Harwell v. Magill

• Decision Date: 25 July 1941
• Docket Number: 37557
• Parties: Dora Harwell (nee Magill), Nella Selvidge (nee Magill), Irene Estes (nee Magill), Glenn Harwell, Gladys Foard (nee Harwell), and Ida Magill, Widow of Henry Magill, v. W. H. Magill, John Magill, George Magill and Fred Magill, Appellants
• Court: Missouri Supreme Court

153 S.W.2d 362

348 Mo. 365

Dora Harwell (nee Magill), Nella Selvidge (nee Magill), Irene Estes (nee Magill), Glenn Harwell, Gladys Foard (nee Harwell), and Ida Magill, Widow of Henry Magill, v. W. H. Magill, John Magill, George Magill and Fred Magill, Appellants

No. 37557

Supreme Court of Missouri

July 25, 1941

Appeal from Carter Circuit Court; Hon. Will H. D. Green Judge.

Affirmed.

Lawrence E. Tedrick for appellants.

(1) When the plaintiffs abandoned their prayer for injunctive relief, there was nothing left for the court except the construction of the will, and this being true the court should have dismissed plaintiffs' petition, for a court will not entertain jurisdiction of a suit brought for the sole purpose of construing a will without seeking other relief. Haugh v. Bokern, 30 S.W.2d 47. (2) Courts of equity will not construe will on application of one claiming mere legal title. Haugh v. Bokern, 30 S.W.2d 47. (3) Since Ida Magill, the widow of the testator, has a life estate in the land described in the will as the "Home Place," unless she remarried, the interest of the other heirs therein could not be ascertained until the determination of the widow's estate, and it has been consistently held by the courts of the various states, that a court of equity will not construe a will so as to determine future rights. In re Quigley's Estate, 198 Pa App. 85; 69 C. J., p. 868. (4) Courts will not construe clauses of a will creating remainders for the purpose of determining their nature, validity, operation and effect during the life of the life tenant. 69 C. J., p. 869; Morrill v. Roberts, 117 Me. 465; Minot v Taylor, 129 Mass. 160; In re Good's Estate, 260 N.Y.S. 292; In re Gill's Estate, 155 N.Y.S. 1019; Fleishman v. Bregel, 197 Md.App. 593. (5) A bill in equity for the construction of a will cannot be maintained by one who has no present interest in the property. 69 C. J., p. 872; In re Gill's Estate, 155 N.Y.S. 1019. (6) The refusal of the court to permit the defendants, M. H. Magill, John Magill and George Magill to testify constitutes reversible error. Sec. 1723, R. S. 1929. (7) The next of kin of a decedent or the beneficiaries under his will, are not surviving parties to a contract with him, so as to render them incompetent as witnesses in a contest over the will or the distribution of the estate. 70 C. J., p. 280; McKee v. Downing, 124 S.W. 7; Jones v. Jones, 36 Md. 447, 11 Am. Rep. 505. (8) Testator's son, nominal party, held not disqualified from testifying in mother's favor to circumstances to show testator's intent relative to property not within strict terms of codicil. Paris v. Erisman, 300 S.W. 487. (9) In a suit to cancel a deed made by the deceased, the mere fact that the witnesses were parties to the suit did not disqualify them. Nordquist v. Nordquist, 14 S.W.2d 583. (10) The disqualification of a witness is not general but is limited to the transaction between the witness and the party dead. Elsea v. Smith, 202 S.W. 1071; Goodrich Rubber Co. v. Bennett, 281 S.W. 75. (11) In construing will, court must find out testator's intention as gathered from four corners of will, and must control unless it contravenes some established rule of law. St. Louis Union Trust Co. v. Hill, 76 S.W.2d 685. (12) Testator's intention is to be arrived at by what will actually says and not by what court might imagine testator intended to say or would have said if he had decided to further explain his intention, and language used is usually to be taken and understood in its ordinary sense and primary meaning. First Presbyterian Church of Louisiana v. Lynott, 78 S.W.2d 396; Mo. Dig. (Wills) Key No. 440. (13) In construing will, court must gather testator's intention from words used in the will. Carter v. Boone County Trust Co., 92 S.W.2d 647, 338 Mo. 629; Mo. Dig. (Wills) Key No. 440. Another reason why the judgment rendered in this case is erroneous, is the fact that the court attempted to determine the interest of each of the heirs of the testator. This may not be done because the interest of the heirs would be a contingent interest rather than a vested one, and if one of them should die before the widow, then his contingent interest would become extinct. Dickerson v. Dickerson, 110 S.W. 700, 211 Mo. 483. (14) Contingent interest of son of grantee of life estate, with remainder to children who are alive at his death, is terminated by his death before that of grantee. Donaldson v. Donaldson, 278 S.W. 686; Mo. Dig. (Remainders) Key No. 10.

Phillips & Phillips for respondents.

(1) This is an action to determine interest and quiet title as authorized by Sec. 1520, R. S. 1929. (a) This section is remedial and beneficial and should be liberally construed. Talbert v. Grist, 201 S.W. 906, 198 Mo.App. 492; Ball v. Woolfolk, 175 Mo. 278. This statute is as broad and far-reaching in its terms as language can make it. Coal Co. v. Dent, 274 S.W. 30, 308 Mo. 547. This section affords a method whereby a plaintiff may enforce any kind of right or interest in real estate, whether legal or equitable, to which rules of equitable procedure apply. Ross v. Alyea, 197 S.W. 268. The action may be maintained without regard to the nature of the estate or interest, whether legal or equitable, certain or contingent present or in reversion or in remainder, or that plaintiff is, or is not, in possession. Utter v. Sidman, 170 Mo. 284. Remainderman in land contingent on this survival of their father, devisees by will, under which they claimed as remaindermen could sue while their father was living for an adjudication of their title. Fountain v. Starbuck, 209 S.W. 900. (b) The above statute is a public statute and it is not necessary to plead it or refer to it in plaintiffs' petition for plaintiffs to avail themselves of its provisions; all that is necessary is for the petition to allege facts to which the statute is equitable. Jones v. C., B. & Q. Ry., 125 S.W.2d 5; Emerson v. Ry. Co., 111 Mo. 161. Where a petition sufficiently states a cause of action based on a public statute of the State, it is immaterial that it does not mention the statute. Blair v. Heibel, 103 Mo.App. 621; Hance v. Wabash Ry., 56 Mo.App. 476. (c) The defendants by their answer and evidence in the trial court presented their case on the theory that this was an action to determine title and they cannot present the case in this court on a different theory. Smith v. K.C. Pub. Serv. Co., 43 S.W.2d 548, 328 Mo. 979; Rath v. Knight, 55 S.W.2d 682. A party who tried his case on theory that his good faith was in issue could not on appeal claim issue of fraud was erroneously submitted. Nick Doffing Co. v. Moeck, 58 S.W.2d 475. Where trial court followed theory of a plaintiff's petition, plaintiff could not complain that trial court tried case on wrong theory. Benz v. Powell, 93 S.W.2d 877, 338 Mo. 1032. For other cases holding that litigants on appeal are bound by position taken in trial court, see cases collected and too numerous to be cited here. West's Digest Appeal & Error, Key No. 882 (3). Where defendants joined with plaintiff in trying case upon certain theory, defendants could not shift their position and urge another theory upon appeal. State ex rel. v. Kelly, 131 S.W.2d 371. (d) Defendants in their answer asked the court to construe the will and determine the title of the parties to the land in suit, and they are therefore now estopped to allege in this court that the trial court was without authority to do so. (2) This court is precluded from passing on the question of whether or not the refusal of the trial court to permit the defendants, W. H. Magill, John Magill and George Magill, to testify, constitutes reversible error for the reason that the error, if any, of the trial court in holding them to be incompetent witnesses, was not presented to the trial court in defendants' motion for a new trial. In Assignment 5 of their motion for a new trial defendants merely say: "5" The court erred in rejecting competent, relevant and material evidence offered by the defendants. This allegation is not sufficient to preserve the ruling of the court that W. H. Magill, John Magill and George Magill were incompetent witnesses and that they were not permitted to testify for that reason. Drake v. Kansas City Pub. Serv. Co., 63 S.W.2d 80, 333 Mo. 529; Howard v. Hurst, 163 Mo.App. 641, 147 S.W. 497; Alexander v. Sov. Camp W. O. W., 186 S.W. 4, 193 Mo.App. 411; Hill v. Alexander, 77 Mo.App. 303. (3) The court will not consider an alleged error in rejecting a witness not assigned in a motion for new trial below. Long v. Story, 13 Mo. 4; Hill v. Alexander, 77 Mo. 296; State ex rel. Wakefield v. Richardson, 77 Mo. 589; Berman v. Hoke, 61 Mo.App. 376. It is axiomatic that the appellate court will review no assignment of error that was not presented to the lower court in appellants' motion for a new trial. See cases too numerous to set out here. West's Digest Appeal & Error, Key No. 301; Blankenship v. Pub. Serv. Co., 71 S.W.2d 723; Murphy v. Cole, 88 S.W.2d 1023, 338 Mo. 13, 103 A. L. R. 505. The Supreme Court has no authority to pass on assignments of error which were not called to the trial court's attention in the motion for new trial, notwithstanding that in an equity case it may weight the evidence on appeal. Aetna Ins. Co. v. O'Malley, 124 S.W.2d 1164. (4) A part of the "Home Place" was testator Magill's homestead and beyond any question of a doubt, upon his death the title to it "passed to and vested in the widow" and as such widow, she had, and still has, because she is still living, being one of the plaintiffs, and unmarried, "the right to occupy such homestead during her life or widowhood, and upon her remarriage or death it shall pass to the heirs of the husband." R. S. 1929, sec. 612; Regan v. Ensley, 222 S.W. 773...