Hellman Commercial Trust & Savings Bank v. Looney

• Decision Date: 16 July 1917
• Citation: 197 S.W. 144,271 Mo. 545
• Parties: HELLMAN COMMERCIAL TRUST & SAVINGS BANK, Appellant, v. ORAN E. LOONEY et al
• Court: Missouri Supreme Court

197 S.W. 144

271 Mo. 545

HELLMAN COMMERCIAL TRUST & SAVINGS BANK, Appellant, v. ORAN E. LOONEY et al

Supreme Court of Missouri, Second Division

July 16, 1917

Appeal from Polk Circuit Court. -- Hon. C. H. Skinker, Judge.

Affirmed.

Johnson & Sea for appellant.

(1) A will is a muniment of title, only if duly probated; and the probate of a will is a judicial act, which can be shown only by the record of the court. Creasy v. Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Snuffer v Howerton, 124 Mo. 637; Stowe v. Stowe, 140 Mo 594; Cohen v. Herbert, 205 Mo. 537; Farris v Burchard, 242 Mo. 1. (2) One cannot acquire title to land as devisee under a will, where the will has never been established or probated. This purported will, never having been admitted to probate nor recorded in the recorder's office, was, for that reason, inadmissible in evidence and could not pass title, over plaintiff's objection. Bernard v. Bateman, 76 Mo. 414; Keyes v. Munroe, 266 Mo. 115; Snuffer v. Howerton, 124 Mo. 637; Farris v. Burchard, 242 Mo. 1. (3) Plaintiff by itself, as well as grantee of persons having paid valuable consideration for said land, without notice of the purported will of Benjamin Looney, and without means of knowing of same, is entitled to be protected. This court has repeatedly held outside wills, devising real estate in this State, must be recorded in this State, in order to give notice. Is there any reason why the same rule should not apply to wills in this State? Van Syckel v. Beam, 110 Mo. 589; Keith v. Keith, 97 Mo. 223; R. S. 1909, sec. 566; Laws 1870, p. 166. (4) At the death of Benjamin Looney, in January, 1875, his widow took a homestead of 160 acres, if not exceeding in value $ 1500, which is invested in her by operation of law; to which she took a fee simple title, which descended to her children at her death; unless the interest devised her by Benjamin Looney's will was greater in value than the widow "would have the right to take under the law without reference to any wills." The defendants in this case failed to show it was of greater value; without such showing the homestead vested absolutely in the widow. Instruction 2 asked by plaintiff should have been given. Schorr v. Etling, 124 Mo. 42; Ball v. Ball, 165 Mo. 312; Burgess v. Bowles, 99 Mo. 543; Kelsey v. Frazier, 78 Mo. 111; Freemel v. McCall, 73 Mo. 343. (5) The failure of the widow to renounce the will did not deprive her of her homestead. Scharr v. Etling, supra; Bogart v. Bogart, 138 Mo. 419. (6) In January, 1875, when Benjamin Looney died seized of a homestead in fee, the same vested in his widow in fee simple and passed to her heirs after her death. Skouten v. Wood, 57 Mo. 380; Rogers v. Marsh, 73 Mo. 64; Mills v. Mills, 141 Mo. 195; Wilson v. Johnson, 160 Mo. 507. (7) It is beyond the power of the husband to devise the homestead, as much so as by his sole deed to convey or mortgage it. Koes v. Gross, 92 Mo. 647; Schneider v. Hoffman, 9 Mo.App. 280.

Rechow & Pufahl for respondent.

(1) The first and second points made by appellant are certainly good law, when the facts fit. (2) The cases, cited by appellant under point three, are in relation to the probating and recording of foreign wills. Counsel ask, "Is there any reason why the same rule should not apply to wills in this State?" There certainly is. A domestic will is probated in the county of the residence of the decedent. A record of the proceedings in relation to what has been done in the matter of the administration of the estate is found in the office of the probate court of that county. (3) Instruction 2, asked by appellant, was properly refused. (4) The will was properly probated and admitted in evidence. Lockland v. Stevens, 54 Mo. 108; Creasy v. Adams, 43 Mo. 13; Rothwell v. Jamison, 147 Mo. 601; Hartwell v. Parks, 240 Mo. 537; Farris v. Burchard, 242 Mo. 1. (5) The widow, having accepted under the will and never having renounced the same, took only such estate as was given in the will. Davison v. Davis, 86 Mo. 440; Burgers v. Bowles, 99 Mo. 548; Stoepler v. Silberberg, 220 Mo. 258; Wood v. Trust Co., 265 Mo. 525; Schuster v. Morton, 187 S.W. 2.

ROY, C. White, C., concurs. Faris, J., concurs in result.

OPINION

ROY, C.

This is a proceeding to quiet title to two hundred acres of land in Polk County, under section 2535, Revised Statutes 1909.

Benjamin Looney died in January, 1875, seized of 258 acres of land in that county of which the land in controversy is a part. He, at the time of his death, was living upon the land in controversy with his family, which consisted of his wife, Mary M., and three sons by said wife, to-wit, Benjamin L., Jesse E., and William S., all of whom are still living, the defendants herein being the only living children of those three children of the deceased. All of the defendants are minors, appearing by their guardian ad litem.

The deceased and his wife each had three children by former marriages. He left a will the material parts of which are as follows:

"(3rd.) I will and bequeath to my beloved wife, Mary Malica Looney, two work horses, my two-horse wagon and harness, four milch cows and calves, twenty head of hogs and all my sheep, all my household and kitchen furniture and a sufficiency of all the provisions that may be on hand at the time of my death for her and her children that may at that time reside with her as members of the family, for one year's support, and I further will that my said wife have and be allowed three hundred dollars in hard money out of what hard money may be on hand at my death, and I will that the above described and mentioned articles be allowed to my wife, Mary Malica Looney, absolutely, they and the property and interest hereinafter willed and devised to her to be in lieu of all her dower interest in my estate, both real and personal.

"(4th.) I will that all my real estate situated in the county of Polk, in the State of Missouri, known and described as the home place on which I now reside, remain in the possession and control of my wife, Mary Malica Looney, as long as she remains my widow, for the use and support and maintenance of herself and Benjamin Leonidas Looney, Jesse Edward Looney and William Stanford Looney, my youngest sons. And in the event of the death or marriage of my said wife, then and in that event, all of said before mentioned real estate shall descend and absolutely belong to my said sons, Benjamin Leonidas Looney, Jesse Edward Looney and William Stanford Looney, and the heirs of their bodies, share and share alike, and in case of the death of either of them, without heirs of his body, then and in that event the said named real estate shall descend and rest absolutely in the survivors of them, and in case of the death of all three of them without bodily heirs, then and in that case, all of said lands shall be equally divided between my other children, as follows: To Alzira Ruyle one-third part of said real estate, to Matilda Mitchell one-third part of said real estate, to the heirs of Mary Ruyle, deceased, equal shares of one-third part of said real estate, and in the event that said real estate cannot be divided between them in accordance with this my last will, then the same shall be sold to the best advantage by my executor and the proceeds divided as before stated."

The testimony tends to show that three subscribing witnesses to that will appeared before the judge and exofficio clerk of the probate court in vacation and proved the execution of the will, and that their evidence in making such proof was put in writing and subscribed by them before such officer and certified by him and that such proof had subsequently been lost. Attached to said will was the following writing:

"In the Polk County Probate Court.

"Be It Remembered, That, on the 30th day of January, A. D. 1875, personally appeared before me, Judge of Probate for the County and State aforesaid, James P. Slagle, James Utley and Joseph Davis, the subscribing witnesses to the within will of Benjamin Looney, deceased, and being by me first duly sworn, depose and say that the said Benjamin Looney, the testator, subscribed the same in their presence, and published said will or instrument of writing as his last will. That he, the said testator, was at the time of publishing his said will, of sound mind, and that they, said deponents, attested said will as witnesses thereto by subscribing their names to the same in the presence of each other and of said testator."

That will was duly recorded at the time in the "Register of Wills" in the probate court, but was never recorded in the office of the recorder of deeds.

At the trial no formal entry of a judgment of the probate court admitting the will to probate was put in evidence. Judge Rechow of the probate court testified that he helped counsel for defendants search the records of said estate in that court, and, during his cross-examination, the following occurred:

"Q. Now, did you find any order of record admitting this will to probate? A. No, sir, I don't think I did.

"Q. Do you know whether you did or not? A. Yes, sir, I don't think it was ever found."

But the records of the court were not put in evidence to show that they contained no such entry.

The letters testamentary contained this recital:

"Know Ye, That the last will of Benjamin Looney, deceased, hath in due form of law been exhibited, proved and recorded, a copy of which is hereunto annexed; and inasmuch as it appears that Reuben C. Gilmore has been appointed executor in and by said last will to execute the same," etc.

The executor made his settlements as such in the court, and, so far as the evidence shows, the whole administration was conducted by the executor and by the court as though there had been a formal...