Fenderson v. Missouri Tie & Timber Co.

• Decision Date: 02 February 1904
• Court: Missouri Court of Appeals
• Parties: FENDERSON v. MISSOURI TIE & TIMBER CO.

78 S.W. 819

104 Mo. App. 290

FENDERSON v. MISSOURI TIE & TIMBER CO.

Court of Appeals at St. Louis, Missouri.

February 2, 1904.

TRANSFER OF TITLE BY FOREIGN WILL—EVIDENCE OF—PROBATE—NECESSITY—PRESUMPTION FROM RECORD—DEED—CONSTRUCTION—NAME OF GRANTOR—QUESTION FOR COURT.

1. Rev. St. 1899, §§ 4634, 4635, authorize devises by foreign wills of real estate in the state, and provide that authenticated copies of such wills "and the probate thereof" shall be recorded and admitted in evidence the same as if executed and proved in the state. Held to expressly require proof of the probate of such a will, as well as exemplified copy thereof, in order to prove a transfer of title thereby.

2. The duly authenticated record of a foreign will affords no presumption that it was duly proved, so as to dispense with proof of such fact in support of a title to land depending thereon.

3. Where it appears possible to read the name of the grantee as written in a deed as either "Mack" or "Mock," it is for the court to determine which was intended.

Appeal from Circuit Court, Ripley County; J. L. Fort, Judge.

Action by John Fenderson against the Missouri Tie & Timber Company. From a judgment for plaintiff, defendant appeals. Reversed.

Dinning, Hamel & Dinning, for appellant. Thos. F. Lane, for respondent.

GOODE, J.

Action for damages for trespass on lands by cutting and removing trees from it. The land was wild, and not in the actual possession of any one; but plaintiff asserts the right to maintain this action by virtue of the constructive possession which he says he had as owner of the fee. Both parties claim under Jacob Van Wormer as the common source of title—the plaintiff under a warranty deed executed by said Van Wormer in his lifetime to Chas. C. Mack, and subsequent transfers of the title to the plaintiff; the defendant under a quitclaim deed from the heirs of Van Wormer. In plaintiff's chain of title is the will of William Armstrong. This will was executed February 22, 1886, in Bradford county, Pa., where Armstrong resided. It is an essential link in plaintiff's title, and the only question of moment in the case is whether or not the certified copy of the will from the office of the register of wills of Bradford county, which was introduced by the plaintiff, was sufficient evidence to show that the title to the land passed by the will to Emeline Armstrong, the devisee. The document introduced comprises a copy of the will of William Armstrong, with the attesting clause, signed by two witnesses, and the certificates of Wm. J. McCabe, register of wills of Bradford county, and A. C. Fleming, president judge of the court of common pleas or orphans' court for Bradford county. The execution and attestation of the will complied with the statutes of this state, and the authentication of the copy complies with the act of Congress. But the plaintiff offered nothing, as said, except an exemplification of the will itself, with the attesting clause, and the certificate of the register that he had compared the copy with the original on file and of record in his office, and found the same to be a true copy of and transcript of the original record. What is lacking is an exemplification of the record of the probate of the will in the proper court of Bradford county, Pa., if it was ever proved. The defendant insists that, for the will to be operative as a conveyance in plaintiff's chain of title, it was necessary for it to be proved; and that for the record introduced in evidence to establish this necessary link in his chain of title it was necessary to have an exemplification of the decree or judgment authenticated according to the act of Congress. This point must be granted. Our statutes provide that any person owning real or personal estate in this state may devise or bequeath such property by last will, executed and proved, if real estate be devised, according to the laws of this state, or, if personal estate be bequeathed, according to...