Stewart v. Shelton

• Citation: 201 S.W.2d 395,356 Mo. 258
• Decision Date: 21 April 1947
• Docket Number: 39928
• Parties: W. L. Stewart, J. B. Stewart, Mary Elizabeth Perkins, Nora Hedgpeth, Ralph E. Stewart, Verna McDaniel, and Earl Mikeselli v. Wm. T. Shelton, Wallace B. Shelton, Theodore Shelton, LaMoine Shelton, Gary Shelton, a minor, Jessie Shelton, Gracie Stewart and Josie Stewart, Appellants
• Court: United States State Supreme Court of Missouri

201 S.W.2d 395

356 Mo. 258

W. L. Stewart, J. B. Stewart, Mary Elizabeth Perkins, Nora Hedgpeth, Ralph E. Stewart, Verna McDaniel, and Earl Mikeselli v. Wm. T. Shelton, Wallace B. Shelton, Theodore Shelton, LaMoine Shelton, Gary Shelton, a minor, Jessie Shelton, Gracie Stewart and Josie Stewart, Appellants

No. 39928

Supreme Court of Missouri

April 21, 1947

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed.

Thomas H. Gideon and R. A. Moneyham for appellants.

(1) Plaintiffs' amended petition fails to allege in detail affirmatively any facts which show plaintiffs to be without remedy at law. The petition is fatally defective and does not give the trial court jurisdiction. State ex rel. Barnett School Dist. v. Barton, 104 S.W.2d 284. (2) The mere allegation in a petition that the plaintiffs have no remedy at law is a mere statement of a conclusion of law and is not in and of itself a sufficient allegation of inadequacy of a remedy at law. Thomasson v. City of Malden, 118 S.W.2d 1059; Schuster v. Meyers, 148 Mo. 422; State ex rel. v. Horner, 187 S.W.2d 976. (3) Failure affirmatively to plead facts showing lack of adequate and complete remedy at law constitutes fatal omission of necessarily jurisdictional facts. Benton County v Morgan, 163 Mo. 661; Palmer v. Marshall, 24 S.W.2d 229; State ex rel. v. Horner, 187 S.W.2d 976. (4) Such allegation of fact in a petition is jurisdictional and their absence may be taken advantage of by the adversary party at any time or place or at any stage of the proceedings or the court of its own motion without the suggestion of counsel or the point being raised may raise the objection. Fenton v. Thompson, 352 Mo. 199. (5) Plaintiffs' amended petition is fatally defective for the further reasons to-wit: (a) It does not set forth clear and definite terms of a contract between J. T. Stewart and Josie Stewart to make an irrevocable will. (b) The specific terms of the contract to make an irrevocable will are not specifically set forth in sufficient detail. (c) No good and valuable consideration was pleaded to support any contract or supposed contract between the Stewarts. (d) The terms of the contract must appear to be fair and just from the petition. Plemmons v Pemberton, 139 S.W.2d 910; Wanger v. Marr, 257 Mo. 482. (6) Plaintiffs' amended petition does not contain any statement of (specific) facts which show plaintiffs are entitled to the relief prayed for, or for any other relief. Devault v. Truman, 194 S.W.2d 29; Palmer v. Marshall, 24 S.W.2d 229; Hutchinson v. Thompson, 343 Mo. 884; Same case, 123 S.W.2d 142; Sec. 36, Gen. Code Civil Procedure, Laws 1943, page 353; Civil Code, Sec. 847.36; Plemmons v. Pemberton, 139 S.W.2d 910. (7) If the terms of the contract (pleaded) are doubtful or uncertain a Court of Equity will not decree specific performance. Wendover v. Wendover, 121 Mo. 273; Terry v. Michalak, 319 Mo. 290; Same case 3 S.W.2d 701; Baldwin v. Corcoran, 7 S.W.2d 967; Olliver v. Johnson, 238 Mo. 359. (8) On a proper pleading alleging a contract to make an irrevocable will and setting out its terms specifically and alleging a breath thereof by the surviving testator the remedy of beneficiaries would be an action at law by suit for breach of the contract. Palmer v. Marshall, 24 S.W.2d 229; Plemmons v. Pemberton, 139 S.W.2d l.c. 914; 69 C.J., p. 1303, sec. 2729; Green v. Whaley, 271 Mo. 636. (9) The property involved in this case was owned by the testators by the entirety. They had unity of interest, unity of title, unity of time and unity of possession and was not subject to testamentary disposition. Ahmann v. Kemper, 119 S.W.2d 256; Schwind v. O'Halloran, 142 S.W.2d 55. (10) The judgment must be based on and supported by and must follow the petition. The prayer of the petition generally is no part of the petition. It is an elementary rule that courts of equity are powerless to administer redress beyond the legitimate scope of the pleadings of the parties. Newham v. Kenton, 79 Mo. 382; Whiting v. Land & Sheep Co., 265 Mo. l.c. 382; Scott v. Luehrman, 278 Mo. l.c. 648. (11) Parties must recover according to the allegation and proof or admissions. Roden v. Helm, 192 Mo. 71; Black v. Early, 208 Mo. 281; In re Opel Estate v. Surren, 352 Mo. 592. (12) Wills are revocable in the absence of a contract between the testators not to revoke or where it clearly appears from the language of the will itself that it is irrevocable. 68 C.J. 223; Plemmons v. Pemberton, 139 S.W.2d 910. (13) A will executed by two parties disposing of their separate property to the survivor for life is revocable by either at his option. In re Cawley's estate, 136 Pa. 628; 10 L.R.A. 93; 20 A. 567; Sappingfield v. King, 49 Ore. 102, 8 L.R.A. (N.S.) 1066. (14) If a husband and wife own an interest in realty in entireties the husband cannot devise his interest therein if he died before his wife. Ashbaugh v. Ashbaugh, 273 Mo. 353; Ashbaugh v. Ashbaugh, 350 Mo. 1246; Gray v. Perpetual Trustee Company A.C. 391, 60 A.L.R. 613; Wanger v. Marr, 257 Mo. 482; Overruling Bower v. Daniel (on this point.) (15) In addition to the pleading of the contract as required by law it is necessary that the contract as pleaded must be proved by evidence that is clear, cogent and convincing and such as to establish an agreement definite and certain presumption will not take the place of proof. Wagner v. Marr, 257 Mo. 482; In re Opel Estate v. Surien, 352 Mo. 592. (16) Pleading over and going to trial on the merits does not waive objection in the motion to dismiss plaintiffs' petition for failure to state a cause of action. Sec. 66, Civil Code, Laws 1943, p. 375; Devault v. Truman, 194 S.W.2d 29; Fenton v. Thompson, 352 Mo. 199. (17) Supreme Court can in equity cases make its own finding of facts and decide what decree to make. Ver Standing v. St. Louis Union Trust Co., 129 S.W.2d 905; Kingston v. Mitchell, 117 S.W.2d 226; Peikert v. Repple, 114 S.W.2d 999; Stinson v. Bank of Queen City, 101 S.W.2d 537.

Arch A. Johnson for respondents.

(1) The allegations contained in plaintiffs' amended petition as to the contract between J.T. and Josie Stewart to make the will, and the terms of the contract set forth in the will which was copied in full in plaintiffs' petition were sufficient. But even if the pleading was defective, defendants filed no motion for more definite statement or bill of particulars, and the issue was tried with the consent of the parties without objection to the evidence on the ground that it was not within the issues made by the pleadings; and the court found from the undisputed evidence that a contract was made by the parties, and that the terms of such contract were embodied in the will. Failure to amend the petition did not affect the result of the trial of such issues. Secs. 63, 82, General Code for Civil Procedure. (2) Only in a court of equity could the respondents obtain an adequate remedy. Lime & Cement Co. v. Citizens' Bank, 158 Mo. 272; Ellenburg v. Edward K. Love Realty Co., 59 S.W.2d 625; Hanson v. Neal, 215 Mo. 256; Farmers & Traders Bank v. Kindrick, 108 S.W.2d 62; C. Bewes, Inc. v. Buster, 108 S.W.2d 66; State ex rel. v. Smith, 135 S.W.2d 355. (3) The proof of the contract to make the joint will, as found by the court from all the evidence in the case, including the will itself, met every requirement of the law as laid down in every case involving the question decided by the courts of this and all other states. Plemmons v. Pemberton, 139 S.W.2d 910; Plemmons v. Pemberton, 117 S.W.2d 392; In re Opels Estate, 179 S.W.2d 1; Bower v. Daniel, 198 Mo. 289; Wagner v. Marr, 257 Mo. 482; Carmichael v. Carmichael, 72 Mich. 1; Wilson v. Gordon, 73 S.C. 64; 40 Cyc., p. 2118; Campbell v. Dunkleberger, 153 N.W. 1.c. 56; Cummings v. Sherman, 132 P.2d 998; Maurer v. Johansson, 274 N.W. 99; Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265. (4) The joint will was irrevocable after the death of J. T. Stewart, and the remaindermen could maintain this suit during the life of the last survivor. Plemmons v. Pemberton, 139 S.W.2d 910; Campbell v. Dunkleberger, 153 N.W. 1 c. 56; Child v. Smith, 282 N.W. 316; Seat v. Seat, 135 S.W.2d 751; Cummings v. Sherman, 132 P.2d 998; Popejoy v. Peters, 121 S.W.2d 538; Curry v. Cotton, 191 N.E. 307; Frazier v. Patterson, 90 N.E. 216; Deseuner v. Rondell, 74 A. 703; In re Kelley's Estate, 4 N.Y.S. (2d) 675; Union Natl. Bank in Kansas City v. Bunker, 114 S.W.2d 193. (5) The court had jurisdiction under the statute to render a declaratory judgment. Sec. 1127, R.S. 1939; State ex rel. v. Clay County Bank, 145 S.W.2d 152; Tem v. Tem, 191 S.W.2d 629; Lyter v. Vestal, 196 S.W.2d 769. (6) A husband and wife may by joint will made in pursuance of a contract between them devise property owned by them by the entireties. Seat v. Seat, 135 S.W.2d 751; Badger Lumber Co. v. Pugsley, 61 S.W.2d 425; Childs v. Childs, 199 N.E. 383; Finnegan v. Humes, 299 N.Y.S. 501. (7) Wills are revocable but contracts to make wills are irrevocable. Janetta v. Janetta, 285 N.W. 619; Plemmons v. Pemberton, 139 S.W.2d 910; And authorities supra.

OPINION

Conkling, J.

Suit in equity and for a declaratory judgment decreeing the joint will of J. T. Stewart and Josie Stewart, his wife, executed August 6, 1943, to have been irrevocable by Josie Stewart from and after the death of J. T. Stewart, and praying a decree setting aside four certain deeds to the lands devised by the joint will, which deeds were executed by Josie Stewart after the death of J. T. Stewart. The decree of the court below declared that upon the death of J. T. Stewart the joint will became and was the irrevocable last will of the widow, Josie Stewart, and set aside the four deeds in question. Defendants appealed.

Study of the transcript of the evidence discloses that the ...