Paris v. Erisman

• Decision Date: 07 December 1927
• Docket Number: No. 26337.,26337.
• Citation: 300 S.W. 487
• Parties: PARIS et al. v. ERISMAN et al.
• Court: Missouri Supreme Court

300 S.W. 487

PARIS et al. v. ERISMAN et al.

No. 26337.

Supreme Court of Missouri, Division No. 1.

December 7, 1927.

Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.

Action in partition by Minnie M. Paris and others against George C. Erisman and others. From an adverse judgment, the plaintiffs appeal. Affirmed.

Clarence A. Barnes, of Mexico, Mo., for appellants.

Fry & Hollingsworth, of Mexico, Mo., for respondents.

GRAVES, P. J.

There is but little difference between the statement of the case made by appellants and that made by respondents. However, counsel for respondents do not accept the statement of appellants, but make a full statement of their own. In this situation we shall state the case for the court.

The action is one in partition, and involves some 77 acres of land in Audrain county. This land belonged to Daniel R. Erisman in his lifetime. As to this tract of land the petition charges that Daniel R. Erisman died intestate, although it is admitted that as to all other property he died testate. The crux of the case is the will and codicil thereto, as made by the said Daniel R. Erisman. Its construction determines whether or not there is a tract of land to partition. In this statement pleadings and proof may be, to some extent, commingled. Daniel R. Erisman died September 7, 1922, leaving as his sole heirs at law plaintiff, Minnie M. Paris (a daughter), and defendants George C. Erisman (a son), Martha Jane Spencer (a daughter), and Rebecca J. Erisman (his widow).

In November, 1892, Daniel R. Erisman executed his will, by the terms of which he gave to each of his three children the sum of $5. Items 4 and 5 of the will are important, and we quote them, as follows:

"Item four. I further give and devise to my beloved wife Rebecca J. Erisman all and every my lands tenements hereditaments with the appurtenances whereof I am seized in fee situate lying and being in the county of Audrain and state of Missouri, consisting of the north half of the southwest quarter of section twenty-five (25) township fifty-one (51) range eight (8) and the north half of the southeast quarter of section twenty-six (26) township fifty-one (51) range eight (8) also five acres of timber land situated on Loutre creek.

"To have and to hold the same to her the said Rebecca J. Erisman forever.

"Item five. And lastly as to all the rest residue and remainder of my personal estate whatsoever, after the payment of all my just debts and bequests herein. I give and bequeath the same to my said beloved wife Rebecca J. Erisman whom I hereby name and appoint my sole executrix of this my last will and testament, and I hereby direct and so order that she act as such without bond, hereby revoking all former wills by me made."

On January 30th, 1894, he executed in due form a codicil, which reads:

"Codicil.

"Whereas, I, Daniel R. Erisman, of the county of Audrain and state of Missouri, have by my last will and testament in writing duly executed bearing date of Nov. 14, 1892, given, bequeathed and devised to my wife Rebecca J. Erisman all my lands, tenements and hereditaments with appurtenances whereof I am seized, described as follows:

"The north half of the southwest quarter of section twenty-five and the north half of the southeast quarter of section twenty-six, all in township fifty-one, range eight, Audrain county, Missouri, also 5 acres of timber land on Loutre creek.

"Now, I, the said Daniel R. Erisman do make this codicil to my said will, and I do hereby revoke the said legacy concerning the north half of the southeast quarter of section twenty-six, township fifty-one, range eight, having sold the same to my son George C. Erisman and I do hereby ratify and confirm my said will in everything except where the same is hereby revoked and altered as aforesaid.

                                       "Daniel R. Erisman."
                

The will and codicil were duly probated. Prior to the codicil, the said Daniel R. Erisman and Rebecca J. Erisman, his wife, had made a warranty deed to the son George C. Erisman, conveying to him the following described tract"of land, viz:

"Begin at the southeast corner of the north half (½) of the southeast fourth of section 26, township 51 range 8 west of the 5th P. M. and run west on the south line of said north half of said southeast fourth of said section 26, 7 chains, to a stone, run thence north 4 chains and 30 links (4.30 chs.) to a stone, run thence east 7 chains to a stone on the east line of said section 26, run thence south on the section line 4 chains and 30 links (4.30 chs.) to an old stone which is the point of beginning and containing 3 acres and being in the southeast corner of the north half of southeast fourth of section 26 township 51 range 8 as shown by survey thereof made January 4, 1894."

The foregoing warranty deed was executed on January 12, 1894, and is the usual form. We omitted to speak of the answers filed. The petition sets out the will and codicil in full, but avers that, by reason of the exclusion of land made by the codicil, there was land to be divided between the three children, supra, subject to the dower interest of their mother, Rebecca J. Erisman. By separate answer, Rebecca J. Erisman (the widow) says:

(1) That she denies each and every allegation of the petition; and (2) "for another and further answer this defendant states that she is the sole and absolute owner of the lands described in plaintiff's petition, and that she is in possession of same as such owner. She denies that the plaintiffs and the other defendants herein have any interest in said lands. Having fully answered, she asks for judgment for costs."

George C. Erisman and wife, by their answer, deny that plaintiffs have any interest in the land involved, and aver that such land is "the individual absolute property of Rebecca J. Erisman." No answer was filed by Martha Jane Spencer and her husband. Reply was a general denial. Judgment by default went as to the Spencers. As to them, as well as the parties participating in the trial, the judgment reads:

"The court, having heard the pleadings in the evidence offered by plaintiffs and defendants, found for the defendants. The court finds that the land described in the plaintiffs' petition belongs to defendant Rebecca J. Erisman; and that the plaintiffs and the other defendants have no right, title, or interest in said lands, and the court finds that the plaintiffs are not entitled to partition of said lands, and the court adjudges the costs in the case against the plaintiffs, and orders that execution be issued therefor."

From such judgment the plaintiffs have appealed. Details of the further evidence will be given in the course of the opinion. As suggested, the real crux of the case is the construction of the will and codicil, supra.

I. We indicated, in our statement, supra, that the real crux of this case lies in the meaning of the will and codicil of the deceased, Daniel R. Erisman. The atmosphere should be cleared a little concerning some evidence offered and admitted in behalf of respondent Rebecca J. Erisman. The deposition of George C. Erisman, a son and legatee under the will, was taken in California. His testimony covers at least two interesting questions, i. e.: (1) He testifies that his father sold him no land, except the 3 acres described in the deed to him, and had at no time contracted to or agreed to sell him any other land whatsoever; and (2) he testifies as to who drew the will and codicil, and as to the scrivener's business and occupation. It is claimed that George C. Erisman is an incompetent witness for any purpose. This, as it is claimed, by virtue of two sections of our statutes, i. e., sections 527 and 5410, R. S. 1919.

We must keep in view that this is a partition suit, in which it becomes necessary to construe a will in order to determine whether or not there is any real estate for partition. Section 527, R. S. 1919:

"If no person shall appear within the time aforesaid, then probate or rejection of such will shall be binding, saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed."

This section by the reference made therein contemplates a consideration of section 525 of R. S. 1919. Section 525 provides:

"If any person interested in the probate of any will shall appear within one year after the date of the probate or rejection thereof, and, by petition to the circuit court of the county, contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up whether the writing produced be the will of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court."

We set out both in full for the purpose of showing that neither of them have any reference whatever to the qualifications or disqualifications of witnesses. These sections neither qualify nor disqualify any witness, and, so far as section 527 is concerned, it must be ruled that, upon that question, it is wholly inapplicable. Section 5410, R. S. 1919, is the statute which disqualifies a party from testifying, "in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, * * * the other party to such contract * * * shall not be admitted to testify * * * in his own favor or in favor of any party to the action claiming under him. * * * We are all familiar with this statute. There is no cause of action in issue and on trial wherein either Erisman (the deceased father, or the son George C.) was a party to any contract. This is a partition suit. In the course of its trial the meaning of the will of Daniel R. Erisman, deceased, becomes material. To show its meaning extraneous evidence as to the surroundings at the making of the will and codicil was offered, and admitted, as above indicated. George C. Erisman was one of the parties giving such evidence. The statute has no reference...