Stowe v. Stowe

• Citation: 41 S.W. 951,140 Mo. 594
• Parties: Stowe, Appellant, v. Stowe et al
• Decision Date: 06 July 1897
• Court: United States State Supreme Court of Missouri

41 S.W. 951

140 Mo. 594

Stowe, Appellant, v. Stowe et al

Supreme Court of Missouri, Second Division

July 6, 1897

Appeal from Jackson Circuit Court.

Affirmed.

Charles H. Nearing for appellant.

(1) This is not a suit to set aside the probate of the will of Asa H. Stowe, deceased, but to recover from defendants the property obtained by their unlawful act. (2) The probate of the will after five years becomes conclusive and can not be attacked upon any ground, but the wrongful act by which these defendants obtained the will and its probate is not barred and they are not shielded from attack by the statute that controls the probate of the will. Kerr on Fraud and Mistake p. 354; Alden v. Gregory, 2 Eden's Rep. 280; Allfrey v. Allfrey, 1 M. & G. Ch. R. 87; Pickery v. Stamford, 2 Ves. Jr. 272; Sherwood v Sutton, 5 Mo. 154. (3) When a party obtains property by fraud a court of equity will decree him trustee for the rightful owner of the same. Gaines v. Chew, 2 How. (U.S.) 649; Mictrand v. Girod, 4 How. (U.S.) 503; Carp v. Canal Co., 35 Ohio St. 317. (4) This suit is not against the property but the person. (5) In case of fraud the statute does not begin to run until the fraud is discovered. Lackland v. Smith, 5 Mo.App. 153; Hunter v. Hunter, 50 Mo. 445; Buren v. Buren, 79 Mo. 542.

Ess & Georgen for respondents.

(1) Wills exist by statute law only. They are controlled by the statutes. The question of will or no will must be determined in the statute will contest. No suit in equity can be maintained to set aside any will for fraud or otherwise. Garland v. Smith, 127 Mo. 583; Swain v. Gilbert et al., 3 Mo. 347; Lyne v. Marcus, 1 Mo. 410. (2) The judgment of the probate court is valid until reversed, annulled or set aside as provided by law in a statute will contest. Dilworth v. Rice, 48 Mo. 124; Banks v. Banks, 65 Mo. 432; Milton Duty's Will, 27 Mo 43. (3) In such a case a court of equity will not interfere, for it has no jurisdiction to do so. Case of Broderick's Will, 21 Wallace, 503; Simmons v. Saul, 138 U.S. 439. (4) The statute of limitations of this State embraces all civil actions. Rogers v. Brown, 61 Mo. 187; Rogers v. Brown, 61 Mo. 187; Hughes v. Littrell, 75 Mo. 573; Funkhouser v. Lay, 78 Mo. 458.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This was a judgment for defendants upon demurrer to the petition by the circuit court of Jackson county. Plaintiff declined to plead further and appealed. The petition is as follows:

"Now comes the above named plaintiff and for second amended petition states that he is the only son of Asa H. Stowe, deceased, and was born May 13th, 1859. That plaintiff was at all times hereinafter set out, and still is, a resident of the State of Vermont. That shortly after his birth his mother died, and after the death of his mother and some time about the year 1868, his father married the defendant Fannie R. Stowe, and from such marriage defendant Amarylis Stowe-Cook was born. That plaintiff's father died on or about the 11th day of October, 1876, and left surviving his only heirs this plaintiff, the defendant Amarylis Stowe-Cook, and his widow, the defendant Fannie B. Stowe. That at the time of the death of said Asa Stowe he was the owner of the following described property situated in Jackson county, Mo., to wit: All of lots 6, 7, 8, block 4, McDaniel's addition to Kansas City, Mo.; also an undivided one half of lots 1, 2, 3 and 6, Chatanoff & Stowe's subdivision of lots 1 and 3, block 3, Ranson & Hopkin's addition to Kansas City, Mo. That at the time of the death of said Asa H. Stowe the title to lots six, seven and eight, block four, McDaniel's addition to Kansas City, Mo., was in one L. S. Stowe, the brother of said Asa H. Stowe, but that said L. S. Stowe had no interest of any nature whatsoever nor claimed any interest in said property, but the same belonged to said Asa H. Stowe and the said L. S. Stowe at or about the time of the death of said Asa H. Stowe, or within a few days thereafter, gave a quitclaim deed of said property to defendant Fannie R. Stowe and Amarylis Stowe-Cook. That at the time of the death of said Asa H. Stowe the title to lot one, two, three, four, five, six, Chatanoff and Stowe's subdivision of lots one and three, block three, Ranson and Hopkin's addition, was in defendant Fannie R. Stowe, but that said Fannie R. Stowe was not the owner of the same, nor had any interest therein, but in truth and in fact said property belonged to said Asa H. Stowe.

"Plaintiff further states that the said defendant, Fannie R. Stowe, for the purpose of defrauding this plaintiff, who was at the time an infant under the age of 21 years, out of his right, share and inheritance and his portion of his father's estate and acquiring the same to herself and her child, Amarylis Stowe-Cook, at about the time of the death of said Asa H. Stowe and after he had lost consciousness of what was transpiring and was unable to exercise any volition or express a wish to make any disposition of his property, well knowing that the said Asa H. Stowe was incapable of disposing of his property, wrongfully and willfully caused a mark to be made to an instrument purporting to be the will of said Asa H. Stowe as the mark and signature of said Asa H. Stowe, well knowing that said instrument was not the will of said Asa H. Stowe and that he gave no assent to his mark or signature being placed thereto. Plaintiff further states that such instrument purporting to be the will of said Asa H. Stowe, purported to give the defendant Fannie R. Stowe and Amarylis Stowe-Cook all of the property of said Asa H. Stowe except the sum of $ 10, which was given to plaintiff. Plaintiff further states that defendant Fannie R. Stowe, for the purpose of further carrying out her plans and designs of defrauding this plaintiff of the property aforesaid, a few days after the death of the said Asa H. Stowe, to wit, on or about the -- day of October, 1876, presented such pretended will to the clerk of the probate court for probate as the last will and testament of said Asa H. Stowe, and that thereafter, to wit, on the -- day of October, 1876, said probate court, relying upon the truth of said parties that said will was the last will and testament of said Asa H. Stowe, admitted the will to probate, and by reason of the same the said defendant Fannie R. Stowe and Amarylis Stowe-Cook became possessed of the property herein first above described, and have at all times retained possession of the same and have retained the rents and profits arising therefrom. That by reason of the will the said defendants became the trustees for and in behalf of the plaintiff for an undivided one third of the above described property and the rents arising therefrom. Plaintiff states that all the above facts were known to defendant Amarylis Stowe-Cook.

"Plaintiff further states that he was ignorant of the facts and frauds relative to said will until it was too late to contest the same and did not learn of them until the year 1892, and that as soon as he learned of said fraud he instituted an investigation to ascertain the truth of the case. Plaintiff further states that defendant Cook is the husband of the defendant Amarylis Stowe-Cook; that in equity and good conscience plaintiff is entitled to an undivided one third of all the above described property, and also one third of all the rents and profits received by said defendants from said property since said day of October, 1876; that he has no remedy at law.

"Wherefore plaintiff prays that the court decree that defendants be declared trustees for plaintiff for an undivided one-third interest of the above described property and that the title to the same be adjudged and decreed as vested in the plaintiff, and that defendants be ordered and adjudged to account to plaintiff for an undivided one third of all the profits and rents received from said property. That an accounting be ordered to ascertain the amount of such rents and profits and that the amount so ascertained to be due plaintiff be declared a lien upon defendants' interest in said property and judgment rendered therefor and for costs herein expended and for such other and further remedies as may be equitable and just."

As the demurrer presents the defense in full, it is also subjoined.

Defendants demur because:

"First. The court had no jurisdiction to set aside the probate of said will of Asa H. Stowe, deceased, for fraud or otherwise nor has this court jurisdiction to hold the defendants or any of them, trustee or otherwise, by contract or for fraud or otherwise, nor can the land or any of it, nor can the rents and profits or any part thereof be held or adjudged by this court to belong to the plaintiff as trust property or otherwise.

"Second. The second amended petition does not state facts sufficient to constitute a cause of action.

"Third. The second amended petition shows plaintiff has no title to subject-matter of the suit, either at law or equity, either to the land or any part thereof, nor to the rents or profits or any part thereof, nor to any personal liability of these defendants or either of them or any of them, because the plaintiff's title to the real estate became vested in these defendants by their possession continuous from November, 1876, they claiming to own the same, no suit for possession, and no suit was begun to contest said will until the filing of this suit, and from the facts set up in the second amended petition plaintiff's title was divested by the statute of limitation (of ten years) out of him and vested in these defendants, and said will of Asa H. Stowe having been probated in 1876 by the facts stated in said second amended petition is now incontestable either for the purpose of...