Liggett v. Liggett

• Decision Date: 26 August 1937
• Parties: Baird Liggett v. Mary H. Liggett et al., Appellants
• Court: Missouri Supreme Court

108 S.W.2d 129

341 Mo. 213

Baird Liggett v. Mary H. Liggett et al., Appellants

Supreme Court of Missouri

August 26, 1937

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

George E. Kimball, Prince & Beery, S. M. Mandell and Ruby D. Garrett for appellant.

(1) The trial court erred in giving Instruction 1 of the plaintiff said instruction reading as follows: "The court instructs the jury that under the law and the evidence your verdict must be for the plaintiff, and your verdict shall be in the following form: 'We, the jury, find the issues for plaintiff and find that plaintiff is the owner in fee simple of the northwest quarter of the northwest quarter of Section 14, Township 46, Range 31, and the northeast quarter of the northeast quarter of Section 15, Township 48, Range 31 containing eighty acres, and including the buildings and improvements thereon, all in Jackson County, Missouri.'" Claflin v. Rosenberg, 42 Mo. 439; Dalton v. Poplar Bluff, 173 Mo. 39; Cleveland & Aurora Mineral Land Co. v. Ross, 135 Mo. 101; Wolff v. Campbell, 110 Mo. 114; Bryan v. Weir, 4 Mo. 106; Vaulx v. Campbell, 8 Mo. 224; Gregory v. Chambers, 78 Mo. 294; Shelton et al. v. McHaney, 93 S.W.2d 684; Blumer v. Gillespie, 93 S.W.2d 938; Burrier v. Jones, 92 S.W.2d 885; Carter v. Boone County Trust Co., 92 S.W.2d 651; Colvan v. Hutchinson, 92 S.W.2d 667; Heard v. O'Dell, 72 S.W.2d 491; Fleischaker v. Fleischaker, 70 S.W.2d 104; Cravens v. Cravens, 61 S.W.2d 739; Niedringhaus v. Niedringhaus Inv. Co., 46 S.W.2d 828; Arrington v. McCluer, 34 S.W.2d 67; Lehmann v. Griffin, 31 S.W.2d 271; Smithsonian Institution v. Meech, 169 U.S. 398; Moran v. Moran, 144 Iowa 451, 123 N.W. 202; Schiffer v. Brenton, 226 N.W. 253; Ross v. Ross, 31 P.2d 718; Chambers v. Chambers, 19 S.W.2d 30; Crowson v. Crowson, 18 S.W.2d 634; Larsen v. Hansen, 12 S.W.2d 505; Snow v. Ferril, 8 S.W.2d 1008; Shaw v. Aiken's Estate, 5 S.W.2d 662; Sorenson v. Booram, 297 S.W. 70; Austin v. Collins, 297 S.W. 36; Arrowood v. Delaney's Estate, 295 S.W. 522; Murphy v. Enright, 264 S.W. 811, Hendrix v. Marks, 256 S.W. 539; Mockbee v. Grooms, 254 S.W. 177; McCoy v. Bradbury, 235 S.W. 1047; Wooley v. Hays, 226 S.W. 843; Cox v. Jones, 129 S.W. 495; Gannon v. Pauk, 98 S.W. 474; Grace v. Perry, 95 S.W. 875, 197 Mo. 832. (2) The trial court erred in sustaining the objection to the introduction of defendant's Exhibit 6, being written notice to Baird Liggett from the executor and trustee of his intention to declare a forfeiture. 40 Cyc., p. 1727-B.

William B. Dickinson and Martin B. Dickinson for respondent.

(1) The court did not err in giving a directed verdict, because there was no evidence of forfeiture and all the evidence showed title in plaintiff. Wright v. Cummings, 108 Kan. 667, 196 P. 247, 14 A. L. R. 604; In re Cronin's Will, 143 Misc. 559, 257 N.Y.S. 496, affmd., 261 N.Y.S. 936; In re Smyth's Estate, 284 N.Y.S. 470, reversing In re Smyth's Estate, 155 Misc. 775, 281 N.Y.S. 260; Burger v. Burger, 105 N.J.Eq. 403, 148 A. 167; Ayers' Admr. v. Ayers, 212 Ky. 400, 279 S.W. 647; In re McCahan's Estate, 221 Pa. 188, 70 A. 711; Drennen v. Heard, 198 F. 414; Harber v. Harber, 158 Ga. 274, 123 S.E. 114, 33 A. L. R. 598; Lobb v. Brown, 208 Cal. 476, 281 P. 1010; Dutterer v. Logan, 103 W.Va. 216, 137 S.E. 1, 52 A. L. R. 83; Wait v. Westfall, 161 Ind. 648, 68 N.E. 272. (2) The court did not err in excluding defendants' Exhibit 6, which is a letter from defendant Kimball to plaintiff, stating that unless plaintiff dismissed this suit by a certain time said defendant would consider that plaintiff had forfeited the devise in his favor.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This action was tried below, on amended pleadings as an action to determine title to eighty acres of land in Jackson County, specifically described in plaintiff's second amended petition upon which the case was tried. It was tried to a jury and at the close of the evidence the court directed a verdict for the plaintiff, which was accordingly returned. Judgment was entered accordingly, from which defendants have appealed. Plaintiff is a son and five of the defendants are children of Mary H. Liggett (now deceased), they being all of her children and heirs. The other defendant and appellant is George E. Kimball, executor and trustee named in the will of Mary H. Liggett. The eighty acres of land in controversy were devised by Mary H. Liggett, by her will, duly admitted to probate, to plaintiff, Baird Liggett. Defendants claim that said Baird Liggett forfeited said devise by contesting his mother's will, in violation of a provision therein contained. That contention furnishes the subject matter of this appeal. If plaintiff did not so forfeit, his title to the land in question is clear and indisputable.

Mary H. Liggett was the daughter and only child and heir of one Jeremiah Baird, who died in 1905 owning 613.25 acres of land in Jackson County, Missouri, of which the eighty acres in question is a part. Said Mary inherited said land from her father and appeared of record to own it when she made her will and at her death. At Jeremiah Baird's death all of said land was subject to a $ 9000 deed of trust, which encumbrance was subsequently paid off.

Plaintiff's original petition herein was filed March 31, 1932, in the lifetime of his mother, Mary H. Liggett, naming as defendants said Mary and plaintiff's five brothers and sisters, who, with himself, constituted all of the children and prospective heirs of said Mary. In it plaintiff alleged that said $ 9000 encumbrance had been paid by him and the other named defendants and that he had paid more than one-sixth thereof, and was entitled to an undivided one-sixth of all said real estate, subject only to his said mother's interest, which in said petition he asserted was in fact only a life estate. Said petition prayed judgment ascertaining and defining the title and interests of the parties and that he be decreed the owner of an undivided one-sixth interest in all of said 613.25 acres. A notice of lis pendens was also filed.

Mary H. Liggett, by her attorney, George E. Kimball, filed a demurrer to that petition, which was overruled, and then filed a motion to make more definite and certain, which was pending and undisposed of at her death.

With matters in that shape Mary H. Liggett, on July 16, 1932, she being then well advanced in years, executed her will, here involved. It was drafted by her attorney, George E. Kimball, an able and experienced lawyer, whom she therein named as executor and as trustee of certain trusts therein created. Mrs. Liggett died twenty-three days later. The will was duly probated. By said will the testatrix devised to plaintiff the eighty acres here in question, to her other children certain specifically described real estate, including a life estate to her son Hal H. Liggett in described lands with certain attached conditions not necessary here to relate, to several church organizations certain specific bequests, and the residue of her estate to George E. Kimball in trust for the Salvation Army. The will contained this forfeiture clause:

"Fourth: Should any one or more of my children legally contest, this, my Last Will and Testament, and thereby attempt to break such Will, or in any manner alter its provisions, or change the portion given to such child or children, then, in such an event, the portion of my said lands or other property given, bequeathed and devised in this Will to such child or children, shall be revoked and shall not be so given to such child or children, nor shall any other portion of my property be given to said child or children, but the lands hereby devised to such child or children so contesting this Will, shall in such an event be given to and is hereby devised to the Salvation Army, upon the same conditions and restrictions as set forth in Letter (L), and the said child or children so contesting this Will shall by such act be disinherited."

The will further provided that tenants in possession of any of testatrix' lands should retain possession until the end of the rental year during which she might die. As to the eighty acres devised to plaintiff, that period ended February 28th or March 1st, 1933, which was the earliest time plaintiff could obtain possession of the eighty acres devised to him if he claimed under the will.

After the death of Mary H. Liggett and on about November 22, 1932, plaintiff filed in the circuit court suggestion of her death and that the cause should be revived as to her in the name of her executor and trustee, Kimball. Appellants' abstract of record does not clearly show whether or not an order of revivor was entered of record but this, perhaps, is not here important. Kimball, as executor and trustee, appeared and the cause proceeded with him, in said capacities, as a party defendant.

Thereafter about May 15, 1933, plaintiff filed his first amended petition, in which he asserted that his mother, being desirous of having the assistance of her children in paying off said $ 9000 encumbrance and intending that all of said land should go at her death to her six children agreed with said children, and especially with plaintiff, that if said children would aid her in paying off said encumbrance she would retain title to all of said lands so that they would descend to her said children; that he, plaintiff, agreed to said proposition and fully complied therewith on his part; that his brother, Hal H. Liggett, one of the defendants, importuned and attempted to persuade their mother to sell said lands, which would have rendered her unable to carry out her agreement with plaintiff; that she was then physically weak and unable to resist the importunity of her son Hal, and was...