Graham v. Graham
| Decision Date | 23 February 1923 |
| Citation | 249 S.W. 37,297 Mo. 290 |
| Parties | CHARLES F. GRAHAM, Appellant, v. SAMUEL E. GRAHAM et al |
| Court | Missouri Supreme Court |
Appeal from Miller Circuit Court. -- Hon. John G. Slate, Judge.
Reversed and remanded (with directions).
W. S Stillwell and Ira H. Lohman for appellant.
(1) The so-called joint will was in legal effect a joint and several will, and so far as it affected the property involved in this suit was a valid will. Bower v. Daniel, 198 Mo. 320; Bright v. Cox, 147 Ga. 476; Schumaker v Schmidt, 44 Ala. 467; In re Davis Estate, 120 N.C. 9; Evans v. Smith, 28 Ga. 98; Ex parte Day, 1 Bradf. Surr. 476; In re Crawley Estate, 136 Pa. St 628; In re Crawley Estate, 162 Pa. St. 520; Campbell v. Dunkelberg, 172 Iowa 385; Lewis v. Schofield, 26 Conn. 452; Frazier v. Patterson, 243 Ill. 80; Gerberich v. Freitag, 213 Ill. 552; March v. Huyter, 50 Tex. 243; Carle v. Miles, 89 Kan. 540; In Matter of Diez, 50 N.Y. 88; 1 Schouler on Wills (5 Ed.) pars. 456, 458, p. 576; 1 Alexander's Comm. on Wills (1917 Ed.) pp. 83, 90, 91. (2) The court erred in declaring that the unprobated will of Jean Graham revoked the joint will. The will of Jean Graham was never probated, and a will cannot take effect until probated, and where the title to land is involved an unprobated will cannot affect the title, 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. Farris v. Burchard, 242 Mo. 1; Snuffer v. Howerton, 124 Mo. 637; Smith v. Estes, 72 Mo. 310; Stowe v. Stowe, 140 Mo. 594; Cohen v. Herbert, 205 Mo. 537. (3) The court erred in excluding the testimony offered by appellant to prove that he properly cared for and supported his father, Alex Graham, Sr., during his lifetime, and that he properly cared for and supported his mother, Jean Graham. That is an issue raised by the pleading and under the terms of the will makes a contract such as would preclude Jean Graham in equity from revoking her part of the joint will. Bower v. Daniel, 198 Mo. 289, 321; In re McGinleys Estate, 257 Pa. St. 478; Schouler on Wills, par. 453. (4) In this case the survivor, Jean Graham, received the benefits of the joint will by reason of the support for a period of seventeen years, and the rule of law is settled that where the survivor has received the benefits or advantages of a joint will of the other, it would be inequitable to change the will, the other having become irrevokable by reason of death. In such cases equity will impose the trust. In this case the section under which the action was brought tries all title, legal and equitable. Jean Graham could not have revoked the joint will of Alex. Graham, Sr., in so far as it affected his property. 1 Alexander's Comm. on Wills, par. 81, pp. 93, 94; 40 Cyc. par. 3, p. 2117. The trust on the property, of course results in favor of the beneficiaries of the will revoked in violation of the agreement. Bower v. Daniel, 198 Mo. 298. (5) The most strict construction which could have been given to the will at bar is that it created an estate in fee simple on a condition subsequent. Alexander v. Alexander, 156 Mo. 419; 40 Cyc. 1711; Wood v. Ogden, 121 Mo.App. 668. Mere non-performance of the condition will not divest the estate. Performance of the condition may be waived and the estate continue in the grantee after the breach of the condition until the person who has the right to insist upon a performance elects to declare a forfeiture. Ellis v. Kyger, 90 Mo. 600; O'Brien v. Wagner, 95 Mo. 93. (6) If the estate is subsequent in character, then the estate vests immediately. The law favors the vesting of estate, and where there is a reasonable doubt as to the time an estate is to vest, the doubt should be resolved in favor of the earliest possible date when it can vest. Jones v. Jones, 223 Mo. 443; Deacon v. St. Louis Union Tr. Co., 197 S.W. 261; Tindell v. Tindell, 167 Mo. 225. The statements made in the will of Jean Graham as to appellant failing to support her, are incompetent, the statements therein being self-serving, and in violation of the rule against hearsay. Hitt v. Hitt, 150 Mo.App. 635.
Barney Reed and Embry & Embry for respondents.
(1) Under the provisions of the statutes, land cannot be sold for debts against testator's estate after ten years from date of death of testator. A will which provides, as this one did, that the will should not take effect until the date of the death of the survivor, shows absurdities and impossibilities in the event the survivor lived more than ten years, and the life-time of the survivor after the death of first joint maker being uncertain makes demand that the terms of the will be disregarded and held to be legally of no account. Sec. 179, R.S. 1919. (2) Our statutes contemplate that letters of administration or testamentary be taken out within thirty days from date of death of a decedent. Sec. 8, R.S. 1919. (3) The will of Alex and Jean Graham attempted to give Charles F. Graham an estate in remainder, without creating a prior or particular estate on which the remainder may rest, and for this reason the estate in remainder to Charles F. Graham must fail. 2 Washburn, Real Property (5 Ed.) p. 586; Tiedeman, Real Property, sec. 396; Payne v. Payne 119 Mo. 174. (4) The court of last resort in the State of Connecticut, in dealing with question of joint will, and which recites that it shall not take effect, until the death of the survivor, says that such a will presents a scheme of disposition which is legally impossible. The facts in above case and the one at bar are the same. The court did right in distributing the estate according to law of descent and distribution, as to all those who answered. State Bank v. Bliss, 67 Conn. 317; 1 Schouler, Wills and Admin., p. 227. (5) The identical question involved in this case was before the Supreme Court of Arkansas, and the court declared: The will was declared to be invalid. Hershy v. Clark, 35 Ark. 17. (6) The Supreme Court of Ohio, 14 Ohio 157, holds joint wills are not valid, and while the above case has in some respects been reviewed by the same court adversely, yet the case first cited has been followed by the Supreme Court of Iowa, and has been approved, and under the decision of the Iowa court in Murphy Case, 14 Iowa 177, a joint will is void. (7) Objection to the competency of the will of Jean Graham, on account of certificate of probate, comes too late in appellate court. No such objections were made in trial court. Sawyer v. French, 235 S.W. 129. (8) The court did not base its judgment in this case, on the fact that Jean Graham executed a revoking will. The suit was filed for purpose of clearing title, and not to establish or contest a will, either of Alex Graham and Jean Graham jointly, or Jean Graham alone. The answer of appellants shows they defend and claim as heirs at law of Alex Graham not alone by reason of any revoking will but because of the invalidity of the will of Alex Graham. A defendant can set forth as many defenses as he has to any course of action. The judgment speaks for itself, and it shows the court found respondents had certain interests in the land.
HIGBEE, C. Railey and Davis, CC., concur.
This is an action to determine title to a farm of 220 acres in Miller County.
The petition states that plaintiff is the owner and in lawful possession of said farm; that he acquired it through the last will of Alexander Graham, Sr., deceased, and that the defendants claim some title or interest therein adverse to plaintiff and prays determination of the title.
Two of the defendants, Gertrude Ray and Ruby Ray, minor grandchildren of Alexander Graham, Sr., answered by their guardian ad litem. The answer of Samuel D. Graham, Jane E. Bell and Andrew M. Graham, averred that Alexander Graham, Sr., died intestate in the year 1902, and, after a general denial, asserted an interest in the land as heirs of the said deceased, and also by being devisees named in the last will of their mother, Jean Graham, deceased. The answer proceeds: "Said defendants further state that Alex Graham, Sr., deceased, and Jean Graham during their lifetime executed a certain written instrument now of record in the Probate Court of Miller County, Missouri, which written instrument purported to give to Charles F. Graham, plaintiff herein, the land described in the petition, in consideration that he, the said Charles F. Graham, would support the said Alex Graham and Gene (Jean) Graham, and the survivor of them during their lifetime; and after the death of the said Alex Graham, Sr., aforesaid, Gene (Jean) Graham, his widow, survived him a long number of years, and the plaintiff, Charles F. Graham, wholly failed, refused and neglected to support her, the said Gene (Jean) Graham, during her lifetime, and by such neglect, failure and refusal the said Charles F. Graham forfeited all of the right, title and interest which he might otherwise have claimed by reason of the said joint instrument above referred to purporting to give him an interest in the lands described in plaintiff's petition." The answer further avers that because of the failure of plaintiff to provide for her, Jean Graham, by her last will, revoked the joint written instrument so executed by her and her husband. The answer concludes with a prayer that they be decreed an undivided three-sevenths interest in the land.
James Graham filed no answer. Margaret E. Harbison, Elmer Graham, Edgar Graham, Opal Roberts and William Graham, defendants, filed disclaimers.
The reply admitted that ...
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