Kennard v. Wiggins

• Decision Date: 25 July 1941
• Docket Number: No. 37396.,37396.
• Citation: 160 S.W.2d 706
• Parties: ELIZABETH LIGGETT KENNARD v. ELLA L. WIGGINS, Appellant.
• Court: Missouri Supreme Court

160 S.W.2d 706

ELIZABETH LIGGETT KENNARD v. ELLA L. WIGGINS, Appellant.

No. 37396.

Supreme Court of Missouri.

Division One, July 25, 1941.

As Modified on Denial of Rehearing, December 16, 1941 and February 26, 1942.

Motion to Transfer to Banc Overruled, April 16, 1942.

Appeal from Circuit Court of City of St. Louis. — Hon. Harry F Russell, Judge.

AFFIRMED AND REMANDED.

Daniel N. Kirby and Nagel, Kirby, Orrick & Shepley for appellant.

(1) The averments of Count I of the petition in the instant case fail to state facts sufficient to constitute a cause of action in equity in the nature of a direct attack by plaintiff and against defendant to hold void, for alleged fraud, accident or mistake, the herein disputed paragraph in the will construction decree entered by the circuit court, City of St. Louis, on June 22, 1923. (2) The only kind of fraud which the courts recognize as adequate in a direct attack to enjoin a judgment or decree is fraud in procuring it to be rendered, also called "extrinsic" fraud. Hockenberry v. Cooper County State Bank, 88 S.W. (2d) 1031, 338 Mo. 31; Johnson Timber & Realty Co. v. Belt, 329 Mo. 515. (3) What might have been shown under the pleadings is deemed settled. Hamilton v. McLean, 169 Mo. 51; First Natl. Bank & Trust Co. v. Bowman, 322 Mo. 654, 15 S.W. (2d) 842. (4) It must be proved that the alleged fraud really prevented the plaintiff from making a full defense. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 67 L. Ed. 719. (5) The supporting proof must be clear, strong and convincing. Lieber v. Lieber, 143 S.W. 458, 239 Mo. 1; Johnson v. Realty Co., 167 Mo. 325. (6) The convincing proof must cover all factors. 34 C.J., p. 495, sec. 782. (7) General averments of fraud in procuring a judgment are insufficient. Such a charge of fraud in a petition must allege the specific acts of defendant that are claimed to have caused the circuit court to include the disputed paragraph in the will construction decree. Therefore, the charge in the instant petition, being general, is legally insufficient. Dickey v. Volker, 11 S.W. (2d) 278, certiorari denied 279 U.S. 839, 73 L. Ed. 986; Thompson v. Conran-Gideon Road Dist., 323 Mo. 953, 19 S.W. (2d) 1049; Klaber, Admr., v. Unity School, 330 Mo. 854. The charge of mistake or accident was not pleaded adequately. 31 Am. Jur., sec. 640, p. 221; Cantwell v. Johnson, 236 Mo. 575; Lieber v. Lieber, 239 Mo. 1; Fears v. Riley, 148 Mo. 49; 34 C.J., sec. 732, i, pp. 465-466; Overton v. Overton, 327 Mo. 530; Miller v. Bernecker, 46 Mo. 194. (8) The averments of fraud on the Supreme Court are insufficient in law. First Natl. Bank & Trust Co. v. Bowman, 322 Mo. 654, 15 S.W. (2d) 842. (9) The decree in the will construction case was res adjudicata. 34 C.J., p. 818, sec. 1236; Cordia v. Matthes, 344 Mo. 1059; Powell v. City of Jackson, 335 Mo. 562; Consolidated School District v. Day, 328 Mo. 1105; Leslie v. Carter, 268 Mo. 420; St. Louis v. United Rys. Co., 263 Mo. 387; Summet v. City Realty Co., 208 Mo. 501; Spratt v. Early, 199 Mo. 491; Donnell v. Wright, 147 Mo. 639; Miller v. Bernecker, 46 Mo. 194; Dobbs v. St. Joseph Fire & M. Ins. Co., 72 Mo. 189. (10) It is established law, obtaining in Missouri and generally, that a minor defendant who was represented by a properly appointed guardian ad litem is bound by the decree just as though she had been an adult. This is especially so if the minor defendant seeks affirmative relief and thereby takes the same position as though a plaintiff. 31 C.J., sec. 355, p. 1166; Fiene v. Kirchoff, 176 Mo. 516, 75 S.W. 608; Shields v. Power, 29 Mo. 315; Smith v. Perkins, 124 Mo. 50; Spotts v. Spotts, 331 Mo. 917, 55 S.W. (2d) 977. (11) The general rule that ordinarily courts of equity will not construe or adjudicate future contingent interests is not disputed, but the established exception includes the instant case. Cross v. De Valle, 1 Wall. 1, 68 U.S. 1, 17 L. Ed. 515; McArthur v. Scott, 113 U.S. 340, 28 L. Ed. 1015; Diggs v. Fidelity & Deposit Co., 112 Md. 50; Gunter v. Townsend, 202 Ala. 160; Bowers v. Smith, 10 Paige, 193; 69 C.J., sec. 1988 (2) p. 870; Watling v. Watling, 15 Fed. (2d) 719; Walker v. First Trust & Savs. Bank, 12 Fed. (2d) 896; May v. May, 167 U.S. 310. The will construction decree did not construe or affect the interest of Mrs. Kennard beyond the point necessary to instruct the trustees and the daughters concerning the nature and extent of the life estates of the daughters by holding that they would not end until the death of the last daughter to survive. (12) The circuit court erred in its decree in the instant case in holding that upon the death of Dolly L. Kilpatrick, which occurred during the life of Ella L. Wiggins, the herein disputed interest in the trust estate vested in — "passed absolutely" to — Mrs. Kennard. The above doctrine "of necessity" as justifying the construction and adjudication of interests contingent on future events has been recognized and applied by this court when the purpose of the suit is "to determine the existing titles." Russ v. Hope, 265 Mo. 637; Audsley v. Hale, 303 Mo. 451; White v. Kentling, 345 Mo. 526. The decision of U.S. District Judge C.B. Faris so held. Perry v. Wiggins, 57 Fed. (2d) 622, certiorari denied 297 U.S. 609. (13) The disputed paragraph of the will construction decree correctly construed the disputed paragraph of the Liggett will, by holding that the trust portion of a daughter who might die without issue, but leaving both the other daughters surviving, would pass to said surviving daughters in successive life estates, and that therefore the contingent remainder in said portion would not vest until the death of the last daughter to survive. The construction expressed in the disputed paragraph of the will construction decree was in accord with the applicable rules of construction established by the Supreme Court of Missouri. Wiggins v. Perry, 271 S.W. 815. (14) The will construction decree construed the will correctly, by holding that the daughters' life estates in the Fowler "portion" were successive, thereby postponing the vesting of the contingent remainder in said portion until Mrs. Wiggins shall have died, when it will vest as provided in said decree. (15) Neither of the Missouri Statutes relied upon by Mrs. Kennard, and apparently by the circuit court, in the trial below of the instant suit, is persuasive or conclusive to show that the disputed paragraph of the will construction decree was erroneous, or that the contingent remainder in the Fowler portion vested upon the death of Dolly L. Kilpatrick. R.S. 1929, secs. 562, 3110; Emmerson v. Hughes, 110 Mo. 627; 24 R.C.L., sec. 19, p. 907; 24 R.C.L., p. 898; Sands v. Old Colony Trust Co., 195 Mass. 575, 81 N.E. 300; 24 R.C.L., p. 907, sec. 19; De La Vergne Refrigerating Machine Co. v. Featherstone, 147 U.S. 209, 37 L. Ed. 138; 3 Thompson on Real Property, sec. 2179, p. 238; State ex rel. v. Welch, 175 Mo. App. 303; 3 American Law Institute Restatement of Property, sec. 306, p. 1695, comment i, p. 1698. (16) The decree is not responsive to the issues framed upon each of said counts. There was no definite and separate judgment as to each count. R.S. 1939, sec. 917; St. Louis Gas Light Co. v. St. Louis, 86 Mo. 495. There was no ruling upon the issues of res judicata. Counts I and II are collateral attacks on the will construction decree, and must fail for that additional reason.

Paul Bakewell, Jr., for respondent.

(1) "Heirs of the body" of an individual are the lineal descendants of such individual who become her heirs at the time of her death. Brock v. Dorman, 339 Mo. 611, 98 S.W. (2d) 672; Campbell v. Spotts, 331 Mo. 974, 55 S.W. (2d) 986; Wiggins v. Perry, 271 S.W. l.c. 826; Nichols v. Robinson, 211 S.W. 14; Emmerson v. Hughes, 110 Mo. l.c. 631. (2) If technical words are used in a will, the testator is presumed to have used them in their technical sense. Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Wiggins v. Perry, 271 S.W. l.c. 827. (3) Where property passes to one for life with remainder to the heirs of her body, the remaindermen take the absolute title at the death of the life tenant. Secs. 563, 3500, R.S. 1939; Brock v. Dorman, 339 Mo. 611, 98 S.W. (2d) 672; Emmerson v. Hughes, 110 Mo. 627; Nichols v. Robinson, 211 S.W. 14; Cox v. Jones, 229 Mo. 53; Miller v. Ensminger, 182 Mo. 195; Campbell v. Spotts, 331 Mo. 974, 55 S.W. (2d) 990; Wiggins v. Perry, 271 S.W. l.c. 821; State ex rel. v. Welch, 175 Mo. App. 303. (4) The same rules for the vesting of interests apply to real estate and personal property, especially where both are included in the will. Gardner v. VanLandingham, 334 Mo. 1054, 69 S.W. (2d) 947; Deacon v. Trust Co., 271 Mo. 669, 197 S.W. 261; Collier's Will Case, 40 Mo. 287; State ex rel. v. Welch, 175 Mo. App. 303; 2 Kent's Commentaries 354; 2 Jarman on Wills (7 Ed.), 610; 1 Roper on Legacies, p. 88; Schouler on Personal Property (5 Ed.), p. 216. (5) The three daughters were tenants in common and any right of survivorship contradicts the will and contradicts the policy of the law. Sec. 3504, R.S. 1939; Rodney v. Landau, 104 Mo. 251; Lemmons v. Reynolds, 170 Mo. 227; Cohen v. Herbert, 205 Mo. 537; Philbert v. Campbell, 317 Mo. 556, 296 S.W. 1001; State ex rel. Ashauer v. Hostetter, 127 S.W. (2d) 697; Cruit v. Owen, 203 U.S. 368. (6) In a direct attack upon a decree, or what purports to be a provision of a decree, the defendant may not plead as res adjudicata the very decree or provision attacked. Easton v. Collier, 3 Mo. 379; 34 C.J., secs. 753, 1158; States v. Cromwell, 107 N.Y. 91, 114 N.E. 448. (7) The will construction suit is not res adjudicata, as to this cause of action by respondent: (a) because there is no identity of cause of action and no identity of the thing sued for; M.-K.-T. Ry. Co. v. Amer. Surety Co., 291 Mo. 92, 236 S.W. 657; (b) because in the will construction suit there was no decision as to the devolution of the share of a...