Williamson v. Roberts

• Decision Date: 02 June 1916
• Docket Number: No. 17960.,17960.
• Citation: 187 S.W. 19
• Parties: WILLIAMSON et al. v. ROBERTS et al.
• Court: Missouri Supreme Court

187 S.W. 19

WILLIAMSON et al. v. ROBERTS et al.

No. 17960.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Suit in ejectment by J. N. Williamson and others against J. R. Roberts and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded, with directions.

Wm. H. Horine and J. T. White, both of Springfield, for appellants. Neville & Gorman, of Springfield, for respondents.

BOND, J.

I. This is an ejectment, involving the title to certain land situated in Greene county, Mo., necessitating the construction of the will of R. H. Williamson, deceased, who owned said land at the time of his death. At the time he executed the will in controversy and at the date of his death, R. H. Williamson was the father of five children, one of whom, an unmarried daughter, Alamanda, was a sufferer from epilepsy. It was his desire to provide for this unfortunate child, and in the second clause of his will he devised certain land to her, the title to which is in dispute in this cause, together with certain other land which is the subject of another suit, with which we are not concerned on this appeal. At the time of his death, October 12, 1903, the testator owned only the land described in the will and devised to his daughter Alamanda. On August 1, 1904, Alamanda Williamson was declared insane, and H. A. Wommack was appointed as her guardian and curator. In order to provide for her, it became necessary to sell said land, which was done under the direction of the probate court on December 15, 1906; the proceeds being applied by her guardian toward her maintenance and support until her death in 1912. In the meantime, the title to the land thus sold passed by mesne conveyances from the first purchaser Maze, to the defendant J. R. Roberts.

This suit was instituted by the children and grandchildren of R. H. Williamson to recover the land from the last vendee on the theory that the will was void as to the other children of the testator who were not specifically mentioned nor provided for therein. The defendants in their answer set up the will as one defense, and also pleaded that plaintiffs were estopped by their conduct to dispute the validity of the will or to claim the land.

The trial court rendered judgment for defendants, and found as a fact that plaintiffs had waived no right to question the validity of the will, but held the will was sufficient to pass the title to the exclusion of the plaintiffs, and that the third clause ("[3] I desire that all the rest and residue and remainder of my estate be disposed of as the law directs") was sufficient provision for the plaintiffs to take them out of the statutory rule that a testator dies intestate as to children and their descendants not named or provided for in such will. R. S. 1909, § 544. Plaintiffs duly appealed to this court.

II. The question presented is whether the terms of the will bring it within the purview of the statute annulling it as to such children or their descendants neither named nor provided for therein, which shall survive the testator. The language of the statute is, to wit:

"If any person make his last will, and die, leaving a child or children, or descendants of such child or children in case of their death, not named or provided for in such will, although born after making such will, or the death of the testator, every such testator, so far as shall regard such child or children, or their descendants, not provided for, shall be deemed to die intestate."

It has been repeatedly interpreted and construed both in this state and in other states having substantially the same statute. Meyers v. Watson, 234 Mo. 286, 136 S. W. 236; Hargadine v. Pulte, 27 Mo. 423; Wetherall v. Harris, 51 Mo. loc. cit. 68; Pounds v. Dale, 48 Mo. 270; Thomas v. Black, 113 Mo. 66, 20 S. W. 657; Bradley v. Bradley, 24 Mo. 311; Boman v. Boman, 49 Fed. 329, 1 C. C. A. 274; Gerrish v. Gerrish, 8 Or. 351, 34 Am. Rep. 585; Gage v. Gage, 29 N. H. 533; In re Barker's Estate, 5 Wash. 390, 31 Pac. 976; Purdy v. Davis, 13 Wash. 164, 42 Pac. 520; Bower v. Bower, 5 Wash. 225, 31 Pac. 598. The rule deducible from these decisions, as well as the language of the above statute, is that, where...