Lilly v. Menke

Decision Date16 February 1898
PartiesLILLY et al. v. MENKE et al.
CourtMissouri Supreme Court

Action by John J. Lilly and others against Maria T. Menke and others for partition. Judgment for defendants, and plaintiffs appeal. Affirmed.

Alex. Graves, C. S. McLaughlin, and Scott J. Miller, for appellants. J. M. Davis, Chas. A. Loomis, and W. W. Davis, for respondents.

GANTT, C. J.

This is the second appeal in this cause. The first is reported in Lilly v. Menke, 126 Mo. 190, 28 S. W. 643, 994. The subject-matter has been litigated since 1880. Its first appearance in this court was in the suit of Catholic Church v. Tobbein, 82 Mo. 418. It was held that the plaintiff therein had no property rights in the estate devised by said Tobbein, and that the judgment should be reversed without remanding. Thereafter the plaintiffs, as trustees of the unincorporated church of the Immaculate Conception, for themselves and the other members of said church, renewed said suit, and obtained a judgment establishing said will, and that judgment was affirmed in this court in Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618. The will established, plaintiffs commenced this suit in July, 1890, in the circuit court of Caldwell county, for the partition of the estate of Ilett Tobbein in accordance with the provisions of his said will, and averred that by said will he devised and bequeathed one-half of his estate to said unincorporated Catholic Church at Lexington, and that said church was entitled to one-half of said estate. The defendant Maria T. Menke and her husband and their co-defendants entered their appearance and filed an answer, and denied that the church was entitled to one-half, but alleged that Mrs. Tobbein, to whom the testator had given only a life estate in all of his property, had renounced said will, and elected to be endowed absolutely of one-half of said estate, and thereby became seised of said half, and had afterwards executed her last will devising her estate to Elizabeth Smith, Agnes and William A. Polking, and Maria T. Menke, and appointed Charles T. Menke her executor, and afterwards, on July 14, 1887, had died, and her said will had been duly probated, and, by reason of the renunciation and election of Mrs. Tobbein, only one-half of the estate of Ilett was subject to the provisions of his will, and accordingly the church was entitled to one-fourth only, and his other devisees one-fourth, and Mrs. Tobbein's devisees the one-half which she took by her election. A change of venue was then granted to Livingston county, and in the circuit court of that county plaintiffs filed a second amended petition, setting out the will in hæc verba, its probate, and then made the following averment: "Plaintiffs state that on the ____ day of ____, 1879, and within one year after the last will of Ilett Tobbein was offered for probate, the said Catherine Tobbein, deceased, filed in the office of the probate court of said Caldwell county a declaration of her election to renounce the provisions of said last will and testament of said Ilett Tobbein, wherein she elected to take one-half of all the real and personal estate belonging to said Ilett Tobbein absolutely, which renunciation and declaration was duly filed and legally executed by the said Catherine Tobbein, and she, the said Catherine Tobbein, became the owner in fee of one-half of the real estate described aforesaid;" and then proceeded to allege the making of a will by said Catherine, and set it out also a length, and further averred that Maria T. Menke, by virtue of the renunciation and election of Catherine Tobbein and by her last will and testament, had become seised of and entitled to one-half said estate charged with the legacies in said will provided. A decree of partition was rendered, which adjudged Mrs. Menke was entitled to one-half in fee, and ordered it set apart to her, but charged her with $2,580.89 for rents received and timber sold, and made it a lien on her half so decreed. From that decree an appeal was taken to this court, and the judgment was reversed and the cause remanded. Lilly v. Menke, 126 Mo. 190, 28 S. W. 643, 994. After the cause had returned to the circuit court, plaintiffs filed a third amended petition, omitting all allegations of waste, all reference to the final settlement of the administrator pendente lite, and all mention of the renunciation and election of Mrs. Tobbein. Thereupon the defendants repeated in their answer the allegations as to the renunciation and election of Mrs. Tobbein omitted by plaintiffs, and averred her death, the probate of her will, and their right to one-half of the estate by virtue of said election and renunciation by Mrs. Tobbein and by her will, and also their right to one-fourth under the will of Ilett Tobbein. Thereupon, for the first time in the history of the litigation, plaintiffs by their reply denied that Mrs. Tobbein had made such election and renunciation, and denied that she became seised in fee of one-half of said estate, as plaintiffs had previously alleged. The circuit court reheard the cause, and granted a decree of partition in accordance with the opinion of this court in banc, and plaintiffs appeal.

1. On the former appeal this court treated the averment of the plaintiffs in this case as conclusive that the widow of Ilett Tobbein had duly and legally renounced the provisions of his will made in her behalf, and had become seised in her lifetime of an undivided one-half of the lands of said estate in fee simple. Upon that averment, solemnly made, the circuit court had predicated its judgment, and decreed one-half of the estate to the devisees of Catherine Tobbein. Lilly v. Menke, 126 Mo. 190, 28 S. W. 643, 994. Not only that, but we find that, in all the previous litigation in the probate and circuit courts, it was admitted that her election and renunciation were sufficient, and vested one-half of said estate in her. Catholic Church v. Tobbein, 82 Mo. 418; Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618. Plaintiffs now, after all these years, seek to deny those allegations which they had so often and so explicitly made throughout this long drawn out litigation, upon which all the courts and all the parties have acted and the courts based their judgments. Preliminary, then, to any discussion of the evidence tending to prove or disprove the sufficiency of such election and renunciation, it is a matter of grave interest to determine how far the privilege of amendment is to be extended. The defendants earnestly and rightly insist that plaintiffs having elected during all these years to assert that said election was in all respects valid and sufficient, with full knowledge of all the facts, cannot now be allowed to amend and deny, not only a solemn admission of record, but their own affirmative statement of its sufficiency, without the slightest claim of mistake or inadvertence as to the facts. By its finding and judgment, the...

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52 cases
  • Shannon v. Eno
    • United States
    • Supreme Court of Connecticut
    • 4 Junio 1935
    ......Farmers' Loan & Trust Co. v. McCarty, 100 Conn. 367, 371, 124 A. 40; Meek v. Trotter, 133 Tenn. 145, 149, 180 S. W. 176; Lilly v. Menke, 143 Mo. 137, 149, 44 S. W. 730; Trustees Church Home v. Morris, 99 Ky. 317, 323, 36 S. W. 2; In re Portuondo's Estate, 185 Pa. 472, 473, 39 ......
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    ..."runs with the hare and holds with the hounds." Our own court, in no uncertain terms, speaking through Gantt, J., in Lilly v. Menke, 143 Mo. 137, 145, 44 S. W. 730, 731, has "It is intolerable to allow a party to assert a fact and maintain it at every step in a cause until the court draws s......
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    • 24 Junio 1914
    ...without merit, to allow averments to be made by way of amendment, constituting a new and substantive ground of relief." In Lilly v. Menke, 143 Mo. 137, 44 S.W. 730, the held that on a second trial, a party will not be permitted to amend his pleading, made with knowledge of all the facts, so......
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    ......Provisions in her behalf must be disregarded, but the intention of the testator as to others must be carried out as nearly as possible. [Lilly v. Menke, 143 Mo. 137, 149, 44 S.W. 730.] It was the intention of the testator that his daughter receive one-half of the net income of the entire ......
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