Hines v. Hines

• Decision Date: 09 May 1912
• Citation: 147 S.W. 774,243 Mo. 480
• Parties: MADISON HINES et al. v. WILLIAM H. HINES et al., Appellants
• Court: Missouri Supreme Court

147 S.W. 774

243 Mo. 480

MADISON HINES et al. v. WILLIAM H. HINES et al., Appellants

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from Caldwell Circuit Court. -- Hon. F. H. Trimble, Judge.

Reversed and remanded (with directions).

Crosby Johnson, C. C. Johnson and J. M. Davis & Son for appellants.

(1) Until a will is probated it is not effective to pass title. Shaffer v. Howerton, 123 Mo. 637; Dublin v Chadbourn, 16 Mass. 433; Bacon v. Railroad, 145 Ill.App. 502. (2) Probate in common form is as final and conclusive after the lapse of the statutory period for contest as probate in solemn form. Crippen v Dexter, 79 Mass. 330; Wells v. Wells, 4 T. B. Monroe, 152; Duncan v. Duncan, 23 Ill. 324; Parker v. Parker, 65 Mass. (11 Cush.) 519. (3) Contest must be in courts where probated. Crippen v Dexter, 79 Mass. 330; Tilt v. Kelsey, 207 U.S. 43; Corning's Will, 159 Mich. 474; Rachnan v. Taylor, 204 Mass. 394; Bryan v. Nash, 110 Va. 329. (4) Admission of will to probate is a special proceeding and not governed by the usual rules of pleading and practice. Wells v. Wells, 4 T. B. Monroe, 152; Clearchrings Twp. v. Blough, 88 N.E. 611. (5) Where the probate act is silent, resort may be had to the general code as to parties and practice in contest cases. Lilly v. Tobein, 103 Mo. 477; State ex rel. v. Guinotte, 157 Mo. 513. (6) Answers in a contest case, averring that defendants had no sufficient information to affirm or deny the allegations of the petition, are equivalent to a general denial. Pomeroy on Remedies, sec. 640; Bliss on Code Plead., sec. 326; Walsor v. Hawkins, 60 Mo. 560; Humphrey v. McCall, 70 Am. Dec. 626. (7) More was required in the Sloan contest to give the circuit court jurisdiction than merely filing a petition and getting service on defendants. Heady v. Crouse, 203 Mo. 100. (8) The relief granted ought not to be broader than issues tendered by the pleadings. Powell v. Crow, 204 Mo. 481. Howard v. Brown, 197 Mo. 53. (9) The defendants to the contest suit were adversaries of Mrs. Sloan, but not of each other. Badeau v. Logan, 2 Paige, 209; Glasner v. Weusberg, 43 Mo.App. 244; Roselle v. Bank, 119 Mo. 84. (10) A decree is only conclusive on adversary parties. McMahon v. Geiger, 73 Mo. 145; Fiene v. Kirchoff, 176 Mo. 576; Freeman on Judgments (1 Ed.), sec. 178. (11) As neither the bank nor Johnson was made parties to the contest proceeding, the decree in the Sloan case did not affect their rights under the deed of trust. Pease v. Iron Co., 49 Mo. 124; Eddie v. Parks, 31 Mo. 477; McCarthy v. Scott, 113 U.S. 340; Rice v. Hoskins, 105 Mich. 303; Short v. Galway, 83 Ky. 501. (12) In Missouri a will contest is in the nature of an appeal from the decision of the probate court. Hughes v. Burriss, 85 Mo. 660; Schiff v. Peters, 111 Mo.App. 447; Benoist v. Marvin, 48 Mo. 48. (13) A proceeding to establish a will is a proceeding in rem. Jourdan v. Meyer, 31 Mo. 40; 23 Am. & Eng. Ency. Law (2 Ed.), 112, 116, 134, 143; Freeman on Judg., sec. 606; Wells v. Wells, 5 Litt. 273; State v. McGlynn, 20 Cal. 228. (14) A contest can only be inaugurated by filing a petition in the circuit court. Kenrick v. Cole, 46 Mo. 83; Stevens v. Larwill, 110 Mo.App. 140; Stowe v. Stowe, 140 Mo. 594; Stevens v. Oliver, 200 Mo. 492; Banks v. Banks, 65 Mo. 432. (15) A foreign probated will cannot be contested until recorded in the probate court; otherwise it would not be in the nature of an appeal. R. S. 1909, secs. 1788, 4630; Cabanne v. Skinker, 56 Mo. 357. (16) The judgment of a probate court of any State admitting a will to probate is conclusive until reversed. Hilton v. Guyot, 159 U.S. 166; Rorer on Interstate Law, 4, 194, 264; Swearingen v. Morris, 14 Ohio St. 424; Despard v. Churchill, 53 N.Y. 192. (17) Where the courts of his domicile have declared a testator sane and not unduly influenced, the findings of the court are conclusive on those points, and the courts where his real estate is located cannot, under pretext of ascertaining whether it conforms to the laws of the latter state, relitigate these issues. Crippen v. Dexter, 79 Mass. 330; State v. Court, 34 Mont. 96; Rorer on Interstate Law, 266. (18) Probating a will is a judicial act. Keith v. Keith, 80 Mo. 125; Bright v. White, 8 Mo. 421. (19) A duly authenticated copy of a foreign probate is under the protection of the Constitution and laws of the United States. Bright v. White, supra; Drake v. Curtis, 88 Mo. 644; Ives v. Salisbury, 56 Vt. 565; Willet's Appeal, 50 Conn. 330; Jones v. Williams, 31 Ark. 92; Woerner's Am. Law of Adm., sec. 226, p. 496. (20) Where a will is proven in a sister state, in conformity with our laws, the judgment is final and conclusive. Stevens v. Oliver, 200 Mo. 492; Cohen v. Herbert, 205 Mo. 537; Woerner's Law of Adm., sec. 226, pp. 493-496; Long v. Patten, 154 U.S. 573; Tilt v. Kelsey, 207 U.S. 43; Little v. Herndon, 10 Wall. 26; Rorer on Interstate Law, 264; Estate of Clark, 148 Cal. 108. (22) A will conforming to our law, probated in a sister state, passes title to Missouri land, without being probated or recorded here. Lewis v. St. Louis, 69 Mo. 592; Halle v. Hill, 13 Mo. 613; Keith v. Keith, 80 Mo. 123, 97 Mo. 228; Bright v. White, 8 Mo. 421. (23) After title had passed to the devisees, declaring the will void would not divest that title from the devisees. Lambird v. Blumenthal, 26 Mo. 471; 2 Daniels' Chancery Pl. & Prac. 1082. (24) Devolution of title by operation of law never confers a joint title. 1 Wash. on Real Property (3 Ed.), 554; 2 Black. Com. 181. (25) One heir can maintain ejectment for his several shares. McCracken v. McCraken, 67 Mo. 590; Breidenstein v. Bertram, 198 Mo. 328; Baker v. Henderson, 156 Mo. 366. (26) Our probate courts have no jurisdiction to adjudicate on land titles. Shields v. Ashley, 16 Mo. 471. (27) Secs. 3135, 4636 are in conflict. Hence the older is repealed or modified by the later statute. Rorer on Interstate Law, 264. (28) As the devisees have been in possession for more than three years, claiming exclusive title, suit for partition will not lie. Colvin v. Huenstein, 110 Mo. 575; Hutson v. Hutson, 139 Mo. 227; Whitaker v. Whitaker, 157 Mo. 353; 31 Am. & Eng. Ency. Law (2 Ed.), 1147; 146 Mo. 283; 157 Mo. 402, 421; 130 Mo. 639. (29) Right of contest is a several and separate right accrued to each individual heir. Samson v. Samson, 64 Cal. 327; Exp. Povall, 3 Leigh, 316; Gornto v. Bonney, 7 Leigh, 234; Spencer v. Spencer, 79 P. 320; Ellis v. Crawson, 41 So. 942; Palmer v. Bradley, 154 F. 311; Morgan v. Adams, 211 U.S. 627; Hays v. Bowden, 49 So. 122. (30) After a will has been probated it resembles a fraudulent conveyance, and is good as against all the world, except one who successfully attacks it. Jacobs v. Smith, 89 Mo. 673; Whitaker v. Whitaker, 157 Mo. 353. (31) Where the statute regulating probate fixes a limit in time the contestors must bring themselves within its provisions for in such case the limitation destroys the right. 18 Am. & Eng. Ency. Law (2 Ed.), 146; Regabauer v. Railroad, 92 Minn. 620; Farrell v. O'Brien, 199 U.S. 89; Ellis v. Davis, 109 U.S. 485; Railroad v. Hine, 25 Oh. St. 629; Ford v. Clark, 3 F. 849. (32) The limitation makes it a statute of repose. Curtis v. Felard, 17 Mo. 383; Nelson v. Broadhack, 44 Mo. 490; Morgan v. Railroad, 51 Mo.App. 523. (33) Plaintiffs' cause of action being fully barred by the limitation in the Arkansas statute is equally barred here. R. S. 1899, sec. 4280; Barkley v. Tootle, 163 Mo. 594; St. Louis v. Jackson, 128 Mo. 119; Groves v. Watts, 206 Mo. 373. (34) There being no attempt at contest, either in Arkansas or Missouri, for more than three years after the will was probated there, all grounds for contest were foreclosed. Jaicks v. Sullivan 128 Mo. 577; Smith v. Carroll, 41 Mo.App. 460; Sands' Estate, 116 N.Y.S. 426; 19 Am. & Eng. Ency. Law (2 Ed.), 146. (35) Sec. 4280, R. S. 1899, was adopted after section 4636 and repeals the latter insofar as they are repugnant. State ex rel. v. Walbridge, 119 Mo. 383; Evans v. McFarland, 186 Mo. 703; Negabauer v. Railroad, 92 Minn. 620. (36) Devisees are not chargeable with rent of the premises. Smith v. Harrison, 131 Mo. 485; Lilley v. Menke, 126 Mo. 140; Holloway v. Holloway, 97 Mo. 623; Beck v. Kallmeyer, 42 Mo.App. 563; 21 Am. & Eng. Ency. Law, 1171. (37) Legatees and devisees, after accepting the bequest, are estopped from contesting the will. Woerner's Law of Admr., sec. 227, p. 500; Stone v. Cook, 179 Mo. 534; Stoppler v. Sillerberg, 220 Mo. 258; Cochran v. Thomas, 134 Mo. 258; 18 Am. & Eng. Ency. Law, 746; 11 Id. 446; In re Cummings, 153 Pa. St. 397. (38) Courts of one state will not try to reform judgments of sister states. Hassall v. Hamilton, 33 Ala. 280; Milne v. Van Buskirk, 9 Iowa, 558; Bigelow on Estoppel (1 Ed.), 218; Destrehan v. Scudder, 11 Mo. 484. (39) State laws seeking to limit or restrain the credit or effect of judgments of sister state courts are unconstitutional. Story on Constitution, sec. 183; Bigelow on Estoppel, 204; Christmas v. Russell, 5 Wall. 290.

John A. Cross and Pross T. Cross for respondents.

(1) The judgment against the will in the former suit is final, and even though erroneous, it cannot be the subject of collateral attack. The question of the validity or invalidity of that will, was finally and forever settled and determined by the judgment rendered in the suit brought by Emma Sloan to annul said will. In that will contest, the circuit court of Caldwell county had jurisdiction of the subject-matter (the lands being situate in that county), and of all the parties. And, with the exception of defendant bank, all the appellants in this present suit were defendants in that former suit, and their answers therein, show that they made precisely the same defense in behalf of the will in that case, that ...