State ex rel. Pemberton v. Shain
| Decision Date | 07 February 1939 |
| Docket Number | No. 36206.,36206. |
| Citation | 124 S.W.2d 1087 |
| Parties | STATE OF MISSOURI at the relation of TINEY PEMBERTON ET AL., Relators, v. HOPKINS B. SHAIN ET AL. |
| Court | Missouri Supreme Court |
Irwin, Bushman & Buchanan, W.S. Stillwell and H.M. Atwell for respondents.
This is an original proceeding in certiorari to review for jurisdiction the record in the case of Willie E. Plemmons et al. v. Tiney Pemberton et al., decided by the respondent Judges of the Kansas City Court of Appeals and reported in 117 S.W. (2d) 392.
The petition filed in the circuit court alleged that two brothers, Crockett M. Wall and George P. Wall in 1916 entered into an agreement to make a joint will under which the surviving brother would have a life interest in the estate of the other brother, and upon the death of the survivor the plaintiffs would receive all the property of both brothers; that in pursuance of such agreement two wills, identical except for names, were simultaneously executed as mutual and reciprocal wills each being made in consideration of the will made by the other; that Crockett M. Wall died and under his will George P. Wall received a life interest in all his brother's property, the property being subject to his disposal; that in 1936 George P. Wall made mother and different will, naming the defendants as recipients of all his property including real property which is specifically devised, and thereafter he died; that his will made in 1936 was duly admitted to probate. The petition asserted that because of the agreement with his brother, George P. Wall had no power or authority to make the latter will and that therefore the defendants have no right to the property which they are claiming under it. The prayer of the petition asked the court to bar the defendants from setting up or claiming any right or title in the property, including real property, of which George P. Wall died seized and further asked that the title to all such property be vested in the plaintiffs.
After a trial in the circuit court the case was appealed to the Kansas City Court of Appeals where it was heard and decided and the opinion of the court promulgated. Then application for certiorari was made to this court on the ground that the Kansas City Court of Appeals had no jurisdiction of the case because title to real estate is involved and our writ issued.
[1] If title to real estate is involved, then this court has exclusive jurisdiction of this suit on appeal under Article VI, Section 12 of the Constitution of Missouri. Such being the case no act of the parties either by agreement or estoppel can confer jurisdiction on the Court of Appeals. [Klingelhoefer v. Smith, 171 Mo. 455, 71 S.W. 1008.] [2] Certiorari is the proper remedy to confine an appellate court within the limits of its constitutional and legal authority.
[3] At the outset of our determination of the jurisdiction of this case we are met by the contention of respondents that our search for jurisdictional factors is limited to the opinion only of the Kansas City Court of Appeals. It is the rule that in a proceeding in certiorari where our writ is sought on the ground that a decision of one of the Courts of Appeals conflicts with our latest previous ruling,...
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Switzer v. Switzer
...returned by the jury. Title to real estate passed under the will. Appellate jurisdiction is in this court. State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087. Contestants had the burden of producing substantial evidence of the alleged testamentary incapacity or undue influence up......
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Gillmore v. Atwell
...is involved and we have jurisdiction of the appeal. Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035, 1036; State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087, 1088. In his opening statement counsel for proponents stated that testatrix and her brothers and sisters, after the deat......
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McQuate v. White
...V.A.M.S., which defines our jurisdiction. Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771; State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087. See also Love v. White, Mo.App., 150 S.W.2d 494; Id., 348 Mo. 640, 154 S.W.2d 'Moreover, the petition herein prayed that p......
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Youngblood's Estate, In re
...may not be conferred by waiver, acquiescence or even express consent (State ex rel. Pemberton v. Shain, 344 Mo. (banc) 15, 17, 124 S.W.2d 1087, 1088(1); Higgins v. Smith, 346 Mo. (banc) 1044, 1047, 144 S.W.2d 149, 151(4); Mack v. Mack, Mo., 281 S.W.2d 872, 873(1)); and, in the discharge of ......