In re Koontz v. Wells
| Citation | 172 S.W.2d 965 |
| Decision Date | 24 May 1943 |
| Docket Number | No. 20255.,20255. |
| Parties | IN THE MATTER OF THE APPEAL OF JAMES A. KOONTZ, ADMINISTRATOR WITH THE WILL ANNEXED OF THE ESTATE OF LAVINIA ANN WHITSETT, DECEASED, RESPONDENT, v. MABELLE WHITSETT WELLS, ADMINISTRATRIX D.B.N. OF THE ESTATE OF GEORGE P. WHITSETT, DECEASED, APPELLANT. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.
APPEAL DISMISSED.
W.H.L. Watts for appellant.
(1) The trial court erred in rendering judgment awarding the entire net proceeds of the unconverted war risk insurance policy to respondent instead of to those who were the heirs of the insured as of the date of his death. (a) The will of George P. Whitsett was not in issue in this case: (a-1) First, because the transcript of the probate court proceedings appealed from does not refer to or place the will, or the construction of it in issue. In an appeal from the probate to the circuit court only those matters contained in the transcript may be considered by the circuit court. In re Harr's Estate, 22 S.W. (2d) 209, 214; Branson v. Branson, 102 Mo. 613, 620; 3 C.J., p. 370, sec. 125. (a-2) Second, because the evidence does not state the existence or contents of a will of George P. Whitsett. An agreement or stipulation of fact must be definite, and a part of the record, and can not be treated as broader or more comprehensive than as shown by the record. Spiro v. St. Louis Transit Co., 109 Mo. App. 1, 84 S.W. 148. (a-3) An unsigned pleading is not evidence. Weik v. Williamson-Gunning Adv. Co., 109 Mo. App. 6, 84 S.W. 144. (2) The court erred in that it tried the case on issues not before the court. (a) The appeal from the probate to the circuit court was from the order of distribution only and not from the allowance of fees or taxing of costs. The judgment of the circuit court fixed allowances of costs. See affidavit for appeal in Probate Court, Abs., p. 51; See Judgment of Circuit Court, Abs., p. 9. (b) The jurisdiction of the circuit court in cases of appeal from the probate court is derivative only and only the action of the probate court actually appealed from can be reviewed. In re Harr's Estate, 22 S.W. (2d) 209, 214; Branson v. Branson, 102 Mo. 613, 620; 3 C.J. 370, sec. 125; Leahy v. Campbell, 274 Mo. 343, 356. (3) The court erred in its declarations of law. (a) In its first declaration of law the court erroneously treated the will of George P. Whitsett as being in Evidence in the case, and upon that theory construed the meanings and intent of the purported contents of said will. In re Harr's Estate, 22 S.W. (2d) 209, 214; Branson v. Branson, 102 Mo. 613, 620, 15 S.W. 74; 3 C.J., p. 370, sec. 125; Weik v. Williamson-Gunning Adv. Co., 109 Mo. App. 1, 84 S.W. 148; Leahy v. Campbell, 274 Mo. 343, 356. (b) In its second declaration of law, the court erroneously declared it to be the law that Mabelle Whitsett Wells, administratrix D.B.N., should first pay the costs of administration, including court costs, administratrix' fees and attorneys' fees not to exceed the sum of three hundred dollars, out of the funds in her possession as such administratrix, when the issue of costs, attorneys' fees and administration expense as fixed by the probate court had not been appealed from. The circuit court had no jurisdiction to pass upon or declare the law upon that point. Harr's Estate, 22 S.W. (2d) 209, 214; Branson v. Branson, 102 Mo. 613, 620, 15 S.W. 74; Leahy v. Campbell, 274 Mo. 343, 356. (c) The second declaration of law given by the circuit court is inconsistent with and in contradiction of the terms of the judgment rendered by the court concurrently with the giving of said second declaration of law, in that it declares the law to be that the administratrix should pay not to exceed the sum of three hundred dollars out of the funds in her possession for costs, administration expense, etc., while the judgment of the court decreed and ordered her to pay the sum of four hundred and fifty dollars out of the funds in her possession for such purposes. (d) The first declaration of law is in direct conflict with the federal war risk insurance act in that it diverts government funds provided by said act for the protection of soldiers and sailors and their dependents within the class permitted by said act, to persons outside of the permitted class. Title 38, U.S.C.A., secs. 511, 512, 514. (e) The court erroneously construed the will in its first declaration of law in that it declared the law to be that a residuary clause in a will drawn in 1905 was intended to bequeath to the donee a property right which the act creating said right made it impossible for her to take, and in that said first declaration found it to be the law that the testator could, by indirection, do what the law would not permit him to do directly and thus defeat the purpose of the act. In re Smith Estate, 141 Misc. 651, 253 N.Y.S. 825; Spomberg v. Lidstrom, 187 Minn. 650, 245 N.W. 636, affirmed on rehearing, 187 Minn. 650, 247 N.W. 679. (f) said first declaration of law fastened upon the testator an intent to do that which was legally impossible since the residuary clause in his will left the fund to his wife and not to her estate, and the war risk prohibited her from taking the fund as commuted. In re Smith Estate, 141 Misc. 651, 253 N.Y.S. 825; Spomberg v. Lindstrom, 187 Minn. 650, 245 N.W. 636, affirmed on rehearing in 187 Minn. 650, 247 N.W. 679; Title 38, U.S.C.A., sec. 514. (g) The court's first declaration of law finds that the testator intended a result based upon the language of the residuary clause only, and unsupported by any evidence, to do an act clearly contrary to sound reason, manifestly absurd and impossible. Such intent can not be presumed. In re Smith's Estate, 141 Misc. 651, 253 N.Y.S. 825; Spomberg v. Lidstrom, 187 Minn. 650, 245 N.W. 636, affirmed on rehearing 187 Minn. 650, 247 N.W. 679. (4) The court erred in that it found that the commuted proceeds of the war risk insurance policy in question was an asset of the testator, subject to testamentary disposition instead of an insurance fund payable to persons, who might be designated by the insured in his insurance application or by will, but who must be persons within the permitted class. Title 38, U.S.C.A., secs. 511, 512 and 514; Butler v. Cantley, Commissioner of Finance of Mo., 226 Mo. App. 1047, 47 S.W. (2d) 258; Hallbom's Estate, 179 Minn. 402, 229 N.W. 344; State ex rel. Sorrenson v. Bank, 121 Nebr. 521, 237 N.W. 620; Hallbom v. Pagel, 172 Minn. 402, 229 N.W. 344; In re Cross's Estate (Wash.), 278 Pac. 414; Cassarello v. U.S., 271 Fed. 486; 55 Congressional Record, C.P.T. 8, Oct. 3. 1917, p. 7690; Tax Commission of Ohio v. Rife, 162 N.E. 391, 392; In re Wanzel's Estate, 295 Pa. 419, 145 Atl. 512. (5) The court erred in holding that George P. Whitsett intended by the general language of a residuary clause to bequeath to his wife an asset which, under the law, at the time the will was executed in 1905 did not exist and which, under the law (The Federal War Risk Insurance Act) enacted twelve years later, she was prohibited from taking. The law is a part of every will and a testator is presumed to have known the law and to have written the will with the law in view. Landon v. Bellam, 258 S.W. 440; Murphy v. Enright, 264 S.W. 813.
Martin J. O'Donnell for respondent.
No brief for respondent.
This is an appeal by Mabelle Whitsett Wells, administratrix, d.b.n., of the estate of George P. Whitsett, deceased, appellant, from a judgment of the circuit court wherein the remaining proceeds of a war risk insurance policy issued on the life of George P. Whitsett, now deceased, was ordered paid by his administratrix, appellant, to James A. Koontz, administrator, with the will annexed, of the estate of Lavinia Ann Whitsett, deceased, widow of George P. Whitsett.
The abstract of the record and the agreed statement of facts filed in this case discloses that:
George P. Whitsett died, testate, in 1924; his estate was administered by Lavinia Ann Whitsett, as executrix, and said administration closed; under the terms of his will his widow was the sole beneficiary thereof; a United States War Risk Insurance policy was issued on the life of George P. Whitsett during his lifetime, and same was in full force and effect at the time of his death; under the provision of said policy his widow received $57.50 per month therefrom until her death and and effect at the time of his death; under the provisions of said policy the sum of $3886; Lavinia Ann Whitsett died in April, 1938, leaving a will...
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