Mudd v. Cunningham

• Decision Date: 02 December 1915
• Docket Number: No. 17603.,17603.
• Citation: 181 S.W. 386
• Parties: MUDD v. CUNNINGHAM et al.
• Court: Missouri Supreme Court

181 S.W. 386

MUDD v. CUNNINGHAM et al.

No. 17603.

Supreme Court of Missouri, Division No. 1.

December 2, 1915.

Appeal from Circuit Court, Ralls County; William T. Ragland, Judge.

Action to determine title by Andrew Mudd against George Cunningham and others. Judgment for plaintiff, and defendants appeal. Affirmed.

R. H. Norton and W. A. Dudley, both of Troy, for appellants. Chas. Martin, of Troy, for respondent.

GRAVES, J.

Action to determine title. The land is situated in Lincoln county. George Cunningham died in Lincoln county in the year 1888, leaving a will. He left surviving him a widow and five children — four children by a former wife, who are the defendants in this action, and one child, Mary Ellen, by the widow, Susan Cunningham. At his death, and at the date of his will, said Cunningham claimed to own 87 acres of land, as follows:

"Seven acres off of the south end of the east half of the east half of the northwest quarter of section 27, the south half of the south half of the northwest quarter of section 26, and the southwest fourth of the northeast quarter of said section 26, all in township 50 of range 2 west."

The three tracts were all contiguous. The dwelling house, where he lived for years and where he died, was located on the south half of the south half of the northwest quarter of said section 26. The will reads:

"I, George Cunningham, considering the uncertainty of this mortal life, and being of sound mind and disposing memory, do make and publish this my last will and testament in manner and form following (that is to say): 1st, I give and bequeath unto my beloved wife, Susan, 1 cow named Rose, 1 brood-sow, 1 sorrel mare, 1 black mare, and all the farming implements on hand and if any one of said mares have a colt the ensuing year it is to belong unto my daughter, Catherine Cunningham, at weaning time. The remainder of my personal property I will and bequeath that my executor sell and dispose of the same and pay all of my just debts and the remainder if any after paying my debts be equally divided amongst all my children and wife alike.

"2nd, I give and bequeath unto my beloved wife Susan the following real estate, viz.: The south half of the south half of northeast quarter of section (26) twenty-six. Also south part of east half of northeast quarter of section (27) twenty-seven, township (50) fifty, range (2) two west, containing forty-seven acres more or less, and at the death of my said wife said land shall become as the absolute property of my daughter, Mary Ellen Cunningham, and in the event that my daughter, Mary Ellen, dies before her mother then said property shall become as the absolute property of my said wife Susan and she may sell and dispose of the same. 3rd, I give and bequeath unto my beloved daughter, Catherine, one-half of the southwest quarter of the northeast quarter of section (26) twenty-six, township fifty, range two west, and the remainder of the other one half of said southwest quarter of the northeast quarter of said section twenty-six be equally divided share alike between my sons, William Cunningham, Michael Cunningham and George Cunningham, when they arrive at full age. 4th, I hereby appoint Michael Dunn sole executor of this my last will and testament. In witness whereof I have hereunto set my hand and seal this 11th day of September, 1888."

The testator did not own the southeast quarter of the northeast quarter of section 26 at the time of making the will or at the time of his death. The trial court made a full finding of facts, and the above are borrowed largely therefrom. He made other findings as follows:

"The court further finds that the defendants George, William, Michael, and Kate Cunningham, about the year 1890, by their several deeds of conveyances, sold and conveyed to one John E. Scott the said southwest fourth of the northeast quarter of section 26, reciting in their several deeds that they acquired title to the same under and by virtue of the last will and testament of the said George Cunningham, Sr., deceased.

"The court further finds that the said George Cunningham, deceased, intended in and by the second paragraph of his last will and testament to devise to his wife, Susan Cunningham, and his daughter, Mary Ellen Cunningham, the south half of the south half of the northwest quarter of section 26, but that the scrivener by inadvertence and mistake wrote the `northeast' instead of the word `northwest' where the same occurs before the words, in said second paragraph, `quarter of section (26) twenty-six,' and that in reading and construing said second paragraph of said last will the word `northwest' should be read, instead of the word `northeast,' where the same occurs before the words `quarter of section (26) twenty-six.'

"The court further finds that on the 23d day of December, 1911, said Mary Ellen Cunningham, under and by the name of Mary Ellen Nichols, being joined by her then husband, James Nichols, by general warranty deed conveyed to the plaintiff, Andrew Mudd, all of the said south half of the south half of the northwest quarter of section 26, township 50, range 2 west, containing 40 acres, more or less; and the court further finds that prior to such conveyance the said Susan Cunningham had departed this life. The court further finds the defendants claim some title, estate, and interest in the said south half of the south half of section 26 aforesaid, to wit, an undivided four-fifths thereof. The court finds issues for the plaintiff.

"Wherefore it is by the court ascertained, determined, ordered, and adjudged that the plaintiff is the absolute owner of said south half of the south half of northwest quarter of section 26, and has title thereto in fee simple, and that neither the said defendants nor any one of them has any right, title, or interest in or to the same. It is further ordered and adjudged that the plaintiff have and recover of and from the defendants his costs in this behalf expended, and that he have execution thereof."

From such findings and judgment the defendants have appealed.

I. This case lies within a very narrow compass. It is clear that the testator was attempting to dispose of all of his property. It is clear that by the terms of his will he attempted to dispose of property which he never owned. The question it: Was the trial court right in saying that the second paragraph of the will should be construed as if the word "northwest" was written therein instead of the word "northeast," where the same occurred before the words "quarter of section (26) twenty-six" in such will? The trial court excluded evidence offered by plaintiff as to declarations made by testator, both before and after the making of the will, as to the lands intended to be conveyed by the will. However, upon the remaining facts he found for plaintiff. In this we think he was right, for reasons presently to be assigned.

II. The question presented is an interesting one, but not a new one. It must stand conceded that courts of equity cannot correct wills under the mere guise of a mistake. Courts cannot and do not reform wills. The learned annotator of the case of Lomax v. Lomax (Ill.) in 6 L. R. A. (N. S.) loc. cit. 945, says:

"The reason why the chancery powers of a court cannot be invoked to reform a will is that an action to reform a written instrument is essentially one for a specific performance. A devisee is a mere volunteer; the making of a will being a voluntary act, there is, therefore, no consideration to support the action, as in actions to reform deeds or contracts. Volunteers under wills have no equity whereon to found a suit for specific performance. Sturgis v. Work, 122 Ind. 134, 17 Am. St. Rep. 349, 22 N. E. 996."

But courts do find the intent of the testator from the will itself, and, if there be latent ambiguities therein, by extrinsic evidence. The pole star of will construction is the real intent of the testator. Let us take the will before us. It is clear that the testator intended to will to his widow and daughter, Mary Ellen, 47 acres of land. It is also clear from the will itself that 40 acres of this 47 acres was located in section 26. By making a will the presumption of law is raised that he intended to and did dispose of all his property. This will upon its face would tend to show such an intent.

Now, returning to the will, and comparing clauses 2 and 3 thereof, we find that in clause 3 he has given to the four children by the first wife 40 acres of land; but, when we go back to clause 2, we find that, when he gave to the widow and daughter the "south half of the south half of the northeast quarter of section twenty-six," he was giving to them 20 acres of land, afterward given by clause 3 to the other four children, when in said clause he gave to such four children "the southwest quarter of the northeast quarter of section twenty-six." In other words, the description in clause 2 of the will covers the south 20 acres devised to the four children under the third clause of the will. It is clear from the third clause that he intended these four children to have 40 acres of land, and it is likewise clear that he intended by the second for the widow and the child by her to have 47 acres of land. The attached plat shows the situation.

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