McLain v. Mercantile Trust Co.
| Decision Date | 18 February 1922 |
| Citation | 237 S.W. 506,292 Mo. 114 |
| Parties | FLORENCE O. McLAIN, Appellant, v. MERCANTILE TRUST COMPANY et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Affirmed.
R. P. & C. B. Williams for appellant.
(1) Estoppel was sufficiently pleaded in plaintiff's petition. The pleader is not required to specifically designate the plea as one of estoppel if the facts pleaded show estoppel. Rieschick v. Kingelhoeffer, 91 Mo.App. 430; Cadematori v. Gauger, 160 Mo. 367. (2) The rule that estoppel, in order to be available must be specially pleaded, has no application where the basis of the contention is set out in an agreed statement of facts. Rivord v. Railway, 257 Mo. 169. (3) The widow having the right under the statute to renounce the will and to refuse to take thereunder and in addition thereto, as a part of the renunciation and refusal, the right to elect to take dower in the real estate or a child's part in the entire estate, having renounced under the will, may show her intention by acts and circumstances outside of the renunciation, that it was her purpose to take a child's part rather than a dower interest, and this will be controlling on all parties in interest. Waddill v Waddill, 129 N.E. 531. (4) To constitute an estoppel in pais, there must be: First, an admission inconsistent with the evidence proposed to be given or the claim offered to be set up; second, an action by the other party upon such admission; third, an injury to him by allowing the admission to be disproved. Of course, there must be notice or knowledge of the claim on the part of the party against whom the estoppel is invoked. Taylor v. Zepp, 14 Mo. 488; Newman v. Hook, 37 Mo. 213; Major's Heirs v. Rice, 57 Mo. 389; Harrison v. McReynolds, 183 Mo. 542; Delashmutt v. Teetor, 261 Mo. 412. (5) The defendant, having receipted to the executrix for the distributive share, the amount of which was determined by plaintiff's claim of a child's part in the estate, is estopped from denying plaintiff's title to the property claimed by virtue of renunciation made by her. McReynolds v. Grubb, 150 Mo. 352; Cadematori v. Gauger, 160 Mo. 367. (6) Although the plaintiff's renunciation under her hubsand's will was defective in that she did not formally elect to take a child's part of the real and personal estate, the defendant having from time to time accepted benefits under such defective election, would be estopped from setting up such defective election, or even want of any election when it accepted such benefits with the knowledge that the same were paid by plaintiff at the time, believing and claiming she was entitled to a child's part in the estate of her husband. Sage v. Finney, 156 Mo.App. 42; Robinson v. Rebworth, 71 Ala. 240; Hofference v. Halcom, 17 Kan. 378; Babbitt v. Karbe, 13 Kan. 612; McClanahan v. West, 100 Mo. 323; Hector v. Mann, 226 Mo. 247; Austin v. Loring, 63 Mo. 22. (7) If the parties with sufficient notice or means of knowledge of their rights and of all the material facts remain inactive or abstain from impeaching the transaction so that the other party is induced to suppose that it is recognized, this is acquiescence, and the transaction, although originally impeachable, becomes unimpeachable. There is no necessity of a positive affirmation. 10 R. L. C. p. 694, sec. 22; Rothchilds v. Trust Co., 204 N.Y. 458; Wiltmore v. Stetler, 137 Ind. 127; Delashmutt v. Teetor, 261 Mo. 441; In re Goesling Estate, 230 S.W. 617.
Robert A. Roessel for respondents.
(1) An election is necessary under the law to entitle a widow renouncing under a will to take under certain sections of the statute, particularly where real estate is involved. Hamilton v. O'Neil, 9 Mo. 11; Coke's Littleton, sec. 523; United States v. Grundy, 3 Cranch, 337; Welsh v. Anderson, 28 Mo. 293; Allen v. Harnett, 160 Mo. 278; Klocke v. Klocke, 208 S.W. 825; R. S. 1909, sec. 356. (2) This election as to these sections of the statutes must be in the form prescribed by law, and failure to so properly elect relegates the widow to dower under Sec. 345, R. S. 1909. R. S. 1909, sec. 357, as amended, Laws 1917, p. 168; Kemp v. Holland, 10 Mo. 259, Price v. Woodford, 43 Mo. 247; Welsh v. Anderson, 28 Mo. 299; Allen v. Harnett, 116 Mo. 286; Castleman v. Castleman, 184 Mo. 432. (3) Estoppel to be availed of must be specifically pleaded, particularly when issue is joined on an entirely different state of facts. Dibert v. D'Arcy, 248 Mo. 661; Stone v. Cook, 179 Mo. 548; Loving v. Cattle Co., 176 Mo. 352; Railway v. Curtis, 154 Mo. 20; Bray v. Marshall, 75 Mo. 330; Cooley v. Ins. Co., 185 Mo.App. 662; Gillen v. Ins. Co., 178 Mo.App. 106; Miller v. Anderson, 19 Mo.App. 74; Bigelow, Estoppel (6 Ed.) p. 761; Thompson v. Lindsay, 242 Mo. 76. (4) There is no estoppel by the record where the record has to do only with personal estate, and when the matter in hand has to do with real estate over which the probate court at no time had jurisdiction. Jewett v. Boardman, 181 Mo. 647; Goffery v. Coal Co., 95 Mo.App. 181. There can be no estoppel where plaintiff, by her own free act, on the advice of counsel and before defendants had any knowledge of what course she intended to pursue, held herself out as being entitled to a certain share and where by her own acts and conduct she induced defendants to rely upon and believe in her claim as true. In the case at bar there is no element of estoppel present. Taylor v. Zepp, 14 Mo. 488; Newman v. Hook, 37 Mo. 213; Bales v. Perry, 51 Mo. 453; Spurlock v. Sproule, 72 Mo. 508; Acton v. Dooley, 74 Mo. 67; Mueller v. Kaessman, 84 Mo. 329; Blodgett v. Perry, 97 Mo. 272; Hequoemerg v. Edwards, 155 Mo. 522; Harrison v. McReynolds, 183 Mo. 542; Lack v. Brecht, 166 Mo. 258; Thompson v. Lindsay, 242 Mo. 76; De Lashmutt v. Teetor, 261 Mo. 440; McLure v. Bank, 263 Mo. 135; In re Doe Run Lead Co., 223 S.W. 608; Nicols v. Bank, 55 Mo.App. 81; Shields v. McLure, 75 Mo.App. 631; Stone v. Bank, 81 Mo.App. 9; Bank v. Horn, 83 Mo.App. 114; Bright v. Mueller, 95 Mo.App. 270; 16 Cyc. 679; Bispham's Eq. Jurisprudence, sec. 434; Bigelow on Estoppel (6 Ed.) 603; Wharton on Evidence, art. 1143. There is no estoppel where the party knew or had the same means of knowing the truth as the other party. Silence only estops when it becomes a fraud. Bales v. Perry, 51 Mo. 453; Rutherford v. Tracy, 48 Mo. 325. To constitute an estoppel by conduct there must have been a misrepresentation or concealment of material facts, made with a knowledge of the true facts to a person ignorant of the true facts and made with the intent that it shall be acted on. Acton v. Dooley, 74 Mo. 67; Stone v. Bank, 81 Mo.App. 16; Mueller v. Kaessman, 84 Mo. 329. (6) In any event, a trustee for a life tenant has no power to bind the remaindermen or their title, and cannot dispose of the remainder by estoppel or ratification of a void act. De Lashmutt v. Teetor, 261 Mo. 440.
REEVES, C. Railey and White, CC., concur.
Suit in partition of a certain lot or parcel of land in the city of St. Louis. At the conclusion of the testimony the court nisi dismissed plaintiff's petition and she appeals.
The petition was in the usual form, alleging that J. T. McLain, deceased, by his last will and testament duly admitted to probate on the 8th day of November, 1916, devised and bequeathed said property to the Mercantile Trust Company, as trustee, for the benefit of plaintiff, and Margaret Merle Schierbaum, her daughter, and Girard D. Schierbaum, her grandson, to enjoy the income therefrom in the following proportions: One-half to plaintiff, one-fourth to her daughter, Margaret Merle Schierbaum and one-fourth to her grandson, Girard D. Schierbaum; that on the second day of January, 1917, plaintiff filed her renouncement of said will as the widow of said J. T. McLain, deceased; "that at the time of said renouncement she intended to take a one-half interest in said estate, and ever after that did take a one-half interest in said estate; that in making her settlements with said court, one-half interest in the rents of said property and said estate were given and awarded to her, and after the administration of said estate, a one-half interest in said rents and profits of said estate were paid to her by consent of all the parties, recognizing that she was the owner of a one-half interest in said estate by virtue of said renunciation so made as above."
It was further alleged that appellant paid one-half of the debts of the estate and one-half of the taxes due on said estate and that the Mercantile Trust Company paid the other half; and "that at the time of renouncing under said will the Probate Court of the City of St. Louis made an order that she take a one-half interest in said estate, and she has relied upon said renouncement and said conduct of the parties hereto as giving her an undivided one-half interest in said above property in fee simple right."
Other immaterial allegations were contained in the petition, and there was the usual prayer for partition of said real estate.
Defendants answered, admitting the death of J. T. McLain and due proof of his will, and the devise of said property to respondent, Mercantile Trust Company, as trustee, and that appellant renounced said will at the time alleged in her petition, and then specifically denied that by such renunciation, by election, or by any other means or medium, plaintiff became entitled to a one-half interest in the said premises.
The case was tried below upon an agreed statement of facts, which tended to support the allegations of appellant's petition in so far as the terms of the will were concerned, and it appeared that the Mercantile Trust Company, as trustee, had declined to take charge of the...
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