McMahan v. Hubbard

• Decision Date: 30 March 1909
• Citation: 217 Mo. 624,118 S.W. 481
• Parties: McMAHAN et al. v. HUBBARD et al.
• Court: Missouri Supreme Court

118 S.W. 481

217 Mo. 624

McMAHAN et al. v. HUBBARD et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

1. WILLS (§ 459)—CONSTRUCTION—PRESUMPTIONS AGAINST INTESTACY.

The general intention in a will to dispose of all of testator's property is given weight in determining what was intended by a particular devise, that may admit of enlargement or limitation; and the court, in pursuing the general presumption against intestacy, will supply, transform, or change the words in a will, so that the manifest intent will not be defeated.

2. WILLS (§ 489)—CONSTRUCTION—EVIDENCE IN AID OF CONSTRUCTION.

To determine the object of testator's bounty, or the subject of disposition, or the quantity of interest intended to be given, the court may inquire into every material fact relating to the person interested under the will and the property which is the subject of disposition, and to the circumstances of testator and of his family.

3. WILLS (§ 490)—CONSTRUCTION—EVIDENCE IN AID OF CONSTRUCTION.

Where testator devised land described as part of the S. W. ¼ of the S. E. ¼, etc., without mentioning any section, and part of the N. E. ¼ of the N. W. ¼ of section 33, parol evidence was admissible to show what lands testator had at the times of the making of his will and at his death, for the purpose of showing that the lands described without the designation of the section would dispose of lands in section 28, which he owned.

4. WILLS (§ 560)—CONSTRUCTION—EVIDENCE IN AID OF CONSTRUCTION.

Testator devised lands described as part of the S. W. ¼ of the S. E. ¼, etc., without giving any designated section, and a part of the N. E. ¼ of the N. W. ¼ of section 33. He declared that he made the gift to his wife, daughter, and adopted son, to give them ample support. The evidence showed that testator owned lands in section 28, which would be disposed of by the description in the will, provided section 28 was added thereto, and he owned no lands in section 33, except those described in the will. Held, that the words "section 33," in the will, would be confined to the land described as the N. E. ¼ of the N. W. ¼ of section 33, so that the will disposed of testator's lands in section 28.

5. WILLS (§ 488)—CONSTRUCTION—EVIDENCE IN AID OF CONSTRUCTION.

Parol evidence is admissible to show a latent ambiguity in a will, which may be removed by extrinsic evidence.

6. WILLS (§ 662)—CONSTRUCTION—CONDITIONS —PERFORMANCE.

Testator devised lands to his wife, daughter, and adopted son, and declared that the gift to the son was conditioned on his remaining with testator's wife until he was 21 years of age and behaving himself toward her as a son. The wife objected to the adopted son marrying when he did, but they were soon reconciled, and he continued to live on the farm and cultivate the land, and he was at the wife's house every day, furnishing her fuel and keeping up the farm. The wife was satisfied with his conduct toward her. Held, that the adopted son fulfilled the condition imposed and was entitled to the devise.

7. ABATEMENT AND REVIVAL (§ 14)—PENDENCY OF OTHER ACTION.

A suit to determine title to land, claimed by plaintiffs under a will and codicil admitted to probate, was tried without objection or request for a continuance, though the answer alleged the pendency of a suit by defendants to contest the codicil. Service of process in such suit had not been made on plaintiffs. During the trial an order for an alias summons on plaintiffs was obtained, and defendants only raised the pendency of the suit as a defense to the merits. Held, that the court properly refused to abate the suit.

8. WILLS (§ 354)—PROBATE.

Where the original will and codicil were written on the same sheet of paper, to which was attached the certificate of the probate judge, certifying that the judge had examined the instrument, and had heard the evidence of the subscribing witnesses, and adjudged the same to be the will of testator, the court properly ruled that the court had probated both the will and the codicil.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by Dora McMahan and others against Nannie E. Hubbard and others. From a judgment for plaintiffs, defendant Hubbard appeals. Affirmed.

R. M. Sheppard and John T. Sturgis, for appellant. Horace Ruark, James H. Pratt, and George Hubbert, for appellees.

GANTT, P. J.

This action was commenced in the circuit court of Newton county to determine the title to certain lands in said county. The plaintiffs claimed title to the lands in controversy under and by virtue of items 3 and 11 of the last will and testament of John McMahan, deceased, who is the common source of title, and the first section of the codicil to said will. The said provisions of the will are in these words:

"3. In order that my wife, my daughter Leah, and my adopted son William McMahan may have ample support, I give and bequeath unto them, the following described land, viz.: Seven acres, part of S. W. quarter of S. E. quarter, also N. W. quarter of S. E. quarter, also the E. one-half S. W. quarter and that part of the W. half S. W. quarter lying east of the present fence running on the east side of said tract. Also the twenty-three acres, being part of N. E. quarter of N. W. quarter of section 33. All the above land in township 25 of range 31."

"11. All the property herein bequeathed shall descend to the heirs of the bodies of those to whom it is bequeathed, provided said heirs are born in lawful wedlock and should any of my legatees die without heirs of their body as above stated, then all the property bequeathed to them shall descend to my legal heirs."

Codicil: "In explanation of section 3, where the bequeath is to my wife and daughter Leah and adopted son William McMahan, at the death of my wife, the real estate herein mentioned is to descend to my daughter Leah and William McMahan (adopted son)."

The plaintiffs, who are the wife and child of William McMahan, deceased, alleged in their petition that the land intended to be described and conveyed by the third clause of the said will to the testator's wife, daughter Leah, and adopted son William McMahan, is the land in controversy herein, and that by mistake the scrivener, in writing the will, failed to designate that all of said land described in said third item of the will is in section 28, except the last described tract of 23 acres, which is properly described as being in section 33.

The defendants in their answer allege that the said John McMahan made no disposition in his last will of the part of the land in controversy, which is located in section 28; that as to this land he died intestate. The defendants also said in their answer that all the bequests and gifts made to the said William McMahan by the said will were made upon the following terms and conditions, set forth in the seventh item of said will in the following language, viz.:

"7. All the bequests made to him are conditioned that he remain with his adopted mother until he is twenty-one years of age and behaves himself toward her as a dutiful son."

And it is asserted that the said William McMahan failed and refused to comply with the said terms or provisions of said will, and by his conduct and action forfeited any and all bequests under the terms and provisions of said will. The cause was tried in the circuit court of Newton county, and at the trial it was agreed that John McMahan died on the ___ day of ___, 1888, and that he left surviving him his widow, Elizabeth McMahan, who died on the 29th of July, 1904; that he also left surviving him as his only heir at law J. Raphael McMahan, who is a son by a former marriage, his daughter Leah McMahan, now Leah Goin, and his daughter Nannie E. Hubbard; that William McMahan, mentioned in the will as his adopted son, died on or about the 25th of December, 1901, leaving as his heirs his widow, Dora McMahan, and his children, Logan, Floyd, Noble, and Duard McMahan, all plaintiffs herein; that the defendant Commodore Thomas is the only child of Leah Goin.

The evidence on the part of the plaintiffs tended to show that the testator, John McMahan, at the time he executed his will, and at the time of his death, and for many years prior thereto, owned the land in suit in section 28, township 25, range 31, and neither at the time of the execution of his will, nor at any other time did he own any land in section 33, except the 23-acre tract described in said will as being a part of the N. E. ¼ of the N. W. ¼ of section 33 and the 40-acre tract west of said 23 acres, which he devised to his son J. R. McMahan in the ninth item of the will. The evidence also tended to show that, if section 33 should be held to be a part of the description of all the land described in item 3 of the will, then all of it, except the 23-acre tract, was at the time the said will was executed and at the time of the death of the testator owned by T. B. Durham and James Hubbard. A plat of section 33 and of a part of section 28 will accompany this opinion. The plaintiffs are claiming title to that part of the land shown by said plat which is inclosed in the red dotted lines. [Indicated by heavy black lines in plat.]

The evidence clearly demonstrated that the land in which the plaintiffs claim an interest in this suit belonged to John McMahan at the time his will was executed and at the time of his death, and that that part of said land contained in section 28 would have been the identical land described in item 3 of the will, if the scrivener, who drew the will, had inserted the words "section 28" just after the words "and that part of the W. half S. W. quarter." The testimony disclosed that the lands owned by John McMahan as his home farm was a compact body of land mostly in section 28, and the balance in section 33, immediately south. The house in which he and his family lived was and is on the part of the farm in section 28, and was occupied by his widow until her death...