Rodney v. M'Laughlin

• Decision Date: 26 November 1888
• Citation: 97 Mo. 426,9 S.W. 726
• Parties: RODNEY v. McLAUGHLIN et al.
• Court: Missouri Supreme Court

9 S.W. 726

97 Mo. 426

RODNEY v. McLAUGHLIN et al.

Supreme Court of Missouri.

November 26, 1888.

1. EVIDENCE — DOCUMENTARY — RECORD OF WILL IN ANOTHER COUNTY.

Under Rev. St. Mo. 1879, §§ 3988-3990, providing for the record of wills by the clerk of the probate court, and that such record of a will, duly proved, or an exemplification thereof, shall be received in evidence, such exemplification is admissible in evidence in another county in which lands devised by it are situated, but in the recorder's office of which it is not recorded, though section 3991 requires it to be recorded there also.

2. TRIAL — OBJECTIONS TO EVIDENCE — WHO MAY OBJECT.

One not deriving title through testator cannot object that the will is not recorded in the county where the lands are situated.

3. TENANCY IN COMMON AND JOINT TENANCY — ADVERSE HOLDING — EVIDENCE.

Payment of rents by the collector to one tenant in common is not evidence that the latter holds adversely to his co-tenant.

4. APPEAL — REVIEW — HARMLESS ERROR.

The erroneous admission of testimony of facts established by other evidence, and not controverted, is not cause for reversal.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Ejectment by Charles Rodney against Ellen McLaughlin et al. Judgment for plaintiff, and defendants appeal.

C. V. Scott, for appellants. Wilson Cramer, for respondent.

BLACK, J.

This is an action of ejectment for the undivided half of a parcel of land in St. Louis, having a front of 30 feet on Eighth street. Baum, the landlord of the other defendants, was made a defendant on his own motion. Both parties trace title to James I. Reily, who died testate in the year 1865. He devised the property in suit to his daughter, May Jane Reily. The will was duly probated in St. Louis. May Jane Reily died in April, 1870, intestate. She left, as her only heirs, her mother, Elizabeth C. Reily, and brother, James E. Reily, widow and son of James I. Reily, deceased, who therefore inherited the property in equal parts. James E. Reily died in December, 1870, leaving a wife, Julia A. Reily, and one infant child, named May Jane. He left a will, but it makes no disposition of his interest in this property; so that it descended to his daughter, May Jane Reily. Thereafter, and in April, 1871, this daughter died, leaving as her sole heir her mother, Julia A. Reily. Julia A. married the plaintiff, Charles E. Rodney, in 1873, and died in October, 1876, testate. By her will she made her husband residuary devisee, and under this clause of the will he acquired the one-half interest in the property in dispute. Elizabeth C. Reily died testate in March, 1879, and her interest in this property became subject to the residuary clause in her will, by which she devised the remainder of her estate to the heirs at law of her deceased husband, James I. Reily; but at that date his children and their descendants were all dead, so that this one-half interest went to his collateral kindred. These collateral heirs brought a suit for partition in 1880, to which the plaintiff was not a party, which resulted in a sale of the property to Stortz in 1881. He conveyed to defendant Baum. From this history of the case it will be seen that plaintiff has a perfect title to the undivided one-half of the land in suit; and it remains to dispose of the objections made to the proofs by which that title is shown. As the will of James E. Reily has no residuary clause, and does not mention this property, it is of no importance in this case. As to this property he died intestate; so that the objections made to that will need not be considered, for the title is the same whether the will is in or out of the case.

The will of Julia A. Rodney, the wife of plaintiff, and formerly the wife of James E. Reily, was duly probated in Cape Girardeau county, where she died, owning a mansion house, on the 20th October, 1876. This will was not recorded in the city of St. Louis until after the commencement of this suit in 1885; and for this reason the defendant insists that the copy of the will, and probate thereof, should have been excluded, and not received as evidence. This objection is founded upon section 3991, Rev. St. 1879, which provides: "In all cases where lands are devised by last will, a copy of such will shall be recorded in the recorder's office in the county where the land is situated; and, if lands are situated in different counties, then a copy of such will shall be recorded in the recorder's office of each county within six months after probate." This section does not say what shall be the effect of a failure to record the will in the recorder's office. The statute declares that all wills shall be recorded by the clerk...