their threats, was induced, in 1853, to pay to defendants the sum of $320 for their pretended title to said land; that they at the same time made to said Faust a warranty deed to the same; that defendants never owned said land or had any interest therein, and never had possession; that the title from defendants to said Faust has wholly failed.

Evidence was adduced to show that a dispute arose between said Faust and the defendants as to the interests conferred by said will of John Birner, the defendants claiming an interest and threatening to turn Faust out of possession in case of Mrs. Faust's death. In 1853 the said Faust paid to defendants $320 by way of compromise of their claims upon the land, and the defendants executed a deed granting the land to said Faust. At the date of this deed Mrs. Faust had one child by said Faust.

The court, at the instance of plaintiff, gave the jury the following instruction: “1. If the jury are satisfied from the evidence that Mrs. Faust had one child living by her second marriage at the time of the execution of the deed read in evidence, by a plain and settled principle of law the defendants had no interest in the land in question under the will; and if Faust, acting in ignorance of this plain and settled principle of law, was induced by defendants to pay them the amount mentioned in the petition as therein stated, they must find for the plaintiff.”

The defendants asked various instructions, some of which were given, and some refused. It is deemed unnecessary to set them forth.

Parsons, for plaintiff in error.

I. The court should have sustained the demurrer. If the title of the heirs of Faust had failed, the action on the covenant of warranty descended to the heirs and not to the administratrix. (1 Chitt. Plead. 16.) No specific threats against the person, property or character of Faust were charged. The plaintiff does not, in asking for the purchase money, propose to rescind the deed of conveyance. The instruction given should have been refused. If the parties acted in ignorance and for the purpose of adjusting their difficulties, without fraud, misrepresentation or duress,...