Stevens v. Oliver

• Citation: 98 S.W. 492,200 Mo. 492
• Parties: STEVENS et al., Appellants, v. OLIVER et al
• Decision Date: 22 December 1906
• Court: Missouri Supreme Court

98 S.W. 492

200 Mo. 492

STEVENS et al., Appellants, v. OLIVER et al

Supreme Court of Missouri, Division Two

December 22, 1906

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Johnson & Lucas and Frank Titus for appellants.

(1) The document admitted in evidence purports to be certified by R Brinkerhoff, Jr., as judge and ex-officio clerk of the probate court of Richland county, Ohio, and the signature of said R. Brinkerhoff, Jr., ex-officio clerk is certified by the identical R. Brinkerhoff, Jr., in the alleged capacity of sole and presiding judge of such probate court. The absence of the original will was not accounted for. Such alleged copy was inadmissible in not being authenticated as required by law, and was further inadmissible in this case by reason of the testimony previously introduced of said R. Brinkerhoff Jr., contained in his deposition, showing the illegality of the proof of such will as made in said probate court under the laws of Ohio. (a) Said purported will of John C. Larwill was neither executed nor proved in accordance with the laws of the State of Ohio. Bates' Ohio Stats. (3 Ed.), secs 5916, 5917, 5926. These facts disclosing clearly that no judicial examination was had in open court as required by the Ohio statute; that no testimony was in fact taken regarding the execution of the will; no reduction thereof to writing; no notice given to the next of kin living in Ohio, of the purported probate, without doubt rendered such alleged certified copy inadmissible. Randolph v. Bayne, 44 Cal. 366; Allison v. Allison, 46 Ill 61; Smith v. Rich, 37 Mich. 549; Carmalt v. Post, 8 Watts (Pa.) 400; Summers v. McKim, 12 Serg. & R. (Pa.) 405; In re Eldridge, 82 N.Y. 170; Fisk v. Tank, 12 Wis. 306; Davis v. Upson, 209 Ill. 211; Floto v. Floto, 213 Ill. 438. That the testimony of this probate judge is proper and admissible, to contradict the alleged certificates purporting to come through him or from him, see Raum v. Ayermann, 2 Mo.App. 476; Holdridge v. Marsh, 30 Mo.App. 352; Eager v. Stover, 59 Mo. 87; Bradley v. Welch, 100 Mo. 258; Mays v. Pryce, 95 Mo. 603; Patterson v. Fagan, 38 Mo. 70; In re Jones' Will, 85 N.Y.S. 294. (b) It is contended by respondents that the alleged will and so-called certificates, as certified, are all competent evidence under the law regarding the authentication of judicial proceedings of the courts of other States; and the trial court upheld this view. Such contention is erroneous. Sec. 3135, R. S. 1899. The probating or lodging in a probate court of Ohio, of a will, is not a judicial proceeding such as is contemplated either under the act of Congress, or the Missouri statutes. In re Hathaway's Will, 4 Ohio St. 383; Barr v. Closterman, 2 C. C. (Ohio) 391; Clardy v. Richardson, 24 Mo. 295. In Missouri, the filing for probate of a purported will and the proceedings in that connection, are uniformly held to be ex parte and merely provisional, and in no respect conclusive. Benoist v. Murrin, 48 Mo. 48; Watson v. Alderson, 146 Mo. 344. While the act of Congress and our statute, in contingencies to which they apply, may permit placing in evidence, upon due proof, of court proceedings which are strictly judicial in character, yet if such are not "judicial proceedings," as in the case at bar, they are entitled to no consideration in the courts of this State. Gillett v. Camp, 23 Mo. 375; Cox v. Cox, 101 Mo. 168; Sneed v. Ewing, 28 Ky. 466; In re Nash's Will, 37 Misc. (N. Y.) 706; Budd v. Brooke, 3 Gill (Md.) 232; Olney v. Angell, 5 R. I. 198; Wonderly v. Lafayette County, 150 Mo. 644; Bank v. Willey, 195 U.S. 257; Lanig v. Gay, 78 P. 810; Robertson v. Pickerell, 109 U.S. 608. (c) The title to land, the mode of vesting the same, and the rules regulating proof as to title, are more peculiarly local than any other features of our government. In all such matters, and especially where the authority of a will is invoked, the unvarying rule is that the lex rei situs governs in every detail. Dupus v. Mayo, 11 Mo. 314; State v. Clark, 178 Mo. 20; McCormick v. Sullivant, 10 Wheat. 192; Kerr v. Moon, 9 Wheat. 565; Lucas v. Tucker, 17 Ind. 41; Ins. Co. v. Bank, 68 Ill. 348; Sneed v. Ewing, 28 Ky. 460; Nowler v. Coit, 1 Ohio 519; In re Crawford, 68 Ohio St. 58; Robertson v. Barbour, 6 Mon. 523. (2) The question requested to be submitted to the jury: "Is the title to the lands sought to be partitioned in this cause in the heirs of John C. Larwill?" was a proper one. Plaintiffs were entitled to a jury verdict on all issues in the case as demanded by them. Benoist v. Thomas, 121 Mo. 660; Gunn v. Thurston, 130 Mo. 339; Green v. Walker, 99 Mo. 73. (3) (a) The lands involved in this action are not devised. None of the lands owned by the alleged testator are mentioned. The statutory heirs therefore inherit. Gaines v. Carriker, 50 Mo. 564; Eneberg v. Carter, 98 Mo. 651; White v. Crawford, 87 Mo.App. 267; McQueen v. Lilly, 131 Mo. 16; Godfrey v. Wingert, 110 Ill.App. 563; Chamberlain v. Taylor, 105 N.Y. 185; Read v. Williams, 125 N.Y. 560; Desloge v. Tucker, 94 S.W. 286; McGowan's Estate, 190 Pa. St. 375; Bruckman's Estate, 195 Pa. St. 363; Minkler v. Simons, 172 Ill. 323; Lewis v. Harrower, 197 Ill. 315; Matthews v. Krisher, 59 Ohio St. 562; Bane v. Wick, 14 Ohio St. 506; Davis v. Davis's Executors, 62 Ohio St. 411; Crane v. Doty, 1 Ohio St. 279; Needles v. Needles, 7 Ohio St. 445; Coffman v. Coffman, 85 Ill. 459; Lawrence v. Smith, 163 Ill. 166; Ames v. Holmes, 190 Ill. 561; Jones v. Kelly, 72 N.Y.S. 24; Gallagher v. Crook, 132 N.Y. 338; Ford v. Ford, 70 wis. 48; Right & Mitchell v. Sidebottom, 2 Doug. K. B. 759; Schouler on Wills (2 Ed.), sec. 480; Tiedeman on Real Property (2 Ed.), secs. 319-321. (b) The statutory heirs to the lands of the decedent Larwill, made such by the law of Missouri, cannot be disinherited except by express and lawful devise of the lands to others. Farish v. Cook, 78 Mo. 218; Eneberg v. Carter, 98 Mo. 651; Hurst v. Von de Veld, 158 Mo. 239; McQueen v. Lilly, 131 Mo. 16; Matthews v. Krisher, 59 Ohio St. 562; Ames v. Holmes, 190 Ill. 561; Parsons v. Miller, 189 Ill. 107; Crane v. Doty, 1 Ohio St. 279; Chaunet v. Ives, 71 N.Y.S. 33; Henrique v. Yale University, 28 A.D. 361; Bruckman's Estate, 195 Pa. St. 363; Rupp v. Eberly, 79 Pa. St. 144; Bates v. Woodruff, 123 Ill. 205; Baxter v. Bradbury, 20 Me. 264; Gibson v. Seymour, 102 Ind. 488; Bourke v. Boone, 94 Md. 472; Zimmerman v. Hafer, 81 Md. 347; 3 Washburn, Real Prop. (3 Ed.), p. 17. (c) The title to the lands involved at once vested in his statutory heirs on the death of the alleged testator, there being no devise in trust to the executors nor any powers whatever conferred by the purported will upon them. Ford v. Ford, 70 Wis. 67; McHugh v. McCole, 97 Wis. 166; Nowler v. Coit, 1 Ohio 519; In re Crawford, 68 Ohio St. 58; Estate of Fair, 132 Cal. 552; Estate of Fair, 136 Cal. 79; Henderson v. Henderson, 113 N.Y. 1; Booth v. Baptist Church, 126 N.Y. 243; Brennon v. Winkler, 37 S.C. 457; Parsons v. Miller, 198 Ill. 107; Sadler v. Turner, 8 Vesey, Jr. 617; Maxwell v. Maxwell, 2 DeGex, McN. & G. 705. (d) As regards all lands owned by alleged testator, the purported will in evidence, in addition to its other defects, is void for uncertainty; and especially so as to the lands here involved. Willey v. Clark, 105 Wis. 52; Cope v. Cope, 45 Ohio St. 464; Armistead v. Armistead, 32 Ga. 646; Howe's Appeal, 126 Pa. St. 233; Moran v. Moran, 104 Iowa 216; Tilden v. Green, 130 N.Y. 29; Brennen v. Winkler, 37 S.C. 457; Miller v. Travers, 8 Bingh. 244; Jackson v. Craig, 20 L. J. Ch. 204; Mohun v. Mohun, 1 Swanston 201; Brown v. Quintard, 177 N.Y. 75; Scott v. Guernsey, 48 N.Y. 106; Kelley v. Kelley, 25 Pa. St. 460; Jones dem. Henry v. Hancock, 4 Dow. H. L. Cases 199.

Wash Adams, Chas. B. Adams and Gage, Ladd & Small for respondents.

(1) The will was properly probated in Ohio. 1st. Because Joseph H Larwill, the surviving brother, was the next of kin of the deceased, John C. Larwill, and he was not required to be notified because he did not live in Ohio. It is only if they reside in Ohio that the statute requires the next of kin to be notified. The widow was notified and, there being no next of kin residing in Ohio, the requirements of the statute as to notice were complied with. 2nd. But a failure to notify the next of kin does not render the judgment of probate void. It is a mere irregularity and in no event could be taken advantage of by anyone save Mrs. Ewing and Mrs. Jenner, whom plaintiffs claim are the next of kin intended, and they are defendants claiming under the will. Dickey v. Vaun, 81 Ala. 425. 3rd. These provisions of the Ohio statute are held to contemplate the ordinary probate of a will in common form which is ex parte without notice. Under the Ohio decisions, the requirement as to notice to the next of kin is therefore clearly directory and not jurisdictional. Hall v. Ashby, 9 Ohio 95; Bailey v. Bailey, 8 Ohio 239; In re Hathaway, 4 Ohio St. 383. These decisions also hold that the judgment of probate is a judicial act. 4th. Besides, the record of the Ohio probate court expressly recites and finds that the "widow and next of kin of said decedent had been duly notified of the filing, pendency, prayer, and place and time of hearing of said application" according to the previous order of this court, which order is also shown by the record. The statute does not require any particular form of notice, but simply leaves the time and manner of notice to the discretion of the probate court. There is no evidence that Mrs. Jenner and Mrs. Ewing were not notified in some manner of the proceedings. Mr. Jenner testified that no notice was served on his wife. This was mere hearsay and service was not necessary. There might have been a publication...