In re Connor's Estate

• Citation: 162 S.W. 252,254 Mo. 65
• Parties: In re CONNOR'S ESTATE.
• Decision Date: 06 December 1913
• Court: United States State Supreme Court of Missouri

162 S.W. 252

254 Mo. 65

In re CONNOR'S ESTATE.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

Rehearing Denied January 3, 1914.

1. EQUITY (§ 136)—JURISDICTION.

The jurisdiction of a court of equity is measured by the allegations of the bill, and not by the proof, and a bill may state grounds invoking equitable relief, and thereby confer jurisdiction of the cause, and a failure of proof will authorize a dismissal, but will not defeat the jurisdiction.

2. WILLS (§ 786)—TESTAMENTARY GIFT TO WIFE—ELECTION—EQUITABLE RELIEF.

A bill by a next friend of an insane widow, which alleged that the will of her deceased husband did not make adequate provision for her, and which charged her legal option to reject the will and her inability to so reject, because of her adjudicated insanity, and that the probate court, and the judge thereof, and her guardians were opposed to her disavowing the will, and

that the guardians were refusing to renounce it, though it was for the widow's best interests, and that the hostile actions were the result of a conspiracy against her, stated facts sufficient to invoke the jurisdiction of equity to hear the case, and determine whether the widow should elect to take under the will or under the statute.

3. EQUITY (§ 44)—JURISDICTION—EXCLUSIVE —PROBATE COURT.

Probate courts are not courts of equity, and they have not power to hear and determine an equitable application to renounce or affirm a will for a lunatic, or hear and determine the application for appointment of a suitable person to decide for the lunatic, whether to affirm or renounce the will, or to direct a guardian to either take under the will or renounce the will; but the matter is exclusively within the jurisdiction of a court of equity.

4. WILLS (§ 782)—ELECTION—JURISDICTION.

Rev. St. 1909, § 355, providing that the election of a widow to take under the statute or under the will of her deceased husband shall be made by a declaration in writing duly acknowledged and filed within 12 months after the granting of letters testamentary, and that, where a widow entitled to the benefit of election under this article shall be insane, the lawful guardian may elect, applies to the renunciation of a will referred to in section 361, declaring that a wife shall not be endowed in any real estate whereof her husband died seised, unless she shall elect not to accept the provisions made for her by the will devising real estate in lieu of dower, and, where a guardian of an insane widow does not elect to take under the will, equity has jurisdiction to provide for an election whether to take under the will or under the statute.

5. WILLS (§ 786)—INSANE WIDOW — ELECTION—QUESTION FOR COURT.

A court of equity, in determining whether an insane widow shall by her guardian elect to take under the will or under the statute, must consider her best interests, which do not necessarily mean interests from a monetary viewpoint alone, and must consider the fact that she is permanently insane, and that testator could dispose of his property as he pleased so long as he made ample provision for her; but it could not consider the interests of her relatives.

6. WILLS (§ 786)—INSANE WIDOW—ELECTION—QUESTION FOR COURT.

Where testator provided for the payment of $150 per month for the life of his insane wife for her care in an institution, and further declared that such other sum should be taken from his estate as might be necessary for her care in the opinion of the managers of the institution, and she was hopelessly insane, and about 60 years of age, the court should direct her guardian to elect to take under the will.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

In the matter of the estate of Melissa Connor, a person insane, by John B. Cole, her next friend, against E. N. Perry, her guardian, and others, for election by the next friend for Melissa Connor to take under the statute, and not under the will of her deceased husband. From a judgment denying relief, the next friend appeals. Reversed and remanded, with directions.

The facts of this case, when stripped of all coloring matter which is usually thrown in where there is a legal struggle for a large sum of money, are few and simple. In the early 70's Thomas Connor came to Jasper county, Mo., and, as we gather it from the record, was married in about 1874. By dint of good fortune he accumulated much property, in value a million or more, and this is the real bone of contention here. Whilst it is true that the action of our consciences is in a way sought in the interest of one hopelessly insane, the whole record bespeaks a grab for cash, rather than an earnest and sincere appeal to a court of conscience. In 1887 Mrs. Melissa Connor was taken by her husband, Thomas Connor, to "St. Vincent's Institution for the Insane," then located in the city of St. Louis, but later removed to the county of St. Louis, but near the said city. With but one short interval, this institution has been her home from that date to the date of the trial of this cause by the chancellor below. The record shows that Mrs. Connor is insane, and has been insane during all these years, and that her trouble is incurable. The record shows that her husband was very solicitous as to her welfare whilst she was being cared for at this institution, and when his end was nearing expressed his solicitude for her future care. In December, 1901, Thomas Connor executed a will, in which he provided for his insane wife thus:

"First. I will and bequeath to my beloved wife Melissa Connor the income of one hundred thousand dollars to be paid to her annually in case she recovers her mind and health, and after her death the principal to be divided as hereinafter provided with the rest and balance of my property; but so long as my wife shall remain in her present mental state then it is my will and desire that there be set apart and paid for her care, comfort and support the sum of one hundred and fifty dollars per month, and such other and further sum as it may be necessary to expend in the judgment and opinion of the Sisters of Charity at St. Vincent's Institution in St. Louis, Missouri, for her comfort, care, treatment and attendance, it being my wish and desire that she shall at all times and under all circumstances have the best possible care and treatment that can possibly be had and provided this devise being in lieu of dower or other interest in my estate and property." (The italics are ours.)

In 1903 Mr. Connor adopted by deed a little girl, who, by the deed, signed by the girl's father as the surviving parent and Thomas Connor, was to be known as Agnes Connor. The original will, after providing for the wife as above indicated, left the residue of his estate to five of his own blood relatives. After the adoption of the little girl, a codicil was added in 1903, so that the adopted girl would share equally with the relatives above named. There was also another codicil by which he devised $100,000 in Joplin Waterworks Company bond, each to the cities of Tiffin, Ohio, and Joplin, Mo., the former the city of his birth, and the latter the city of his adoption. Mr. Connor died in San Antonio, Tex. (where he had gone for his health) March 29, 1907. April 8, 1907, his wife, Melissa Connor, was formally adjudged insane by the probate court of Jasper county, Mo., and Col. Wm. H. Phelps was appointed and qualified as her guardian. In less than a year he resigned, and at his request E. N. Perry was appointed guardian of Mrs. Connor. Neither Phelps nor Perry took any steps to disavow the will of Thomas Connor, and, on the other hand, were desirous of abiding by the will. Just before the end of the year the blood relatives of Mrs. Connor (her sisters) became extremely solicitous about her, and notified Mr. Perry that as her guardian he had the right to elect to disavow the will of Thomas Connor, and have his ward take such part of the estate as the law would allow her. This portion they claimed to be one-half thereof. This notice was served upon Perry at Noel, McDonald county, Mo., on April 17, 1908, and, according to the view then entertained by the parties interested, the election to be made under R. S. 1899, § 2939, had to be made before midnight of that day. Believing, as they had good reasons to believe, that Perry would not disclaim the will for his ward, the counsel for Mrs. Connor's relatives besought the equity side of the circuit court of Jasper county. Upon an ex parte hearing the circuit court appointed Hon. John B. Cole, a member of that bar, as next friend for Melissa Connor, and by order appointed Hon. S. H. Claycomb as a commissioner of the court to make an election for Mrs. Connor. Gov. Claycomb, by written instrument, disavowed the will of Thomas Connor, and elected for Mrs. Connor to take under the law. This order of the circuit court was made about 10 o'clock p. m., and there was a race against time to get the written instrument executed by Gov. Claycomb filed at Carthage before midnight. The Governor, fearing that his age might be against him in the race, selected two younger and nimbler men to go to Carthage. These gentlemen succeeded in getting the instrument filed by the recorder of deeds prior to midnight, and also succeeded in getting it pushed under the door of the probate court room prior to midnight. It is intimated that the probate judge was hiding out; but the trial judge, in his finding of facts, found against this view of the evidence, and, in our view of it, this subject need not be pursued. The probate judge did file it on the morning of the 18th of April. As stated above the order made by the circuit court was made ex parte, and without notice to any of the interested parties; but it was required that all interested parties be notified that they appear, and show cause, if any, why such preliminary order and judgment should not be made final and permanent. Later the parties did appear, and the...