Miller v. Holt
| Decision Date | 31 October 1878 |
| Citation | 68 Mo. 584 |
| Parties | MILLER v. HOLT, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court.--HON. H. L. KELLEY, Judge.
Rea & Williams for appellant.
A will or devise is a disposition of property to take effect after the death of the maker. Burrell's Law Dic., vol. 2, p. 622; Bouvier's Inst., vol. 2, p. 431; Bouvier's Law Dic. The instrument in question is a will and not a deed. An instrument in the form of a will, or deed, whether it be a deed or gift, deed of sale with a good or valuable consideration, or an indenture, will operate as a will, and not as a deed, if by its terms it is to take effect after the death of the maker. Bacon's Abr., vol. 10, p. 480; Hickson v. Wicham, Finch 195; Henry v. Ballard, 2 Car. L. Rep. 595; Stewart v. Stewart, 4 Conn. 316; Brewer v. Baxter, 41 Ga. 212; Hester v. Young, 2 Kelly 31; Jackson v. Copenhagen, 3 Kelly 569; Symes v. Arnold, 10 Ga. 506; Walker v. Jones, 23 Ala. 448; Gillham v. Mustin, 42 Ala. 365; Matter of Belcher, 66 N. C. 51; Daniel v. Veal, 32 Ga. 589; Bouvier's Inst., vol. 2, p. 448.
William Heren & Son for respondent.
On the 20th day of October, 1870, Nelson McD. Allen and Lewis Allen, his father, entered into the following written agreement:
| STATE OF MISSOURI, COUNTY OF ANDREW, |
| ) |
| October 20th, 1870. |
)
“I this day, for and in consideration of the benefits of a certain will, which is the last will and testament of Lewis Allen, in regard to a certain tract of land, to-wit, (describing the fifty-four acre tract in controversy,) enter into a bond for the support of the said Lewis Allen during his natural life-time. In case the support from myself is a good, decent one, then the above described land, at the death of said Lewis Allen, is, by his last will, made on the 20th day of October, 1870, conveyed to the said N. McD. Allen, his heirs and assigns forever, with all its privileges and appurtenances in any wise thereunto belonging. In case the above obligation on the part of N. McD. Allen is not complied with, then the said will is null and void.
NELSON MCD. ALLEN.
LEWIS ALLEN.
ISRAEL KNAPPENBERGER.
HENRY KNAPPENBERGER.”
On the same day Lewis Allen executed the following instrument:
| STATE OF MISSOURI, COUNTY OF ANDREW, |
| ) |
| October 20th, 1870. |
)
“Know all men, and all whom it may concern; That the following indenture of writing is my last will and testament concerning a certain tract of land which will be described in the following: Know all men, that I do hereby, on and after the day of my death, by this will, grant, convey and assign to Nelson McD. Allen, his heirs and assigns forever, the following described tract of land, to have and to hold the same, with all its privileges and appurtenances in any wise thereunto belonging, and is the tract of land described as follows; (describing the tract in controversy as in the foregoing agreement,) and now, that I acknowledge this to be my last will and testament in regard to the above described tract of land, and for the purpose therein mentioned, and for the benefit of the said N. McD. Allen, and anything in this document to the contrary notwithstanding. I have hereunto set my hand and affixed my seal, signed this, the 20th day of October, 1870.
Attest: ISRAEL KNAPPENBERGER.
HENRY KNAPPENBERGER.”
N. McD. Allen sold and conveyed the land described in said instrument to the plaintiff. After the death of Lewis Allen the said paper, as the last will and testament of Lewis Allen, was admitted to probate by the probate court of Andrew county on the 5th day of October, 1871, on the evidence of the attesting witnesses; but by whom it was offered for probate, or in whose custody it was found, is not disclosed by the evidence. The defendants Snyder and Watson, each had a claim against the estate of Lewis Allen, that was allowed by the probate court, which, on proper proceedings, made an order for the sale of the land in controversy for the payment of debts. The plaintiff, a purchaser from N. McD. Allen, and in possession of the land, filed his bill, praying for an injunction against the administrator of the estate and said creditors, to restrain them from proceeding with said sale. A temporary injunction was issued, and on a hearing of the cause the court made a decree perpetuating the injunction, from which defendants have appealed.
It does not appear from the pleadings, or the evidence, that the instrument admitted to probate, which respondent contends is a deed, was acknowledged or recorded, or was ever delivered to N. McD. Allen, or in his possession. A deed has no vitality until...
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