Stone v. Cook

• Decision Date: 10 February 1904
• Citation: 78 S.W. 801,179 Mo. 534
• Parties: STONE v. COOK et al.
• Court: Missouri Supreme Court

78 S.W. 801

179 Mo. 534

STONE v. COOK et al.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

WILLS—CONTEST — RIGHT OF ACTION — ESTOPPEL BY ACCEPTANCE OF LEGACIES—RETURN OF AMOUNT RECEIVED—NECESSITY—PLEADING—DEFENSE OF ESTOPPEL—RAISING BY DEMURRER.

1. The acceptance of legacies under a protest that the will was invalid, and because the legatee would be entitled under the law to more of the estate, estops the legatee to contest, in the absence of any claim that the acceptance was induced by fraud or deception.

2. An allegation in the petition of a legatee contesting a will that she was ready and willing to pay into court the amount received, or to have it deducted from her share of the estate, if the will be set aside, is insufficient to bring her within the rule entitling her to contest, for that requires that it shall be actually paid into court on or before filing suit.

3. On the faith of plaintiff's acceptance of benefits under a will which she sought to contest, the major portion of which arose from the residue of the estate, the executors paid special legacies to other persons, and she stood by and saw them do so. She thereupon attempted a contest on an offer to pay into court only the amount received by her. Held that, notwithstanding the statutory limitation had not expired, the executors would suffer by a revocation, under such circumstances, and the proceedings therefore fell within the rule denying the right to contest in case of unreasonable delay.

4. The defense of estoppel may be raised by demurrer where the essential facts appear in the petition.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Mary Stone against E. C. Cook and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Geo. Robertson, for appellant. Fry & Rodgers and E. C. Kennan, for respondents.

MARSHALL, J.

This is an action under the statute to contest the will of William T. Cook. The plaintiff is a daughter of the testator, and the defendants are the other children, grandchildren, daughter-in-law, and executors of the deceased. The will was executed on December 17, 1895. Shortly thereafter the testator died, and the will was probated in March, 1896. By the first item of the will, the testator bequeathed to his grandson E. C. Cook 160 acres of land to enable him to support and care for his invalid mother. By the second item of the will, the testator bequeathed to his daughter Martha Corner, 80 acres of land. By the third item of the will, the testator bequeathed to his daughter Mary Stone, the plaintiff, a legacy of $500, provided that sum could be realized from the sale of his interest in certain land, which was subject to a mortgage for $1,750 and interest, and, at all events, he directed that, if $500 could not be so realized, she should have the excess over the amount necessary to pay the mortgage. By the fourth item of the will, the testator directed that his storehouse and lot in Laddonia be sold, and out of the proceeds the sum of $50 a year, for six years, be paid to the trustees of the Methodist Church, to be used by them to pay the pastor's salary. By the fifth item of the will, the testator bequeathed to two grand-daughters the sum of $35 each, to buy a watch, as a token of affection of their departed grandmother. By the sixth item, the testator set apart the sum of $100, the interest on which he directed to be used to keep in repair the graves of the testator and his family. By the seventh item, the testator bequeathed the residue of his estate to his daughter Mary Stone, the plaintiff, Martha Corner, the defendant, and his daughter-in-law, the widow of his deceased son, William R. Cook. After reciting the relationship of the parties litigant, and after setting out the will in full, wherein the testator declares himself to be 91 years old and of sound mind, the petition charges that at the time the will was made the testator was old, feeble of body, and was of unsound mind and incapable of making a will, and then charges that the will was procured by the undue influence of the grandson E. C. Cook, and of the daughter-in-law, and of a witness to the will. The petition then states that the will was admitted to probate in Audrain county at the March term, 1896, of the probate court. The petition then alleges that the plaintiff received from the executors the special legacy of $500 bequeathed to her by the third item of the will, and also received $600 under the seventh item of the will, being one-third of the residuum of the estate, but says she received said amounts under protest, insisting that she received said sums only because, under the law, she was entitled to one-third of the estate, which she says would amount to $4,000; and she avers that she is ready and willing (she omits to say able) to pay said sums so received into court, or to have them deducted from her share of the estate, if the will is set aside. The prayer of the petition is that issue be joined as to whether or not the will is the will of William T. Cook. The suit was made returnable to the September term, 1901, of the Audrain circuit court. The defendants demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action, in this: First, because it shows on its face that it was not instituted within five years after the will was probated in common form, and hence is barred by limitations; and, second, because the petition shows on its face that the plaintiff accepted the benefits accruing to her under the will, and is therefore estopped to deny or contest the validity of the will. The circuit court sustained the demurrer, the plaintiff refused to plead further, judgment was entered for the defendants, and the plaintiff appealed.

The pivotal question here involved is whether the plaintiff, having received the legacies bequeathed to her by the will, can be heard to contest the validity of the will, upon bringing into court the sums she has received under the will. The fact that she received the legacies under protest, or under a claim that they constituted only a part of what she was entitled to by law, outside of the will, is wholly immaterial, and avails nothing. Pollman v. St. Louis, 145 Mo. 551, 47 S. W. 563; McCormick v. Transit Railroad Co., 154 Mo. 191, 55 S. W. 252; McCormick v. St. Louis, 166 Mo., loc. cit. 345, 346, 65 S. W. 1038. Woerner's Am. Law of Adm'n, vol. 1 (2d Ed.) marg. p. 500, says: "But since a person cannot hold under a will, and also against it, one who accepts a beneficial interest under a will thereby bars himself from setting up a claim which will prevent its full operation at law or in equity; and such person will not, therefore, be allowed to contest a will unless he return the legacy received." The general rule laid down in the text is supported by the following cases cited in the notes to the text: Smart v. Easley, 5 J. J. Marsh. 215; Herbert v. Wren, 7 Cranch, 370, 3 L. Ed. 374; Preston v. Jones, 9 Pa. 456; Smith v. Guild, 34 Me. 443; Hyde v. Baldwin, 17 Pick. 303; Benedict v. Montgomery, 7 Watts & S. 238, 42 Am. Dec. 230; Smith v. Smith, 14 Gray, 532; Van Duyne v. Van Duyne, 14 N. J. Eq. 49; and Fulton v. Moore, 25 Pa. 468. To the same effect is Syme v. Badger, 92 N. C. 706. In all these cases it is held, without qualification, that one who accepts a benefit under a will or deed thereby elects to take under the instrument, and is estopped thereafter from contesting the validity of the instrument. Nothing is said in any of these cases about the right of such person to bring into court the benefits so received, and thereupon to contest the instrument. However, in Holt v. Rice, 54 N. H., loc. cit. 402, 20 Am. Rep. 138, while the general rule is announced and affirmed, it is held that one who has received a benefit under a will may pay the amount so received into court, and thereafter contest the will, though it is said, "Under circumstances of delay, connected with other circumstances, it has been held to preclude the party from contesting the will afterwards," and it was allowed in that case because there had been no great delay. In Miller's Appeal, 159 Pa., loc. cit. 575, the contesting legatee was required to pay the money received into court before he was permitted to proceed; and it was held that where the acts set up are equivocal, or were done in ignorance of the rights of the doer, or where they consist merely of the receipt of a pecuniary legacy, and the money is returned before the appellant proceeds beyond the entry of his appeal [which is like our proceedings to contest the will], they will not amount to an estoppel." In the Matter of Soule, 1 Con. Sur., loc. cit. 54, 3 N. Y. Supp. 259, the sufficiency of a mere offer to refund, contained in a petition to contest a will, is discussed, and held to be insufficient, and that nothing short of an actual payment into court of the benefits received before the filing of the petition will entitle a beneficiary under a will, who has received benefits thereunder, to repudiate and contest the will.

In the Matter of Peaslee, 73 Hun, loc. cit. 114, 25 N. Y. Supp. 940, the rule is so admirably stated as to justify the following excerpt therefrom: "It is a well-settled proposition in law, as well as in equity, that he who accepts and retains a benefit under an instrument, whether deed, will, or other writing, is held to have adopted the whole, and to have renounced every right inconsistent with it. The rule has found expression in many actions, and with widely differing facts. A few of them only will be referred to. In Chipman v. Montgomery, 63 N. Y. 234, which was an action...