Thomas v. McGhee

• Decision Date: 03 July 1928
• Docket Number: 26765
• Citation: 8 S.W.2d 71,320 Mo. 519
• Parties: Gene Thomas et al., Appellants, v. Charles Pendleton McGhee et al
• Court: Missouri Supreme Court

8 S.W.2d 71

320 Mo. 519

Gene Thomas et al., Appellants, v. Charles Pendleton McGhee et al

No. 26765

Supreme Court of Missouri

July 3, 1928

Appeal from Randolph Circuit Court; Hon. Allen W. Walker Judge.

Reversed and remanded (with directions).

M D. Campbell, John M. Campbell and Higbee &amp Mills for appellants.

(1) The will is not attested by two witnesses, and is, therefore, absolutely void so far as any real property located in Missouri is concerned. The trial court held the will was invalid. Secs. 507, 253, R. S. 1919; White v. Greenway, 263 S.W. 104; Bell v. Smith, 271 Mo. 619. (2) The court erred in sustaining the motion for new trial on the grounds indicated, because defendant McGhee by his answer made no claim under Sec. 320, R. S. 1919, but claimed to own the entire interest under the will. Said defendant by his answer had limited his claim to the will. The petition asserted he was entitled to an undivided one-third interest. (3) Ethel Thomas McGhee, the common source of title, died August 12, 1923, which was after the Acts of 1921 had become operative. Estates by curtesy had been abolished and the surviving husband was then entitled to the same interest in the lands owned by his deceased wife, as a surviving wife had in the lands owned by a deceased husband, subject to the same rights of election and to the same limitations. Laws 1921, p. 119, sec. 1. (4) Defendant McGhee having failed to file an election to take an undivided one-half interest of the land, the court erred in granting the motion for new trial on the theory that he was entitled to such an interest. Laws 1921, p. 119, sec. 1; Sec. 325, R. S. 1919; Klocke v. Klocke, 276 Mo. 572; Lynch v. Jones, 247 S.W. 125. (5) The will being invalid, defendant McGhee was required to elect as to whether he would take under Sec. 320, R. S. 1919, rather than under Section 315, and failing to elect, he would take under Section 315 and the court erred in granting a new trial. Authorities under point 4.

J. N. Wattenbarger and Hunter & Chamier for respondent.

(1) The widower has no curtesy, if no child capable of inheriting is born of the marriage. Richter v. Bohnsach, 144 Mo. 516; Donovon v. Griffith, 215 Mo. 149; Register v. Elder, 231 Mo. 321; 17 C. J. 416. (2) By the Act of 1921 curtesy was abolished; and in lieu of curtesy, the act gave the widower the same share in the real estate of the deceased wife that under the law the widow had in the real estate of her deceased husband. This act created an estate in the widower, when under the common law he was entitled to curtesy, and which was to be a substitute for curtesy; therefore, this act has no application here, because McGhee having no curtesy, took nothing under the Act of 1921. Laws 1921, p. 119. (3) The words "with the same rights of election and the same limitations thereto" in the Act of 1921 have reference to a case where the widower by reason of having curtesy is entitled to take in lieu thereof under Sec. 315, R. S. 1919 (widow's dower section), and must therefore elect whether he will take under Section 315 or Section 320. Laws 1921, p. 119. (4) Since the widower in this case was not entitled to take under Section 315, he could not be required to make an election between it and Section 320. Where he has two rights, he must elect, but where he does not have dower under Section 315, the law elects to give him one-half absolutely under Section 320. Klocke v. Klocke, 276 Mo. 572; Seibel v. Seibel, 273 S.W. 725. (5) The court on an appeal from an order granting a new trial, will consider not only the sufficiency of the ground assigned by the trial court, but also any other ground insisted upon by the respondent as sustaining the order made; and if the ground assigned by the trial court is not sufficient, but the others insisted upon by respondent are, the order granting the new trial will be affirmed. Smart v. Kansas City, 208 Mo. 183; St. Charles Savings Bank v. Denker, 275 Mo. 607; Higgins v. Higgins, 243 Mo. 164; Emmons v. Quade, 176 Mo. 29; Haven v. Railroad, 155 Mo. 216; Thompson v. Railroad, 140 Mo. 125; Randle v. Railroad, 65 Mo. 334. (6) The will of Ethel Thomas McGhee, a resident of California, was duly executed according to the laws of California, and duly probated in said State; and such will, together with the order admitting the same to probate, certified according to the Act of Congress, having been filed in the Probate Court of Adair County, the county where the land in question was located, it became the duty of the Adair County Probate Court under the law to admit the same to probate. Sec. 540, R. S. 1919. (7) And such judgment of probate was a judicial act, and has the full force and effect of a judgment of any other court of competent jurisdiction, and stands as a judgment binding upon all the world, until set aside by a suit to contest the will under the statute. It was a conclusive adjudication that the instrument was her valid and unrevoked will, and such judgment cannot be attacked collaterally by appellants, Cohen v. Herbert, 205 Mo. 537; Stevens v. Oliver, 200 Mo. 492; Jourden v. Meier, 31 Mo. 40; Dilworth v. Rice, 48 Mo. 124; In re Broderick's Will, 21 Wall. (U.S.) 503; Simmons v. Saul, 138 U.S. 439; Stowe v. Stowe, 140 Mo. 594; State ex rel. v. McQuillin, 246 Mo. 694; Stevens v. Larwill, 110 Mo.App. 140; Byrne v. Byrne, 289 Mo. 126; Johnson v. Beazley, 65 Mo. 250; Banks v. Banks, 65 Mo. 432. (8) A foreign will is required by our law to be contested and annulled within the same time and in same manner as will executed and proved in Missouri. Sec. 541, R. S. 1919. (9) Appellants' remedy was a suit to contest, brought within one year from March 10, 1924, the date the will was probated in Missouri. Sec. 525, R. S. 1919. (10) Having failed to bring their suit to contest within the year, the will became binding on appellants. Sec. 527, R. S. 1919; Cohen v. Herbert, 205 Mo. 556. (11) The attack and contest, in a partition suit or a suit to quiet title, of a will duly probated, cannot be maintained, because it is a collateral attack upon the judgment of the probate court. Cohen v. Herbert, 205 Mo. 556.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

This is a suit to partition and determine title to nine lots in Orchard Place Addition to the city of Kirksville in Adair County. The real estate belonged to Ethel Thomas McGhee, who died, childless and testate, a resident of California, in August, 1923. The conflicting interests arrayed in the suit are her heirs -- her mother and five brothers and sisters -- on the one side, and her widower Charles Pendleton McGhee on the other. The heirs have appealed from the order of the Circuit Court of Randolph County (to which the venue was changed) granting the widower a new trial.

The decedent's will devised her entire estate to the respondent. It was holographic and there were no attesting witnesses. Under the law of California it was valid, and consequently was admitted to probate in that state in due course, notwithstanding there were no subscribing witnesses. A copy of the will and proof, certified under the act of Congress, was then filed in the Probate Court of Adair County, Missouri, and the will was admitted to probate there under Section 540, Revised Statutes 1919, in March, 1924. This suit was filed in November, 1924.

The appellants' petition alleges the respondent owns a one-third interest in the lots for his lifetime. Their theory was and is:

(1) That the will was void as to the real estate involved, because not executed in accordance with the laws of Missouri (Secs. 253 and 537, R. S. 1919), in that there were no subscribing witnesses, as required by Section 507, Revised Statutes 1919;

(2) That, there being no valid will (a) the rights of the respondent were governed by Laws 1921, page 119, abolishing curtesy and giving a widower the same share in the real estate of his deceased wife that the law allows a widow in the real estate of her deceased husband, with the same rights of election and the same limitations thereto; (b) that this curtesy statute repealed by implication Section 320, Revised Statutes 1919, giving a widower a half interest in the estate of his wife who dies without lineal descendants; (c) and that by virtue of the curtesy statute the respondent was entitled only to a common-law dower interest of one-third for life in his wife's land under Section 315, Revised Statutes 1919, since he did not elect in accordance with Section 323, Revised Statutes 1919, and Laws 1921, page 111, to take a one-half interest therein under Section 321, Revised Statutes 1919, enacted for the benefit of widows of husbands who die without lineal descendants.

As to the first of these contentions the respondent took the position that the probating of the will in Adair County under Section 540, Revised Statutes 1919, was a final judgment, which made the will operative there for all purposes whether executed in accordance with the laws of this State or not; that the only road thereafter left open to the appellants was a direct attack by a will contest within one year under Sections 541 and 525, Revised Statutes 1919; and that the instant partition and quiet-title suit is not a proceeding of that character, but is a collateral attack, which the law does not allow. And so, the respondent maintains he is entitled under the will to the whole title to the real estate involved.

Secondly the respondent denies that Section 320, supra, was repealed by the statute abolishing curtesy, supra -- this on the theory that the latter applies only to widowers who would, in its absence, be entitled to curtesy, which was not the situation in this case, since no children were born of respondent's marriage to the testatrix. Hence, it is res...