Jones v. Nichols
| Decision Date | 20 December 1919 |
| Parties | M. J. JONES v. MARGARET NICHOLS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.
Reversed.
Pearson & Pearson for appellants.
(1) The will conveyed to and vested in the widow the absolute title in fee to the property described in plaintiff's petition. Secs. 525, 537, R. S. 1909. The petition alleges, and the decree adjudges, such to be a fact. (2) The fact that the will was not probated immediately upon the death of the testator did not affect the title that was devised to the widow. The probating of a will relates back to the death of the testator, and vests title in the devisee from that time. The fact that a will under which a defendant claims title to land was not probated until after the bringing of a suit, is no objection to its admission in evidence. Bernard v Bateman, 76 Mo. 415; Snuffer v. Howarton, 124 Mo. 640. By probating and recording the will, be it ever so many years after the death of the testator, the title to the property in the devisee under the will is perfected; and possession during all the years from the death of the testator gave notice to the world that she claimed title thereto. The statute nowhere fixes a time within which a will must be probated. It is only directory, as to recording the will; and fixes no penalty for delay in either probating or recording a will. Wolff v. Brown, 142 Mo. 617; Nichols v. Hobbs, 197 S.W. 260; Wilcox v Moore, 199 S.W. 136. (3) Possession of property is prima-facie evidence, and actual and legal notice, of a claim of title; and any purchaser having knowledge of the possession of such property, is put upon inquiry. Schaeffer v. Detie, 191 Mo. 392; Keith v Bingham, 100 Mo. 308. The testimony was uncontradicted that the respondent had known Mrs. Nichols and her husband since a long time before his death in January, 1903; that he knew that she was in the actual possession of the property, upon which he took a deed of trust to secure his alleged loan; knew that she had been in the actual, continuous and exclusive possession of the same since January, 1903; and, made no inquiry or investigation as to her claim of title. He stated that he had lived in the town of Frankford, which is within a mile and a half or two miles of this property, for many years. (4) If she had no other claim, Margaret Nichols' title to this property had ripened and vested by the Statute of Limitations. There was no evidence that her twelve years' exclusive possession was otherwise than under a claim of ownership. The will, had it never been probated, was sufficient color of title to set the Statute of Limitations in motion. Shaeffer v. Detie, 191 Mo. 393.
Jones & Corwine and Hostetter & Haley for respondents.
(1) The continued occupancy by the widow of the "mansion house of the husband and the messuages or plantation thereto belonging," can have no such effect as is so stoutly and vehemently claimed for it by opposing counsel. Until dower be assigned she has the right to continue in the possession of such premises indefinitely. This right is expressly conferred on her by statute. Sec. 366, R. S. 1909. Nor is such possession hostile to the heirs, and, prior to the assignment of dower, no Statute of Limitations runs against the heirs, no matter how long the possession of the widow, or her grantee, may continue. Brown v. Moore, 74 Mo. 633; Melton v. Fitch, 125 Mo. 281; Westmeyer v. Gallenkamp, 154 Mo. 28; Fischer v. Siekmann, 125 Mo. 165. (2) Until a will is produced there is a presumption that the realty goes where the law casts it. Miller v. Speight, 61 Ga. 460; Adams v. Phillips, 132 Ga. 455. In order to charge purchasers and others with constructive notice of the conveyance of title by will, it is essential that a copy of the will duly probated should be recorded in the county where the land is situated. Borland on Wills, pp. 185-6; Wolf v. Brown, 142 Mo. 612; Rodney v. Landau, 104 Mo. 260; Keith v. Keith, 97 Mo. 223; Van Syckel v. Beam, 110 Mo. 589; Hartwell v. Parks, 240 Mo. 537-550; Farris v. Burchard, 242 Mo. 1; Wilson v. Wilson, 54 Mo. 215; Watson v. Alderson, 146 Mo. 333; Graves v. Ewart, 99 Mo. 13. Sec. 544, R. S. 1909, provides that a testator shall be deemed to have died intestate as to children not named in will. Section 584 confers on probate courts power to compel production of a will by summons and attachment. Title to land will not pass by will which was never probated. Snuffer v. Howerton, 124 Mo. 637; Smith v. Estes, 72 Mo. 310; Barnard v. Bateman, 76 Mo. 414. Section 566 requires wills devising lands to be recorded in Recorder's office of county where the land is situated; and when devised land is in different counties, then such copy shall be recorded in each county within six months after probate. In fact, the general legislative policy discloses the existence of the doctrine that wills are to be probated promptly; that no notice is imparted to third persons until the will has been probated or recorded; and that it is the duty of persons in possession of wills of deceased persons to promptly produce them for probate or be subject to summons and attachment. (3) Mrs. Nichols, by her conduct in wilfully concealing the will, keeping it from probate for more than twelve years, is in equity and good conscience estopped from asserting any claim under the will against persons who were lured by her acts to treat and deal with the property as if her husband had died intestate. 2 Pomeroy's Eq. Jur. (4 Ed.) sec. 802. The conduct of the widow tended to accentuate the false idea that her husband had died intestate. Clark v. Lewis, 215 Mo. 187; Boggs v. Burton, 180 S.W. 402; 2 Pomeroy's Eq. Jur. (4 Ed.) sec. 801. (4) The possession of the widow in this case without probating the will for twelve and one-half years, simply said to all the world that Josephu Nichols died intestate and his widow is occupying his mansion house and enjoying the messuages connected therewith until dower be assigned, and the heirs are indulgent enough not to cause her dower to be assigned; therefore she is lawfully entitled to hold possession of all the premises, including the excess above the $ 1,500 homestead, and that the three daughters each own an undivided one-third interest in the 120 acres, subject to their mother's quarantine, homestead and unassigned dower rights therein.
SMALL, C. Brown and Ragland, CC., concur. Bond, J., concurs in the result.
This suit in equity was instituted in the Circuit Court of Pike County to vest title in an undivided two-thirds interest in 120 acres of land in said county in the plaintiff, subject to the dower rights of Margaret Nichols, as widow of Josephus Nichols, deceased, on the theory that, as to the plaintiff, said Josephus Nichols died intestate. Margaret Nichols and Dolly Seely are defendants.
Plaintiff alleges that said Josephus Nichols died at his residence on said land January 5, 1903. That he left surviving him his widow, the defendant Margaret Nichols, and his three daughters: Susan Foutes, wife of Andrew Foutes, since deceased; Nancy Foutes, wife of Edward Foutes; and Dolly Seely, wife of William H. Seely. That said Josephus Nichols died testate, and by his will devised the whole of the land to his widow. That as to all the world, except Mrs. Nichols and her daughters and their husbands, it appeared that said Josephus Nichols died intestate, and plaintiff had no knowledge to the contrary until the will was probated, which was July 26, 1915. That defendants and A. N. Foutes, then the husband of Susan Foutes, "combined, confederated and conspired" together to keep said will from being probated and its existence a secret, in order to deal with the land as if it belonged to the widow and her daughters under the laws of descent, and to defraud the plaintiff by inducing him to loan $ 875 on the two-thirds interests of Susan Foutes and Nancy Foutes. That in pursuance of such conspiracy, Susan Foutes and her husband, A. N. Foutes, conveyed her one-third interest to Edward Foutes, and Edward Foutes and his wife on March 28, 1911, borrowed $ 875 from the plaintiff, secured by a deed of trust on two-thirds interest in said land. The money not being paid when due the property was sold under the deed of trust, November 16, 1914, and bought in by William C. Smith for the plaintiff, who afterwards conveyed to the plaintiff. That defendant Margaret Nichols by keeping the existence of the will a secret from the plaintiff, aided Nancy Foutes and Edward Foutes "in the perpetration of their skillful scheme to cheat and defraud the plaintiff as aforesaid." And that the will was probated March 26, 1915, and the property afterwards conveyed by Mrs. Nichols to her daughter Dolly Seely "in furtherance of the scheme and conspiracy hereinbefore mentioned."
The answer of the defendants admitted the death of Josephus Nichols, the making and probating of the will, and alleged that ever since his death defendant Margaret Nichols had been in the open and notorious possession, claiming to own said property under said will, and also by adverse possession of ten years. The answer also contained a general denial.
Plaintiff took the depositions of the defendants and read them at the trial as admissions.
In her deposition, defendant Margaret Nichols, testified: That she was 79 years old. That her husband died March 5, 1903. That they lived on this 120 acres until the time of his death. That he left three children at his death, Nancy, Susie and Dolly, all of them married, as stated in the petition. They lived with their husbands a mile or two away from the home place, except Mrs. Seely, who lived near Madisonville, about ten miles away. Mr. Brown wrote...
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