Little v. Mettee

• Decision Date: 23 April 1936
• Docket Number: 33035
• Parties: Joseph M. Little, Appellant, v. Robert Parke Mettee, Birdie May Mettee and Harriett W. Aydelotte
• Court: Missouri Supreme Court

93 S.W.2d 1000

338 Mo. 1223

Joseph M. Little, Appellant, v. Robert Parke Mettee, Birdie May Mettee and Harriett W. Aydelotte

No. 33035

Supreme Court of Missouri

April 23, 1936

Rehearing Denied April 23, 1936.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed.

James P. Aylward, Perry W. Seaton and Arthur N. Adams for appellant.

(1) The will as probated devised the real estate in question to the trustees named for the benefit of the devisees and these included the appellant, Joseph M. Little. (a) The probate court had no jurisdiction to exclude the phrase in question from the will. Cox v. Cox, 101 Mo. 168, 13 S.W 1055; McCarthy v. Fidelity Nat. Bank & Trust Co., 325 Mo. 727, 30 S.W.2d 19; Hembree v. Bolton, 132 S.C. 136, 128 S.E. 841. (b) Unexplained alterations apparent on the face of a will are presumed to have been made after execution of the will and the burden of proving that they were made before execution is upon those claiming the benefit thereof. Cooper v. Bockett, 13 Eng. Reprints, 365; Greville v. Tylee, 13 Eng. Reprints, 904; Williams v. Ashton, 70 Eng. Reprints, 685; Simmons v. Rudall, 61 Eng. Reprints, 45; Guerin v. Hunt, 118 S.C. 32, 110 S.E. 71; In re Atkinson's Estate, 93 N.J.Eq. 139, 115 A. 370; Alexander, Commentaries on Wills, sec. 1312, p. 2019, sec. 550, p. 747, sec. 558, p. 759, sec. 559, p. 762. (c) After its execution a testator may not alter his will so as to change the disposition of his estate without a republication thereof and the will must be probated as originally written. Sec. 520, R. S. 1929; Schouler on Wills, Executors & Administrators (6 Ed.), sec. 608, p. 696; In re Atkinson's Estate, 93 N.J.Eq. 139, 115 A. 370; Appeal of Miles, 68 Conn. 237, 36 A. 39; Gardiner v. Gardiner, 19 A. 651, 65 N.H. 230; Vernon v. Vernon, 67 Mo.App. 534. (2) Appellant's cause of action is not barred by the Statute of Limitations. Case v. Goodman, 250 Mo. 112, 156 S.W. 698; Case v. Sipes, 280 Mo. 110, 217 S.W. 306; Prewitt v. Prewitt, 188 Mo. 675, 87 S.W. 1000; Clay v. Walker, 6 S.W.2d 961; Stoff v. Schuetze, 293 Mo. 635, 240 S.W. 139; Bouvier's Law Dictionary, p. 1145. (3) The fact that the original will was on file in the probate court does not charge this appellant with constructive knowledge of its contents. Secs. 3039, 3040, 3053, R. S. 1929; Rodney v. Landau, 104 Mo. 251.

A. N. Gossett and Harvey E. Hartz for respondents.

(1) A paper writing has no force and effect as a last will until it has been admitted to probate and afterwards spread on the records of the probate court. Such court is a court of record and speaks only through its record, and its judgment is final unless set aside as provided by the statute. Farris v. Burchard, 242 Mo. 1, 145 S.W. 825. (2) The right to devise property is governed entirely by statute. All wills devising real estate must be executed and probated as provided by our statutes. Sections 8869, 8870, 8880, 8896 and 8898, Revised Statutes 1889 (as amended, now Secs. 518, 519, 528, 545 and 547, R. S. 1929), were the statutes in force when this will was presented for probate. The probate court in admitting the will including the codicil of Harriett W. Wilson to probate by its judgment found: (a) That the testatrix was over eighteen years of age and of sound mind. (b) That she signed in the presence of two competent witnesses who attested by subscribing their names to said will and codicil in the presence of testatrix, and (c) that the paper writings produced, just as they appeared, and as presented, were the will and codicil actually executed by the testatrix. Rood on Wills, sec. 167; 1 Jarman on Wills, p. 27; Gaines v. New Orleans, 6 Wall. 703. The law presumes that the clerk did his duty in recording the will and codicil just as the probate court adjudged them to be and after thirty-eight years, the law will conclusively presume such record and judgment to be absolutely correct. Sec. 545, R. S. 1929; Rothwell v. Jamison, 147 Mo. 601; Farris v. Burchard, 242 Mo. 10; Nichols v. Hobbs, 197 S.W. 258. (3) Plaintiff had five years after he became of age in April, 1907, to bring an action to contest the judgment of the probate court admitting this will to probate, and not having done so, the judgment of the probate court probating this will is conclusive and equity will not thereafter entertain any action to establish a resulting trust even though the will might have been obtained or probated by fraud. Secs. 4622, 4624, R. S. 1899; Stowe v. Stowe, 140 Mo. 594. (4) There is no reason why a different rule should apply to wills as to changes, whether deletions or insertions, than applies to written instruments generally. Changes of the physical appearance and character as occur in the will and codicil in question are presumed to have been made before execution. Stillwell v. Patton, 108 Mo. 360; Holton v. Kemp, 81 Mo. 665; Graham v. O'Fallon, 4 Mo. 601. But whatever the presumption may be, as to alterations appearing upon the face of a will offered for probate, that is, whether same were made either before or after the execution of a will, is not material after final judgment. This is not a proceeding to probate a will, or to contest the probate of a will. After final judgment admitting a will to probate, the only presumption that exists is that the will as probated and recorded in the probate court is valid. 2 Schouler on Wills (6 Ed.), sec. 782; Cohen v. Herbert, 205 Mo. 537; Stowe v. Stowe, 140 Mo. 602; Farris v. Burchard, 242 Mo. 10; Rothwell v. Jamison, 147 Mo. 601. (5) The judgment of the probate court admitting the will of Harriett W. Wilson to probate having become final, the judgment record of such will and probate in the probate court cannot be attacked collaterally. Cohen v. Herbert, 205 Mo. 537; Stevens v. Oliver, 200 Mo. 492; Viehmann v. Viehmann, 298 Mo. 356, 250 S.W. 565; Hidden v. Edwards, 313 Mo. 642, 285 S.W. 462. (6) An action to establish a resulting trust in real estate is an action to recover an interest in lands and is barred unless such action is brought within ten years after the right of action accrues. Sec. 850, R. S. 1929; Maynard v. Doe Run Lead Co., 305 Mo. 356, 265 S.W. 94; Zeitinger v. Annuity Realty Co., 325 Mo. 194, 28 S.W.2d 1030; Hudson v. Cahoon, 193 Mo. 547; Reed v. Painter, 145 Mo. 341; Burdette v. May, 100 Mo. 13. (7) Plaintiff was charged with notice of the contents of the record of the Harriett W. Wilson will after the same appeared of record in Vol. 5, pages 79 to 83, inclusive, of the Will Records of the Jackson County Probate Court from the date of such record on May 14, 1897. Nichols v. Hobbs, 197 S.W. 260. His action asserting rights not granted him under this judgment record of the will and probate is, therefore, barred since such action was not brought within five years after he became of age. Sec. 4624, R. S. 1899, as amended, now Sec. 539, R. S. 1929.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is a suit in equity to establish and enforce what plaintiff denominates as a resulting trust in a one-fourth interest in certain real estate, situate in Jackson County, Missouri, and particularly described in the bill. The suit was filed and heard in the Circuit Court of Jackson County and the finding and decree of the chancellor being for defendants the plaintiff has appealed. We can better approach and develop the determinative issues by first stating the facts in evidence.

Joseph M. Little, the plaintiff, and Robert Parke Mettee, Birdie May Mettee and Harriett W. Aydelotte, formerly Harriett W Mettee, defendants, are grandchildren of Harriett W. Wilson, deceased, and the children of Mary Wilson Little, also deceased, who was a daughter of Harriett W. Wilson. The mother of plaintiff and defendants was twice married. Her first marriage was with a man named Mettee and the three defendants are the children born of that marriage; the second marriage was with a man named Little and the plaintiff, appellant here, is the only child born of that marriage. On December 9, 1892, Harriett W. Wilson, the grandmother of plaintiff and defendants, executed a will. At that time her husband, Robert T. Wilson, and two daughters, Kate M. Drury and Mary W. Little, formerly Mary W. Mettee, the mother of plaintiff and defendants, were living. The three children of Mrs. Drury and plaintiff and defendants, the children of Mrs. Little formerly Mettee, were all of the grandchildren of Harriett W. Wilson. By her will Harriett W. Wilson devised and bequeathed her property and estate to trustees therein named and directed that an annuity for a certain period be paid to her daughter Kate M. Drury with the proviso that it should cease in the event of her remarriage. She bequeathed the sum of $ 1000 to her daughter Mary W. Little, the mother of plaintiff and defendants, and the sum of $ 1000 to each of her grandchildren; plaintiff, defendants and the Drury children. Robert Wilson Drury, son of her daughter Kate M. Drury was the youngest of the Drury children. As to the term or period of the trust the will provided that when the minor grandson Robert Wilson Drury reached the age of majority the trustees should partition and distribute the "whole of my property, not otherwise disposed of, . . . to the children of my daughter, Kate M. Drury, and the children of my daughter, Mary W. Little, born of her marriage with Mettee who are surviving at the time of said partition and distribution, the said children of both daughters aforesaid to receive equal parts, share and share alike." This paragraph of the will also provided for the termination of the trust in the event the grandson, Robert Wilson Drury died before attaining majority but as that contingency did not occur it is not necessary to set out the provisions made therefor. It will...