Schee v. Boone

• Decision Date: 28 August 1922
• Docket Number: No. 22688.,22688.
• Citation: Schee v. Boone, 295 Mo. 212, 243 S.W. 882 (Mo. 1922)
• Parties: SCHEE v. BOONE et al.
• Court: Missouri Supreme Court

243 S.W. 882

295 Mo. 212

SCHEE v.BOONE et al.

No. 22688.

Supreme Court of Missouri, Division No. 2.

August 28, 1922.

Appeal from Circuit Court, Lewis County; James A. Cooley, Judge.Suit by Frank E. Schee against Irma D. Boone and others.Judgment for defendants, and plaintiff appeals.Affirmed.

D. E. Eby and Ben E. Hulse, both of Hannibal, for appellant.

Sloan & Sloan, of Keosauqua, Iowa, and Hollingsworth & Blood, of Keokuk, Iowa, for respondentEdna M. Schee.

WALKER, J.

This is a suit to procure a judicial construction, of the will of John Mantle, who died testate in Clark county in 1906, seized of about 1,865 acres of land in that county, and to determine the rights and interests of the parties to the same.Upon a hearing before the court, there was a finding and judgment for the defendants, from which the plaintiff appeals.

The testator left surviving him his widow, who died before the institution of this suit and two daughters, both married and now living, namely, Loretta B. Schee and Elizabeth J. Harr, now Elizabeth J. Harr Smith.The plaintiff is the son of Loretta B. Schee.She had another son, John C. Schee, who died before this suit was brought, leaving a widow, Elizabeth Schee, and an infant daughter, Edna M. Schee, one of the partiesdefendant herein.The testator's will contemplated a disposition of all of his real estate.The portions of the will in controversy are as follows:

"Second.I give and devise to my wife Emma Mantle, the life use of my real estate.Also it is my will that she and my two daughters Elizabeth Harr and Loretta 3.Schee shall inherit my personal estate according to the laws of inheritance in force in this state.

"Third.I give and bequeath to my said daughter Loretta 3.Schee and to the heirs of her body at her death, to the exclusion of any right and interest of her husband therein, the following described real estate, situate in Clark county, Missouri (here follows a description of the land by government subdivisions, being the same designated in this proceeding as the "Loretta B. Schee lands"), "making a total acreage to my said daughter and to her bodily heirs, as stated, of 811 acres, more or less, and which I estimate as one-half in value of all my real estate.This bequest being subject to my wife Emma Mantle's life use of said property."

A subsequent paragraph (the fourth) makes a like disposition to testator's widow for life, remainder in his other daughter, Elizabeth J. Harr, now Elizabeth Harr Smith, to the balance of his lands.These lands are not involved in this action, but only those de" scribed as the Loretta B. Schee lands.

The fifth paragraph of the will limits the foregoing bequests as follows:

"Fifth.If any of the bodily heirs of my two daughters named should die without issue, after the death of their mother, it is my will that the surviving husband or wife shall have no interest in the estate inherited by said descendant from his or her mother, but that said share of the heir dying shall vest in his brothers and sisters who may be living, or who may have died leaving issue."

The plaintiff and his brotherJohn C. Schee, now deceased, constituted the apparent heirs of Loretta B. Schee in 1908, and in October of that year they made quitclaim deeds to each other of portions of said lands; these deeds being made, as plaintiff stated, for the purpose of dividing the land, as they thought they both had the same interest under the Will.During the year 1908 and prior thereto, these two sons had rental arrangements with each other with reference to thin land, and the plaintiff paid his brother rent " for portions thereof up to and including 1908, and when he paid the rent plaintiff stated that he knew that the only interest his brotherJohn C. Schee had was what he took under his grandfather Mantle's will.The plaintiff further testified that down to 1917, he and his brother and mother, all acted on the assumption that the will was valid and that all had an interest under the will, and that was the reason these deeds were made back and forth.

On May 1, 1914, plaintiff procured a quitclaim deed from his brotherJohn C. Schee for the portion that he had previously deeded to his brother and in which deed the brother, his wife, and his mother and father joined.Thereafter, June 2, 1919, the plaintiff procured from his mother, Loretta B. Schee, and her husband, a warranty deed to the entire tract known as the "Loretta B. Schee lands" which had been devised to her in the Mantle will.A few months thereafter plaintiff instituted this action to have his title declared absolute; his brotherJohn C. Schee having died in the meantime, June 7, 1917, leaving, as his sole heir, his infant daughter Edna M. Schee, who is defending herein by her guardian ad litem.While her mother is joined as a defendant, the minor Edna is the only person interested in the lands other than the plaintiff; her interest being that of an apparent heir of Loretta B. Schee, as the holder of a contingent interest under the will of the testator.

Plaintiff seeks to have this will declared void as creating a perpetuity, and avers that Loretta B. Schee took by inheritance a one-half interest in the land of the testator, and had acquired by quitclaim deed from Elizabeth J. Harr Smith the entire title to the "Loretta B. Schee lands," and that it had been transferred to plaintiff.

The defendantEdna M. Schee defends the action on two grounds:

First, that the plaintiff is prevented by estoppel, waiver, and acquiescence in the validity of the will and by laches from disputing the validity of the same; and.

Second, that the will itself must stand as a valid disposition of the "Loretta B. Schee lands" under the statutes of Missouri.The lower court overruled the first defense but sustained the second.

I.On the question of waiver, estoppel, and lathes, the trial court found against the defendants and in favor of the plaintiff, who is the sole appellant.It is only the assignments of error made by the appellant that will be considered.While the right of appeal is given to any party to a suit within the terms of the statute(section 1469, R. S. 1919) who claims to have been aggrieved, the procedural requirements of the latter must be complied with to entitle the party to a review of such grievances.The nature of the action is immaterial so far as a compliance with these requirements is concerned, provided it be civil in its nature.These exceptions may be noted in appeals in equity cases growing out of the nature of these actions, viz.: The court will consider the entire testimony for the purpose of determining what is relevant and competent evidence; instructions fill no office in an equity case and their giving or refusal will not be regarded as error.These exceptions and the consequent latitude of a review following an observance of same is what is meant when it is said that, under our practice, "equity cases are practically tried de novo in the appellate courts."Williams v. Husky, 192 Mo. loc. cit. 549, 90 S. W. loc. cit. 430.It is not meant, however, by this ruling that any of the requirements necessary to the perfecting of an appeal under the statute are to be disregarded; and it is as necessary in an equity as in a law case to entitle an appellant to a review that they be complied with.Respondent's claim as to errors in the rulings of the trial court in this case, therefore, are not for our consideration.German Evan. etc. v. Schrieber, 277 Mo. 113, 209 S. W. 914;Summers v. Cordell(Mo. Sup.)187 S. W. 5;Ross v. First Presby. Church, 272 Mo. 96, 197 S. W. 561.

The only exception to this rule, not applicable here, is where a respondent questions the trial court's ruling in sustaining a judgment and not to effect its modification in any respect.St. Charles Saving Bank v. Denker, 275 Mo. loc. cit. 621, 205 S. W. 208 and cases.

The fact that the plaintiff for more than a decade recognized the terms of the will, as manifested by his joining in conveyances of the land in conformity with the bequests therein made, might well be adduced as persuasive reasoning in support of the conclusion that such a showing of waiver and estoppel on the part of the plaintiff constituted nothing more than proof to sustain the judgment rendered in defendant's favor, and consequently came within the exception above noted.The terms of the will, however, `render such a holding unnecessary, as they are sufficiently free from ambiguity to enable its meaning to be determined without resort to other sources of interpretation.Peak v. Peak(Mo. Sup.)195 S. W. 003;La Vaulx v. McDonald(Mo. Sup.)190 S. W. 601;Wooley v. Hays, 285 Mo. 566, 226 S. W. 842, 16 A. L. R. 1.

II.The mater of vital moment, therefore, is the construction of the will.The cardinal rule governing such construction, which cannot be departed from without violating the fundamental law concerning the testamentary disposition of property, is to determine as near as may be from the words used the intent and meaning of the testator.In addition to the unambiguous meaning of the language employed, we may take into consideration the circumstances surrounding the testator at the time the will was executed, including his relations to the beneficiaries named.Cook v. Higgins(Mo. Sup.)235 S. W. 809;Bernero v. St. Louis Tr. Co.(Mo. Sup.)230 S. W. 620;Guthrie v. Crews, 286 Mo. loc. cit. 448, 229 S. W. 182;Gibson v. Gibson, 280 Mo. 519, 219 S. W. 561;Deacon v. Trust Co., 271 Mo. 669, 197 S. W. 261.

This well-established rule has been given legislative recognition in the following statute:

"All courts and others concerned in the execution a last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters before them."Section 555, R. S. 1919.

The will, therefore, should be read as near as may be from the testator's standpoint, giving effect, if possible, to every part...