Nichols v. Robinson

• Decision Date: 28 March 1919
• Citation: 211 S.W. 11,277 Mo. 483
• Parties: EFFIE NICHOLS et al. v. LOUIS ROBINSON, Appellant
• Court: Missouri Supreme Court

211 S.W. 11

277 Mo. 483

EFFIE NICHOLS et al. v. LOUIS ROBINSON, Appellant

Supreme Court of Missouri, First Division

March 28, 1919

Appeal from Cape Girardeau Circuit Court. -- Hon. Frank Kelly Judge.

Affirmed.

Wilson Cramer for appellant.

(1) Lots 10, 11 and 14, comprising 108 acres, valued at the time at $ 5 per acre, constituted the homestead of Martin Asher. At his death on May 5, 1875, it passed in fee to his widow Sarah Asher, and was not subject to devise. (2) The Act of March, 1875, by which the widow's interest in the homestead was reduced to a life estate, did not go into effect until June 16, 1875, or ninety days after its passage although it contains the following provision: "Sec. 3. This act shall take effect and be in force from and after its passage." This section is unconstitutional and contrary to the General Statute relating to the taking effect of acts of the General Assembly. Constitution 1865, art. 5, sec. 9; G. S. 1865, p. 76, sec. 4; Ex parte Lucas, 160 Mo. 218; Charless & Blow v. Lamberson, 1 Iowa 435. Under the Constitution the General Assembly had no power to provide that an act should take effect and be in force from and after its passage. To hold otherwise is to ignore the mandatory provision requiring that a bill shall be presented to the Governor for his approbation before it becomes a law. Const., Art. 4, Sec. 38; Art. 5, Sec. 9. The Constitution of 1865, simply says: "Every bill which shall have been passed by both houses of the General Assembly, before it becomes a law, shall be presented to the governor for his approbation," and allows him ten days (Sunday excepted) for its consideration. It does not make it the duty of any one to present the bill to the Governor, nor fix the time when it shall be done. A bill may therefore be submitted to the Governor on the day it was passed, or at any other time during the sitting of the General Assembly, but in no event can become a law until it has been so presented. How, then, can it constitutionally be provided that a bill shall take effect from its passage? (3) Since the Act of March 18, 1875, amending the homestead law, did not go into effect till June 16, 1875, after the death of Martin Asher, the homestead vested by operation of law in his widow, Sarah Asher, in fee, and by her deed of November 29, 1878, was transferred to Elizabeth Asher and A. P. Asher, who conveyed by deed of May 3, 1881, lots 10 and 11 to William Stringer, from whom defendant obtained title by deed dated May 26, 1891. (4) The court below erred in receiving in evidence, over the objections of defendant, the paper purporting to be the last will of Martin Asher, deceased. A certificate of probate was granted by the clerk in vacation, but, unlike the cases in which this court has indulged the presumption that the act of the clerk had been confirmed by the court, the evidence in this case is direct and undisputed that there never was an order of court confirming the act of the clerk in vacation, or admitting the will to probate. Nor can any weight be attached in this case to the fact of recording. The will was filed June 29, 1875, probated by the clerk July 3, and recorded within two days afterwards, on July 5, 1875. The court met in regular session on July 26, 1875. The only acts shown by the evidence to have been done by the court are the approval of the act of the clerk in vacation in granting letters and taking bond, and the approval of the settlements made by the executors. If this is confirmation of the probate of the will by the clerk in vacation the statute is meaningless. This court has decided time and again that a will not probated is ineffectual to pass title and is not admissible in evidence. Farris v. Burchard, 242 Mo. 1; Snuffer v. Howerton, 124 Mo. 637.

L. M. Henson and Mozley & Woody for respondents.

(1) The statute cutting down the widow's homestead right from an estate in fee to a life estate took effect and became operative on the 18th day of March, 1875, prior to the death of Martin Asher. This being true, his widow took a life estate and not the fee, and her deed passed only such estate, which estate terminated at the date of her death in 1913. Laws 1875, p. 60; G. S. 1865, ch. 5, sec. 4, p. 76; Neff v. McGuire, 52 Mo. 493; Swan v. Buck, 46 Miss. 269; Poole v. Brown, 98 Mo. 680; Poland v. Vesper, 67 Mo. 727; Ailey v. Burnett, 134 Mo. 313; Burgess v. Bowles, 99 Mo. 543; Davidson v. Davis, 86 Mo. 440; Bushnell v. Loomis, 234 Mo. 371. (2) The will was presented to the clerk of the county court on the 29th day of June, 1875. The proof of David Duffy and Isom Keith, subscribing witnesses, was taken. That of the remaining subscribing witness, Stephen Chapman, was taken on the 2nd day of July, 1875, before a commissioner of Butler County. On July 3, 1875, the will was admitted to probate by the clerk of the county court and the will itself was recorded in the office of said clerk in a book kept for that purpose. On August 3, 1875, in vacation, letters testamentary were granted to the executors named in the will. This act of the clerk was afterwards approved by the court in term time. The estate was administered under the provisions of the will. All of the debts of the testator were paid, all of the legacies provided in the will were paid, and in 1878 the executors were discharged. The act of the clerk in admitting the will to probate was, by the above orders made in said estate, confirmed by the court. 16 Enc. Pl. & Pr. 1043; 40 Cyc. 1343; In re Will of Warfield, 22 Cal. 51, 83 Am. Dec. 49; Holliday v. Ward, 19 Pa. 483, 57 Am. Dec. 671; Jourden v. Meier, 31 Mo. 40; Creasy v. Alvison, 43 Mo. 13, 20; Rothwell v. Jamison, 147 Mo. 601; Hartwell v. Parks, 240 Mo. 527; Lackland v. Stephenson, 54 Mo. 108; Farris v. Burchard, 262 Mo. 334; Macy v. Stark, 116 Mo. 481. (3) The county court of Stoddard County had exclusive jurisdiction of the probate of wills and the administration of estates under the provisions thereof. It obtained jurisdiction of this particular will and the estate of Martin Asher by reason of the filing of his will in the office of the clerk. This court administered the estate through the executors nominated in the will, paid the debts and legacies, approved the final settlement and discharged the executor. Every presumption will be indulged that the court confirmed the will and in the absence of some fact, recital or statement contained in the records of the court with reference to this estate which shows affirmatively that the will was rejected, the above presumption becomes conclusive. Bingham v. Kollman, 256 Mo. 589; Skillman v. Clardy, 256 Mo. 297; Hartwell v. Parks, 240 Mo. 537; Chlanda v. Transit Co., 213 Mo. 260; Macy v. Stark, 116 Mo. 481; Carey v. West, 139 Mo. 136; Farris v. Burchard, 262 Mo. 334. (4) Practically forty years had elapsed since this will was probated and the estate administered under its provisions. While the estate was in the probate court, all the parties acted on the presumption that the will was properly probated. It is now too late for either of the interested parties or their grantees to question the probate of this will. Chap. 145, R. S. 1879, secs. 29 and 31; Jourden v. Meier, 31 Mo. 40; Lackland v. Stephenson, 54 Mo. 108; Stowe v. Stowe, 140 Mo. 594; Hans v. Holler, 165 Mo. 47.

GRAVES, J. Bond, J., concurs in paragraph 3 and in the result.

OPINION

GRAVES, J.

The petition in this case contains two counts, (1) one to quiet title and (2) one in ejectment. Each is conventional in form.

To the first count of the petition the defendant answered (1) by admitting his possession and admitting his claim of title, and averring that he held the record title from the patentee down and a general denial of other matters, and (2) the ten-year Statute of Limitations is invoked. To the second count he answered (1) by admitting his possession, claiming ownership, and denying other matters, and (2) a plea of the ten-year Statute of Limitations, and (3) a plea of the 24-year Statute of Limitations.

Reply was a general denial. Judgment for plaintiffs and defendant has appealed.

The facts of this case are simple and to the point. The land involved is conceded to be a part of the homestead of one Martin Asher, who is the common source of title. Martin Asher died testate on May 5, 1875. At this point dates are material. He left as his widow, Sarah Asher and a son, A. P. Asher. The fourth and fifth clauses of the will read:

"Fourth: I give and devise to Elizabeth Asher, wife of my son Arthur P. Asher, and the heirs of her body, all of my real and personal estate, after all my just debts, liabilities and the legacies herein provided for are paid off and satisfied that shall then be remaining and not herein disposed and to their heirs.

"Fifth: It is not intended herein to interfere with my wife's personal dower."

The due probate of this will is denied and this becomes a question for decision.

Using the language of appellant's counsel:

"The residuary devisee, Elizabeth Asher, wife of Arthur P. Asher, had three children, one of whom died in early infancy, and two who were living at the time of their grand-father's death, namely, Thomas Asher and Rachel Asher.

"Thomas Asher survived his father A. P. Asher and died, unmarried and without issue, leaving his mother Elizabeth and his sister Rachel surviving. Elizabeth Asher died October 12th, 1912. Rachel Asher married Haywood Cook, by whom she had three children, Effie, Woody and Haywood Cook, who are the plaintiffs in this suit."

Learned counsel for appellant further outlines his claim thus:

"Defendant claims under Sarah Asher, the widow of Martin Asher, on the theory that she took the homestead in fee, and under A. P Asher, the son of Martin Asher, if the widow took a life...