McIntosh v. Wiggins

• Decision Date: 14 July 1947
• Docket Number: 40181
• Citation: 204 S.W.2d 770,356 Mo. 926
• Parties: Mary Lois McIntosh, Appellant, v. Charles Wiggins et al
• Court: Missouri Supreme Court

204 S.W.2d 770

356 Mo. 926

Mary Lois McIntosh, Appellant, v. Charles Wiggins et al

No. 40181

Supreme Court of Missouri

July 14, 1947

Rehearing Denied September 8, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed.

Paul Bakewell, Jr., for appellant; Claude I Bakewell and John E. Cramer, Jr., of counsel.

(1) The will did not expressly declare a joint tenancy, therefore, the Fowler property passed to Dolly L. Kilpatrick and Ella L. Wiggins as tenants in common. Sec. 3504, R.S. 1939. (2) Any right of survivorship, unless expressly declared, is contrary to public policy, as clearly indicated by our statutes. Rodney v. Landau, 104 Mo. 251; Lemmons v. Reynolds, 170 Mo. 234; State ex rel. Ashauer v. Hostetter, 127 S.W.2d 697. (3) The mandatory statutes applied to this will. Kennard v. Wiggins, 160 S.W.2d 706. (4) By force of those statutes the equal portion of the Fowler property which passed to Dolly L. Kilpatrick for her life, vested in fee simple in the heirs of her body at the time of her death. Secs. 563, 3498, 3500, R.S. 1939; Kennard v. Wiggins, 160 S.W.2d 706. (5) It is not within the power of any court to adjudge title contrary to the express directions of mandatory statutes and when a court does so its judgment is void. (6) If a judgment be void, any kind of proceeding to cancel it may be successfully pressed. State ex rel. v. Hostetter, 79 S.W.2d 463. Lemmons v. Reynolds, 170 Mo. 234; Brown v. Rogers, 125 Mo. 392; Harbison v. Swan, 58 Mo. 147; State v. Brown 33 S.W.2d 104. (7) Any act, including any judgment, which contravenes the express directions of a statute, is contrary to public policy and is therefore void. Denny v. Guyton, 40 S.W.2d 562; State v. Brown, 33 S.W.2d 104; Pomeroy's Sedgwick Statutory and Constitutional Law, p. 73; 1 Herman on Estoppel and Res Adjudicata, pp. 61, 62. (8) When a court inadvertently determines that the title to the same property is in two different people at the same time its judgment is void and of no effect. Black on Judgments (2nd Ed.), p. 9; Gage v. Downey, 94 Cal. 241, 29 P. 635; Welch v. Louis, 31 Ill. 446; Whitesides v. Lackey, 1 Litl. (Ky.) 80. (9) The circuit court had full power to declare the judgment of this court void. Ralph v. Annuity Realty Co., 28 S.W.2d 662; Prasse v. Prasse, 115 S.W.2d 817. (10) When this court rendered a judgment under a mistake of fact, it will review the case on a second appeal. Mangold v. Bacon, 237 Mo. 496; Dunn v. Alton Railroad, 104 S.W.2d 314. (11) Missouri is the "sole mistress" of the devolution of property within her borders. DeLashmutt v. Teetor, 261 Mo. 412; Hood v. McGehee, 237 U.S. 611. (12) Such devolution, whether by deed, descent or by any other mode, is subject to the limitations and obligations of the statutes of Missouri. United States v. Fox, 94 U.S. 315; Ferguson v. Gentry, 206 Mo. 202. (13) Any judgment which contravenes an express statute is void as against public policy. The highest evidence of the public policy of a state is its statutory law. Reed v. Jackson County, 142 S.W.2d 862; State v. Clarke, 54 Mo. 17. (14) A void judgment is without any effect either upon the person or the property. In re Buckles, 331 Mo. 405; Ripley v. Bank of Skidmore, 198 S.W.2d 861. Therefore a void judgment cannot be res adjudicata. (15) An injunction may restrain any benefit from an unjust judgment of a Federal Court. M'Elmoyle v. Cohen, 13 Peters, 313; Embry v. Palmer, 107 U.S. 3. (16) With respect to title to real estate the law of Missouri is supreme and controlling. Thompson v. Magnolia Petroleum Co., 309 U.S. 478. (17) And any Federal judgment, contrary to the law of the state, must yield to the law of the supreme jurisdiction. Blair v. Commissioner, 300 U.S. 5; Messenger v. Anderson, 225 U.S. 436. (18) The title of a party under a will is measured and determined by the law of that state, and does not depend upon the presence or absence of a decree of another jurisdiction which is contrary to that law. Clarke v. Clarke, 178 U.S. 186. (19) The law of Missouri is supreme and controlling with respect to the title of the beneficiaries under the will. Lyeth v. Hoey, 305 U.S. 188; Uterhart v. United States, 240 U.S. 598. (20) And with respect to the invalidity of the original decree of the circuit court of Missouri. Oklahoma Packing Co. v. Gas. Co., 309 U.S. 4. (21) The plaintiff's title to the property since August 10, 1928 is established by the statutes. That title necessarily establishes her right to the income from the property since that date. Atkison v. Dixon, 96 Mo. 577; Macklin v. Schmidt, 104 Mo. 361. (22) The construction of the will was the thing adjudged on the appeal by Mrs. Wiggins. She is bound by that construction. Buckner v. Buckner, 210 S.W. 887. (23) By taking and holding other property under this will she adopted the will and thereby renounced every right inconsistent with the will. Equity will not permit the same person to take under a will and at the same time to take or hold against the will -- meaning contrary to the intention of the testator. Lindsley v. Patterson, 177 S.W. 826; In re Dean's Estate, 166 S.W.2d 533; Colvin v. Hutchison, 92 S.W.2d 667; Wood v. Conqueror Trust Co., 265 Mo. 511, 178 S.W. 201. (24) The plaintiff is entitled to interest on the judgment rendered by the circuit court in this case on September 12, 1944 from that date. In re Thomasson's Estate, 192 S.W.2d 870; Laughlin v. Boatmen's Bank, 189 S.W.2d 974.

Shepley, Kroeger, Fisse & Ingamells and Lehmann & Allen for respondents.

(1) When, upon the former appeal this cause was remanded to the circuit court with directions to enter the judgment as directed by the mandate, that court had no power to enter any other judgment or consider or determine other questions than the duty of entering the judgment as directed. Stump v. Hornback, 109 Mo. 273; Meyer v. Goldsmith, 196 S.W. 745; State ex rel. v. Lamb, 232 S.W. 983. (2) On this appeal from the decree entered below pursuant to the mandate of this court, there is nothing this court can consider except the compliance of the decree with the mandate. Booth v. Scott, 240 S.W. 217; Sabol v. St. Louis Cooperage Co., 31 S.W.2d 1041. (3) This court has no jurisdiction to alter its own final judgment entered on the former appeal in this case. Aetna Life Ins. Co. v. Hyde, 327 Mo. 115, 34 S.W.2d 85. (4) On the motion filed below to set aside the decree of the circuit court rendered pursuant to the mandate on the ground that it is void, the court can consider only matters patent on the record and neither the circuit court nor this court can consider questions regarding the correctness of the judgment or the sufficiency of the evidence to authorize it. Jeude v. Sims, 258 Mo. 26; Crabtree v. Aetna Life Ins. Co., 111 S.W.2d 103. (5) All the issues raised by the present appeal were raised by Mrs. McIntosh in this court on the prior appeal either in the principal hearing or in her petition for rehearing and were decided against her by this court and are res adjudicata. McIntosh v. Wiggins, 191 S.W.2d 637; In re Breck, 252 Mo. 302; Chouteau v. Gibson, 76 Mo. 38.

OPINION

Hyde, J.

This is an appeal from the judgment entered on our mandate in McIntosh v. Wiggins, 354 Mo. 747, 191 S.W.2d 637, in which we remanded the cause "with directions to declare that, under the original will construction decree by which respondent (appellant herein) is bound, respondent's right to the possession and enjoyment of the 1/12 interest here in dispute vested in her on October 17, 1942; and to enjoin the further prosecution of respondent's claim for income and interest." October 17, 1942, was the date of the death of Mrs. Ella L. Wiggins who claimed a life estate in the interest involved. The facts concerning the entire controversy may be found in our opinion, supra.

The judgment entered on our mandate, from which this appeal is taken, is as follows:

"1. That plaintiff, Mary Lois McIntosh, is bound by the original will construction decree of the Circuit Court of the City of St. Louis, entered on June 22, 1923, entitled Wiggins et al. v. Perry et al., being Cause No. 34209B and that under said decree plaintiff's right to the possession and enjoyment of the 1/12th interest in dispute in this case vested in her on October 17, 1942.

"2. That the plaintiff, Mary Lois McIntosh, her heirs, successors and assigns and her agents and attorneys be, and the same are, hereby enjoined and restrained from in any wise further prosecuting her claim for income and interest made in this case.

"3. Costs to be taxed against plaintiff."

Appellant's notice of appeal also specifies an appeal from the order overruling her motion to declare void the judgment and decree entered herein; but this is not an appealable order under Section 126 of our Code. [Section 847.126 Mo. Stat. Ann.; as to motion to set aside under Section 1267, R.S. 1939 for error patent on the record see Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1.] However, the appeal from the judgment herein is timely, so we will disregard this part of the notice as surplusage. We also overrule respondent's motion to dismiss appeal, based on form of statement, but without approval of the statement contained in appellant's brief.

Usually on such an appeal the only question this court can consider is whether the judgment entered is in compliance with our mandate. [Booth v. Scott (Mo. Sup.), 240 S.W. 217; see also Hoelzel v. Chicago, R.I. & P.R. Co., 340 Mo. 793, 102 S.W.2d 577; Prasse v. Prasse, 342 Mo. 388, 115 S.W.2d 807 and cases cited.] There can be no question here about the compliance of the above judgment with the directions of our mandate. However, appellant contends that our judgment, directing its entry, is void. Of course, "a void judgment of an...