Hughes v. Burriss

• Citation: 85 Mo. 660
• Parties: HUGHES et al., Appellants, v. BURRISS et al.
• Decision Date: 30 April 1885
• Court: Missouri Supreme Court

85 Mo. 660

HUGHES et al., Appellants,

v.BURRISS et al.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Pettis Circuit Court.--HON. J. P. STROTHER, Judge.

REVERSED.

B. G. Boone and E. J. Smith for appellants.

The proceeding from the presentation of the will in the probate court, till final judgment declaring it was not her will in the circuit court, was one proceeding. Morse and Burriss bought pendente lite. They bought subject to the result of the suit and as it resulted in establishing there was no will, they holding under the will took nothing. Dickey v. Malechi, 6 Mo. 177; Benoist v. Murrin, 48 Mo. 48; Tapley's Adm'r v. McPike, 50 Mo. 589.

Philips & Jackson for respondents.

(1) Courts of probate and none other have jurisdiction in the first instance, to admit to probate and pass on the existence and validity of the last will and testament of one deceased. As such, their judgments cannot be collaterally assailed. They are, until set aside, in a direct proceeding, therefore, as binding and conclusive as the judgment of the highest courts in the land over any subject matter within their jurisdiction. Banks v. Banks, 65 Mo. 432; Dilworth v. Rice, 48 Mo. 124: Patten v. Tallman, 27 Me. 27; Grignon's Lessee v. Astor, 2 How. 319; Davis v. Gaines, 14 Otto, 386; Wyman v. Campbell, 6 Port. (Ala.) 220; Ballou v. Hudson, 13 Gratt. 682; State v. McGlynn, 20 Cal. 233. (2) It is well established law that while the title of a plaintiff, or party to a judgment, will be forfeited by a subsequent reversal or annullment of the same, yet the title of a stranger who purchases in good faith from the beneficiary under the judgment will not be affected thereby. Vogler v. Montgomery, 54 Mo. 577; Gott v. Powell, 41 Mo. 420; Voorhees v. Bank, 10 Pet. 475; Gray v. Brignarallo, 1 Wall. 634. So, while it is true, if the title had remained in Roley, the devisee, until the will was declared void by the decree of the circuit court, the property would have been restored to the contestants, yet having been conveyed by the devisee during the existence and force of the judgment of probate to an innocent purchaser for value, the title is gone from the heirs. (3) It is said by appellant that the judgment of probate is ex parte, without notice, in fact, to the heir, and that no judgment is binding without notice to the party affected thereby. Ordinarily this is true. But they are judgments in personam. The proceedings in the appointment of administrators and the probate of wills are essentially proceedings in rem. They are against and bind the property itself, the res. The heir is presumed to know of the death of the ancestor. He is not a necessary party to the proceedings, for the court, pro bono publico, takes jurisdiction of the matter to preserve the estate. It acts on the thing itself, and its judgment, for the time being, binds the property. This is the recognized law. Garvin's Adm'r v. Williams, 50 Mo. 212; Wyman v. Campbell, 6 Port. (Ala.) 232; Dilworth v. Rice, 48 Mo. 124; Grignon's Lessee v. Astor, 2 How. 319. (4) The question in this case was directly passed on and favorably to respondent in Steele v. Renn, 50 Tex. 467. To the same effect are the cases of State v. McGlynn, 20 Cal. 268, and Davis v. Gaines, 14 Otto, 396.

NORTON, J.

On the twentieth of September, 1872, one Emily Roley died seized in fee of certain real estate in Henry county, Missouri. She made a will devising this land in fee to her husband, John I. Roley. At the November term, 1872, of the probate court of Henry county, this will was duly presented and admitted by said court to probate. There was born alive of said marriage between said Emily and John Roley a child, which gave him, aside from the devise, a life estate by the curtesy in said land. In October, 1875, said John Roley, by deed of warranty, sold said land to one C. C. Morse for value received. On the first day of February, 1876, said Morse leased said land to the defendant, James M. Burriss, and another, as coal land for mining purposes, for a term of three and one-third years thereafter. The interest of said second party in said lease passed by trade to one of the other defendants, the brother of said James Burriss. The Burrisses, after much prospecting, discovered valuable coal deposits, and at once began mining operations thereon. In the fall of 1876, the plaintiffs, as heirs at law of said Emily Roley, instituted suit in the probate court of said county to set said will aside. The cause by consent was transferred to the circuit court of said county, as the probate court had no jurisdiction to try such issue, where on a contest between them and said John Roley, the will was declared not to be the last will and testament of said Emily Roley.

On the ninth of November, 1878, the plaintiffs brought this action against the defendants who were mining on said land under said lease, to enjoin them as trespassers committing waste on the freehold. The cause was transferred by change of venue to the Pettis circuit court, where it was heard. The court dissolved the injunction and dismissed the bill. A jury was empaneled and assessed the defendants' damages consequent upon the injunction. From these judgments the plaintiffs prosecute this appeal.

The question decisive of this case under the facts above stated is, was the deed of John Roley, executed in 1875 after the will of Emily Roley was admitted to probate by the probate court, effectual to pass the fee in the land mentioned to Morse, the grantee, as against the heirs of said Emily, notwithstanding said will was declared not to be the will of said Emily by the judgment of the circuit court, in a proceeding in said court instituted by the heirs contesting the validity of the will within five years after the order of the probate court admitting the will to probate was made? An affirmative answer to this question affirms the judgment and a negative answer reverses it. This question is, we think, solved by our statute relating to wills and their probate, and the construction put upon it by adjudications of this court hereinafter referred to. It is provided by section 3972, Revised Statutes, that the probate court or clerk thereof in vacation, subject to the confirmation or rejection by the court, shall take proof of last wills. “When any will is exhibited to be proven, the court or clerk may immediately receive the proof and grant a certificate of probate, or, if such will be rejected, grant a certificate of rejection.”

It will be perceived that under these sections any person may present, either to the probate court, or its clerk in vacation, a will for probate, without being required to give any notice whatever to any party interested in the probate or rejection thereof. No right is given by the statute to any such party to appear and contest the proceedings, either before the court or clerk, but the whole proceeding is ex parte and without notice, and no appeal is given from the action of the court in admitting or rejecting the will. We think it is clear from sections 3980, 3981, and 3982, of Revised Statutes, that it was not the design of the legislature to make the action of the probate court in such a proceeding final and binding on the parties interested. The said sections are as follows: “Section 3980. If any person interested in the probate of any will, shall appear within five years after the probate or rejection thereof, and by petition to the circuit court of the county, contest the validity of the will or pray to have a will probated which has been rejected, an issue shall be made up whether the writing produced be the will of the testator or not, which shall be tried by a jury, or, if neither party require a jury by the court.” Section 3981: “The verdict of the jury, or finding of the court shall be final, saving to the court the right of granting a new trial as in other cases and to either party an appeal in matters of law to the Supreme Court, or St. Louis court of appeals.” Section 3982 provides that: “If no person shall appear within the time aforesaid, the probate or rejection of such will shall be binding, saving to infants, married women, or persons of unsound mind a like period after their disabilities are removed.” We understand these statutory provisions to mean that an ex parte order, such as the probate court is authorized to make in admitting a will to probate, shall not be conclusively binding on the parties interested till after the expiration of five years from the time such order is made, nor conclusively binding on parties interested if they are infants, married women, or persons of unsound mind, till after the expiration of a like period after their respective disabilities are removed. As to such parties the legislature in the sections above quoted has characterized the force and effect to be given to the order of a probate court probating a will, and we are not authorized to give such order any greater force or effect.

In the case of Dickey v. Malechi, 6 Mo. 177, decided in 1829, this court, speaking...