Smith v. Estes

• Decision Date: 31 October 1880
• Citation: 72 Mo. 310
• Parties: SMITH v. ESTES, Appellant.
• Court: Missouri Supreme Court

72 Mo. 310

SMITH

v.ESTES, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Camden Circuit Court.--HON. G. W. MILLER, Judge.

REVERSED.

John W. Moore and L. C. Krauthoff for appellant

Nixon & Wallace for respondents.

SHERWOOD, C. J.

The basis of this proceeding for specific performance was the alleged will of Jno. G. Estes, in substance, as follows: “Know all men, That I, John G. Estes, * * do ordain and make this, my last will and testament, as follows; 1st. That my funeral expenses and all just debts be paid as soon as the same can be done, my debts being few and small. 2nd. That to my beloved wife, Lucy Estes, I give the full management of all my estate, both real and personal, to sell and dispose of any and all my property, to collect debts and receipt for the same, to sue and be sued, in fact, to do everything that I could do were I alive, for the benefit of herself and my lawful heirs; that she shall have full control only during her natural life or widowhood. 3rd. That my children, each and every one of them, shall have an equal portion of property or money, or both, when they become of age, or as near as the same can be done, and that whatever they receive be charged to them, so that at the death or marriage of my wife, the property may be distributed equally among them or their heirs, and the property so charged against them, or money, shall be counted in as so much of their parts of my estate, so that each one of my children, namely: Mary G. Smith, formerly Mary G. Estes, Lucy D. Estes, Andrew Estes, James D. Estes, Susannah Estes, Zilpha Estes and Penelope Estes, shall have an equal portion of my property in the final distribution thereof. The property or money given to my children when they shall have become of age, that is, the amounts thereof, is left to the discretion of my wife, Lucy Estes. To Mary G. Smith, formerly Mary G. Estes, I have given sundry kinds of property, amounting to $229, and to Lucy Estes, my child, sundry kinds of property, amounting to $120 worth, which will be found charged and most of the items named; and whatever any of my children, at the time they become of age, receive, shall likewise be charged.”

The defendant was the donee of the powers conferred by the will, and as such had taken out letters cum testamento annexo. The petition charges that she had contracted with plaintiffs that she would convey the lands in controversy to them if they “would move on to and make their home upon the said lands, and improve the same,” but the answer denies this The alleged will was improperly admitted in evidence. The probate of a will is a judicial act, and if the clerk of the county court, or the judge of such court, takes proof of a will in vacation, such proof is taken “subject to the confirmation or rejection by the court;” 2 Wag. Stat., 1366, § 13; R. S. 1879, § 3972; and unless such subsequent confirmation occurs, and is appropriately evidenced by an order to that offect, there is no sufficient evidence that the will has been duly admitted to probate. Creasy v. Alverson, 43 Mo. 13; Jourden v. Meier, 31 Mo. 40; Charlton v. Brown, 49 Mo. 353.

II.

Passing, however, from this preliminary question to the heart of the cause, did the defendant, under the facts detailed in evidence, and offered to be proven, derive such authority from the instrument heretofore quoted, as to warrant her in making, or at all events, the court in decreeing specific execution of the contract whereon the plaintiffs rely? We are not of that opinion, and for these reasons: As...