Watson v. Alderson

• Decision Date: 06 December 1898
• Citation: 146 Mo. 333,48 S.W. 478
• Parties: WATSON et al. v. ALDERSON et al.
• Court: Missouri Supreme Court

48 S.W. 478

146 Mo. 333

WATSON et al. v. ALDERSON et al.

Supreme Court of Missouri.

December 6, 1898.

WILLS — PROBATE — CONTESTS — INTERESTED PERSONS — JUDGMENT CREDITORS OF HEIR — NEXT OF KIN — MATTERS OF RIGHT.

1. A judgment creditor, with liens on all the real estate owned by the debtors, levied on and purchased all the interest of the debtors in the real estate of which the father of the debtors soon afterwards died seised. The will of the father disinherited said debtors. Held, that the judgment creditor is "interested in the probate" of the will, within Rev. St. 1889, § 8888, so as to have the right to contest its validity.

2. The children of the testator, as his next of kin, may contest the validity of the will, as of common right, whether or not the result of the contest will be prejudicial to their pecuniary interests, within Rev. St. 1889, § 8888, because the administration of the goods of the testator ought to be committed to them, if he in fact died intestate.

Marshall, Sherwood, and Williams, JJ., dissenting in part.

In banc. Appeal from circuit court, St. Charles county; E. M. Hughes, Judge.

Suit by Mary A. Watson and others against David P. Alderson and others to contest the will of Benjamin A. Alderson, deceased. From a judgment sustaining a demurrer to the amended petition, plaintiffs appeal. Reversed.

H. C. Lackland and C. W. Wilson, for appellants. T. F. McDearmon, W. C. Scarritt, Theo. Bruere & Son, W. F. McEntire, and Frank Hagerman, for respondents.

BRACE, J.

This is an appeal from a judgment of the circuit court of St. Charles county sustaining a demurrer to plaintiffs' amended petition. On or about the 5th day of May, 1895, Benjamin A. Alderson, late of said county, deceased, departed this life, leaving surviving him, as his only heirs at law, his children, the plaintiffs Fannie A. Durell, Anna M. Weems, and R. F. Alderson, and the defendants, David P. Alderson, Samuel B. Alderson, Bettie G. Watkins, William A. Alderson, and Mabel H. Alderson. Afterwards, on the 15th of May, 1895, an instrument in writing was duly admitted to probate in the probate court of St. Charles county, as the last will and testament of said deceased, as follows:

"Know all men by these presents that I, Benjamin A. Alderson, of the city and county of St. Charles and state of Missouri, declare the following to be my last will and testament: First. I desire that all my debts be paid as soon as possible. Second. I give and bequeath to my beloved wife, Mary L. Alderson, as her own absolute property, all my furniture, bedding, carpets, stoves, pictures, and kitchen utensils at my residence at the time of my death. I also give and bequeath to my said wife, for and during her natural life, my home place, being my residence, and the lots connected therewith, on 6th and Perry streets, in the city of St. Charles, in lieu of any dower or any interest my wife has or might have in any of my real and personal estate. I also give and bequeath to my said wife, Mary L. Alderson, for and during her natural life, annually, the sum of six hundred dollars ($600), so that my executors shall pay her at the end of every six months the sum of three hundred ($300) dollars. Third. All of my personal estate, except such as is herein bequeathed to my wife, shall go and belong, in equal parts, to my children Anna M. Weems, S. B. Alderson, Bettie G. Watkins, Fannie A. Durell, R. F. Alderson, Mabel H. Alderson, the wife of my son W. A. Alderson, and W. Elmira Alderson, the wife of my son D. P. Alderson, excepting the sum of one dollar to be given to each of my sons W. A. Alderson and D. P. Alderson. Fourth. My executors shall take charge of, rent out, and have exclusive control over my lands in the Point prairie, and also my lands in the Culde-Sac bottoms, below the city of St. Charles, and shall pay the above six hundred dollars annually out of the income thereof, to my said wife, Mary L. Alderson; and the balance of said income, less whatever my executors may think necessary to meet current expenses, shall each year be given to my said children equally, except my sons W. A. Alderson and D. P. Alderson, whose wives shall be entitled to receive and retain their shares, respectively, — each one-seventh. After the death of my wife all my real estate shall go to and be divided as follows: To Anna M. Weems, S. B. Alderson, Fannie A. Durell, and R. F. Alderson, each one-seventh thereof; to Mabel H. Alderson, wife of my son W. A. Alderson, and W. Elmira Alderson, wife of my son D. P. Alderson, each one-seventh thereof, for her sole use and benefit; to my executors, one-seventh thereof in trust for my daughter Bettie G. Watkins, and after her death then said one-seventh to be divided among her children then living; my executors to have full control over and disposition of said one-seventh interest, to sell the same and reinvest the proceeds thereof; the income and proceeds of said interest to be given to my daughter from time to time, for her support, as my executors may deem advisable and necessary. To my sons W. A. Alderson and D. P. Alderson I give no interest in my real estate. But it is my wish that my executors shall remain in control and manage all my real estate until all of them agree to sell the same, or any part thereof, excepting my residence, and lots connected therewith, in St. Charles, Missouri, bequeathed to my wife, aforesaid. I authorize my executors to at any time sell and convey all or any part of my lands and real estate, excepting my said residence and lots, with the same force and effect as I could have conveyed the same, and the proceeds of any and all such sales shall be divided according to the interest and rights of the legatees as herein provided: provided, that my executors are charged with the payment to my wife of said sum of six hundred dollars annually during her life. Fifth. I hereby appoint my sons D. P. Alderson, R. F. Alderson, and S. B. Alderson executors of this, my last will and testament, with the right of the majority to act, and request that they be not required to give bond as such executors. Sixth. I hereby revoke all former wills. In witness whereof, I have hereunto set my hand and affixed my seal in the presence of the subscribing witnesses this 6th day of April, 1893. Benjamin Alderson. [L. S.]

"We attest the above and foregoing will by subscribing our names hereto as witnesses in the presence of Benjamin A. Alderson, the testator, this, the 6th day of April, 1893. D. W. Ferguson. Albert S. Hughey."

Afterwards, on the 17th day of October, 1895, the plaintiff Mary A. Watson instituted this proceeding in the circuit court of St. Charles county by petition, in which the heirs at law aforesaid, of the said Benjamin A. Alderson, the wives of the said William A. and David P. Alderson, and the children of the said Bettie G. Watkins were made parties defendant. Afterwards, at the February term, 1896, of said court, and by leave thereof, an amended petition was filed, in which two of said heirs at law, viz. Fannie A. Durell and Anna M. Weems, and their husbands, were made parties plaintiff; and afterwards, at the August term, 1896, the petition, by leave of court, was further amended by interlineation, making another of said heirs at law (Robert F. Alderson) a party plaintiff. This amended petition, to which the demurrer was sustained, after setting forth said instrument of writing, the death of the said Benjamin A. Alderson, the death of his wife before his own death, the relationship of the aforesaid parties to him, and the probate of said instrument, alleges, in substance, that the said Benjamin A. Alderson died seised and possessed of certain real estate, described in the petition, situate in the said county of St. Charles; that on the 27th of February, 1892, the plaintiff Mary A. Watson obtained judgment against the defendant William A. Alderson in the circuit court of Jackson county, at Kansas City, in the sum of $4,192.52, and on the 12th day of January, 1893, obtained judgment against the defendant David P. Alderson in the same court in the sum of $1,873.45; that afterwards, on the 23d day of November, 1893, she caused transcripts of said judgments to be filed, entered upon the judgment docket, and recorded, as required by law, in the office of the clerk of the circuit court of the county of St. Charles, whereby the same became a lien upon all real estate owned by said defendants William A. and David P. Alderson in said county; that afterwards, on the 8th day of May, 1895, she caused executions to be issued on said judgments, which on the 18th of June, 1895, were levied upon all the right, title, and interest of the said William A. and David P. Alderson in and to the real estate aforesaid of which the said Benjamin P. Alderson died seised as aforesaid; that, in pursuance of a sale under said executions so levied, she afterwards, on the 30th of August, 1895, became the purchaser of all the right and title and interest aforesaid of the said William A. and David P. Alderson in and to said real estate, and thereafter received a sheriff's deed therefor, duly executed, acknowledged, and dated September 4, 1895; that said instrument of writing admitted to probate as aforesaid is not the last will and testament of the said Benjamin A. Alderson, and was not made and published as such, as required by law; that at the time of its execution the said Benjamin A. was of unsound mind and incapable of making a will; and that the execution thereof was procured by the undue influence of the said defendants William A., David B., and Samuel A. Alderson over the said Benjamin A., — and prays that an issue may be made up, whether said paper writing is or is not the will of said deceased, that the probate thereof be set aside, and the said paper be declared not to be the last will and testament of said deceased. The trial court, in sustaining the demurrer, held that the plaintiff Mary A. Watson, upon the...