Wells v. Wells

• Citation: 45 S.W. 1095,144 Mo. 198
• Parties: WELLS v. WELLS et al.
• Decision Date: 24 May 1898
• Court: United States State Supreme Court of Missouri

45 S.W. 1095

144 Mo. 198

WELLS v. WELLS et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1898.

WILLS — GUARDIAN AD LITEM — JUDGMENTS AS ENTIRETIES — DEFECT OF PARTIES — WAIVER — EVIDENCE — ARGUMENTS TO JURY.

1. Under Rev. St. § 6197, a guardian ad litem must be appointed for a minor defendant, in order to make the judgment valid against him.

2. A judgment in a statutory proceeding to contest the validity of a will, brought by a devisee against the other devisees therein, is an entirety, so that, if it is erroneous as to one, it is erroneous as to all, of the defendants.

3. In a statutory proceeding to contest the validity of a will, where it appears from the pleadings that all the beneficiaries therein were not joined as parties, the failure of defendants to raise the question as to defect of parties on the trial does not preclude the urging of such objection on appeal.

4. In a will contest, evidence of statements of testatrix that she never made a will are not admissible to show she never made the will in dispute.

5. Counsel should abstain, in argument, from discussing evidence, admitted for but one purpose, as to its bearing on other issues.

Appeal from court of common pleas, Louisiana county; Reuben F. Roy, Judge.

Proceeding by William Wells against James R. Wells and others to contest the validity of a will. From a judgment for plaintiff, defendants appeal. Reversed.

Clark & Dempsey, Sam Sparrow, and J. D. Hostetter, for appellants. W. H. Morrow and Fagg & Ball, for respondent.

ROBINSON, J.

This is a proceeding, under the statute, to contest the validity of the will of Elizabeth J. Wells, late of Pike county, which had been formally proved in the probate court. The will was executed on the 29th day of October, 1894, and the testatrix died in May following, at the age of 56 years. She was never married, and died without issue; leaving neither father nor mother. The plaintiff, William, and defendants James, Charles, Robert, and George Wells, are her only surviving brothers; and Berkley Wells is the only child of her deceased brother, John Wells. The will in contest is sought to be invalidated by her brother William Wells on the ground of want of testamentary capacity, and undue influence alleged to have been exercised by defendants James and Charles Wells. Neither the wife of Charles Wells, the children of William, James, Charles, Robert, and George Wells, all of whom are devisees under the will, nor Mr. Eaton, the executor and trustee, were made parties. At the time suit was instituted and judgment rendered, Berkley Wells was a minor, and no guardian ad litem was appointed by the court to represent him and protect his interests. There was a jury trial, resulting in a verdict and judgment setting aside the will. After unsuccessful motions for a new trial and in arrest, defendants bring the case here by appeal. By the terms of the will, testatrix gave Benjamin G. Patton, trustee, and his successor, 240 acres of land, situate in Pike county, worth $10 or $12 per acre, in trust for her brother Charles and his wife, Mary, during their lives, and at their deaths to their children absolutely, and the residue of her estate, including lands, money, and personal property, to the children of her brothers William, James, Charles, Robert, George, and John Wells, to be divided equally among them; the children of each of her surviving brothers to receive one share jointly, and her nephew Florence B. (called "Berkley") Wells one full share; the executor being authorized to sell and convert the remaining portion of the estate into cash, and divide the proceeds arising therefrom in the manner above stated. Benjamin G. Patton was also named as executor under the will.

The correctness of the judgment of the circuit court is challenged first on the grounds that at the time the judgment was rendered defendant Berkley Wells was a minor, and no guardian ad litem was appointed by the court to represent...