Stone v. Cook
| Decision Date | 10 February 1904 |
| Citation | 78 S.W. 801,179 Mo. 534 |
| Parties | STONE, Appellant, v. COOK et al |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
Geo Robertson for appellant.
(1) Plaintiff is not barred from contesting the will after the lapse of a period of five years, for the reason that she is a married woman. Sec. 4624, R. S. 1899; Linville v Greer, 165 Mo. 380; Rosenberger v. Mallerson, 92 Mo.App. 27. Section 4622 confers the right to contest and section 4624 limits this time to five years, except as to married women, giving them until the disability of coverture is removed. Hughes v. Burriss, 85 Mo. 660. (2) Estoppel is an affirmative defense and must be specially pleaded, and can not be made by demurrer. McClannahan v Payne, 86 Mo.App. 284; Sanders v. Chartrand, 159 Mo. 382; Chance v. Jennings, 159 Mo. 544; Casler v. Gray, 159 Mo. 588; Kansas Moline Plow Co. v. Wayland, 81 Mo.App. 305; Cadematori v. Gauger, 160 Mo. 352; Hammerslough v. Cheatam, 84 Mo. 13; Bray v. Marshall, 75 Mo. 327; State ex rel. v. Branch, 151 Mo. 622. (3) The amount of the estate involved in the will was $ 12,000. Plaintiff's share under the law would have been $ 4,000. She accepted under the will $ 1,100, slightly more than one-fourth of her share under the law. Her conduct does not constitute estoppel. Before an act can constitute estoppel it must be some act by which another is induced to believe something and must act upon this belief to his prejudice. Had the plaintiff made the will, or induced or brought about the will, then it might be claimed that, as between her and the other heirs after there had been a distribution of the property under it, she is estopped from contesting the will. But to accept her share under the will, being a lesser amount than she was entitled to under the law were the will broken, does not mislead or induce another into any action to his prejudice. 11 Am. and Eng. Ency. of Law (2 Ed.), pp. 387, 388. "Estoppel in pais may be defined to be a right arising from acts, admissions or conduct, which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged." There can be no estoppel as against plaintiff unless it be shown that defendants have incurred some liability or have been induced to do something to their prejudice in consequence of the plaintiff's conduct. Jones v. McPhillips, 82 Ala. 116; Stevens v. Demett, 51 N.H. 333; Brown v. Bourne, 30 N.Y. 541; DeBerry v. Wheeler, 128 Mo. 84; Smith v. Roach, 59 Mo.App. 115; Bales v. Perry, 51 Mo. 449; Noble v. Blount, 77 Mo. 235; Blodgett v. Perry, 97 Mo. 263; State ex rel. v. Branch, supra. There is nothing stated in the petition from which it appears that the plaintiff, by accepting only a part of which was coming to her, misled or prejudiced any defendant. Where a widow has accepted all the provisions of a will her right of renunciation remains for the period of twelve months. Bretz v. Matney, 60 Mo. 444; Burgess v. Bowles, 99 Mo. 543; Spratt v. Lawson, 75 S.W. 642.
Fry & Rodgers and E. C. Kennan for respondents.
(1) Plaintiff's cause of action is and rightfully should be barred by the special five-year limitation statute (Secs. 4622 and 4624, R. S. 1899). This special statute limiting the time in which wills may be contested and providing the manner of making such contest was enacted long prior to the Married Woman's Act of 1889, and ever since the enactment of the last mentioned law in 1889, there can be no question but what this plaintiff had a right to sue and be sued, as the will was probated in March, 1896, and at that date this plaintiff was under no disability, as the Married Woman's Act had removed the disability of coverture long before. The interest of plaintiff in the estate of her father is separate estate, and the trend of all legislation as well as the decisions of our courts, in these later days, is to give married women largely increased powers, especially over their separate property, and require of them in return conformity to the usual and ordinary rules of legal procedure, and it will be observed that in this case the cause of action accrued in 1896 to the plaintiff, after the enactment of the act removing her disability, while in the cases of Throckmorton v. Pence, 121 Mo. 50, and of Lindell Real Estate Co. v. Lindell, 142 Mo. 61, the cause of action in both instances accrued prior to the enactment of the Married Woman's Act of 1889. The weight of authority is in favor of the rule that the Married Woman's Act enabling married women to sue as to their separate property, repeal in so far the statutory disability, and that the general married women's acts, by implication, repeal altogether the disabling clause of the statute, and cause it (the statute of limitation) to run against married women as it would if they were single. 13 Am. and Eng. Ency. Law, 739 (d); Geisen v. Heidrich, 104 Ill. 537; Brown v. Cousens, 51 Me. 306; Dunham v. Sage, 52 N.Y. 230. (2) A demurrer is a "pleading," and as the demurrer was the only pleading filed by the defendants in the court below, the defense of election or estoppel is sufficiently pleaded therein. Burton v. Martin, 54 Mo.App. 134. (3) The plaintiff had her choice to accept the provisions of the will or institute a proceeding to contest it, and if successful, then to take under the law, and as the petition shows on its face that she accepted all the beneficial provisions made for her in the will, she is bound by her acceptance. 2 Herman on Estoppel and Res Judicata, sec. 1028, p. 1156; Fox v. Windes, 127 Mo. 502. This doctrine of election is but an extension of the law of equitable estoppel. 1 Herman on Estoppel and Res Judicata, p. 11; Fox v. Windes, 127 Mo. 502. The plaintiff's interest in the estate of her father concerns her separate property, and she can be estopped as much as any other property owner, although a married woman. Blair v. Railroad, 89 Mo. 383; Bowen v. Bowen, 90 Mo. 184; Gilliland v. Gilliland, 96 Mo. 522; Henry v. Sneed, 99 Mo. 425; Leete v. Bank, 115 Mo. 184; Stone v. Bank, 81 Mo.App. 9.
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, one hundred and sixty 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, eighty acres of land. By the third item of the will the testator bequeathed to his daughter, Mary Stone, the plaintiff, a legacy of five hundred dollars, 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 five hundred dollars 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 store-house and lot in Laddonia be sold, and out of the proceeds the sum of fifty dollars 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 granddaughters the sum of thirty-five dollars 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 one hundred dollars, 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 ninety-one 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 five hundred dollars, bequeathed to her by the third item of the will, and also received six hundred dollars 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 four thousand dollars, 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...
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