Wilson v. Wilson

• Decision Date: 31 October 1873
• Citation: 54 Mo. 213
• Parties: TILLMAN C. WILSON AND DON E. WILSON, by their next friend, FULLERTON A. GROVE, Appellants, v. NAPOLEON WILSON, Respondent.
• Court: Missouri Supreme Court

54 Mo. 213

TILLMAN C. WILSON AND DON E. WILSON, by their next friend, FULLERTON A. GROVE, Appellants,

v.NAPOLEON WILSON, Respondent.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Adair Circuit Court.

Ellison and Ellison, for Appellants.

I. The action of the Probate Court in revoking the letters of administration, and granting letters testamentary, was a nullity, so far as the granting letters testamentary. It had power to revoke letters of administration, but none to grant letters testamentary without probating the will that stood upon its record as rejected.

II. When the widow received her letters from the Circuit Court, she had renounced the provisions of the will made for her benefit, rejected its provisions, and elected to be endowed under § 11 (W. S., 540). She must accept the will as she finds it, its burdens and benefits alike; and if she rejects its provisions for her, she cannot convey as executrix without an order of court.

III. The bequest is made to her in consideration of her accepting the will, and in lieu of dower. The title to all the land, including this in question, became the appellants upon the decease of the widow.

Greenwood & Pickler, for Respondent.

I. The will gave the land to the widow. She could have conveyed as owner, if the will were never probated; when the will was probated, the letters related back to all her subsequent acts under the will, or in attempting to act under it, and they were legalized (47 Mo., 500.) She had power to convey as owner and as executrix.

II. If after it was probated, she elected one-half, and rejected the provisions of the will, it would not invalidate the deed to respondent, who could not enforce upon her an acceptance of the will. (47 Mo., 247 and cases cited.)

III. She could reject the provisions of the will in her favor, and retain her power to sell under the will.

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment. The plaintiffs gave in evidence the will of their grandfather, which authorized his widow to sell the real estate in controversy; and this will was ordered to be filed for record and a certificate to be granted. This was in Feb'y, 1867.

On the same day a motion was made by the widow of the testator and his son, now defendant, for a new hearing, and it was granted, and the order establishing the will was set aside. Subsequently at the same term the will was rejected, and an order was made that a certificate of rejection be entered. At the same term Mary Ann Wilson, the widow, is appointed administratrix.

In April, 1867, Mary Ann Wilson files her election for dower, and prays the appointment of commissioners; and commissioners were appointed. In Nov., 1867, there appears an order stating, that Mary Ann Wilson, executrix of the last will of Tho. C. Wilson, prays for letters testamentary, and as it appeared to the court, that the said will had been proved and entered of record, it was therefore ordered that the letters of administration be revoked, and letters testamentary were granted.

It appears, that on the 30th Jan'y, 1868, Mary A. Wilson, executrix, executed a deed for the land in controversy to defendant. To the introduction of this deed it was objected that she had no power to make such a deed. A proceeding in the Circuit Court was then read in evidence. This was a petition on the part of Napoleon Wilson, on his own account, and as next friend of J. C. Wilson and E. Wilson, his sons, against Mary Ann Wilson and the County of Adair, and the object was to establish the will. This was at the Dec. Term, 1868; the result was, that the will was established and probated Jan'y 4, 1869. There was then a petition to assign dower at the Dec. Term, 1868; and in Jan'y, 1869, dower was assigned to the widow.

In April 1867, Mrs Wilson had renounced the will, and elected to take dower under the 11th Sec. of Rev. Stat., 1865,...