205 Mo. 537 | Mo. | 1907
This is an action in ejectment to recover two-eighths of the premises known as number 305 North Broadway, in the city of St. Louis, Missouri, being a lot of twenty-nine feet on the west side of Broadway, by a depth of one hundred and two feet, the south line thereof being twenty-eight feet north of Olive street, and for partition thereof between the parties. The parties in interest are all the surviving children of Hyam H. Cohen, deceased, .under whom they all claim.
The first count is in the ordinary form for ejectment.
The second count alleges that the plaintiffs and defendants Julia Herbert and Elizabeth Henriques are owners in common of said premises, the plaintiffs and Elizabeth Henriques each owning one-eighth thereof, and defendant Julia Herbert owning five-eighths thereof; that defendant Richard J. Herbert is the husband of Julia Herbert, and defendant Peter Oakes the tenant in possession under a lease from Julia Herbert; that Julia Herbert’s interest is subject to a deed of trust securing two notes for nine thousand dollars each, one of them being payable to each of the plaintiffs; that Hyam H. Cohen, the father of plaintiffs and of defendants Julia Herbert and Elizabeth Henriques, died owning said premises on May 10, 1874, and by his will devised the same to defendant Julia Plerbert, and her sister Victoria Cohen; that said Victoria died intestate on May 7, 1876, leaving, as her sole heirs at law, the plaintiffs and the defendants Julia and Elizabeth; that defendant Julia has, ever since her sister’s death, collected the rents and income and has failed and refused to account to plaintiffs for their portions of the same; and prays for partition and an order of sale.
Defendant Elizabeth Henriques made default.
The answer of defendant Oakes admits his pos
The answer of Julia and Richard J. Herbert admits that they are husband and wife, admits the tenancy of Oakes under said Julia, and denies all other allegations of the first count of the petition. It admits that Hyam H. Cohen, father of the parties, died seized of the premises on May 10,1874; admits that said Julia has, since her sister Victoria’s death, collected the rents, and denies all other allegations of the second count of the petition. Said answer then sets up the following defenses of new matter, viz.:
“1. That said Hyam H. Cohen by his will, duly admitted to probate, devised said premises to his daughters Julia and Victoria, as joint tenants, and that upon the death of the said Victoria, defendant Julia Herbert acquired the whole of said property by right of survivorship.
“2. That said Victoria Cohen by her will, duly admitted to probate in the State of New York, by a court having jurisdiction of the subject-matter and the parties, an authenticated copy of said will and the- probate thereof having been duly filed in the recorder’s office of St. Louis county, Missouri, devised whatever interest she had in said property to defendant Julia Herbert, and bequeathed to each of the plaintiffs, Samuel H. and Maurice H. Cohen, one-third of the proceeds of the sale of all her bonds, stocks and property, and that said Samuel H. Gohen and Maurice H. Cohen each received and took the interest given to them by said will.
“3. That, on February 19l, 1875', Victoria Cohen entered into an ante-nuptial contract with Richard J. Herbert, whereby she conveyed her interest in said premises to Samuel Cohen in trust for her sole and separate use and benefit, free from all rights of her intended husband, and for such other uses as she might
“4. That plaintiffs are estopped to claim any interest in said premises, other than as mortgagees in a certain deed of trust dated July 31,1876, made by Julia Herbert to secure a loan from each of the plaintiffs; that by said deed of trust, which was signed by plaintiffs as cestuis que trust, they acknowledged Julia Herbert to be the sole owner of the said premises, and acknowledged that the same had been devised to said Julia and Victoria Cohen as joint tenants, and that defendant Julia Herbert, relying upon plaintiffs’ acknowledgment of her sole ownership, afterwards spent large sums of money in improving said property.
“ 5. That defendant Julia Herbert now is, and for more than twenty-five years past has been, in actual, open, notorious, exclusive and adverse possession of the said premises, claiming title to the whole thereof.”
The reply denied all the new matter set up in the answer.
A jury was waived and trial had before the Hon. James B. Kinealy. The plaintiffs offered in evidence the will of Hyam H. Cohen, which was‘duly admitted to probate in the city of New York July 27, 1874, and an authenticated copy thereof and of its probate filed in the office of the recorder of deeds of the city (then county) of St. Louis, Missouri, on September 1, 1874.
By said will, the testator devised the property in suit to his “said daughters Julia and Victoria jointly,” and he also gave to said Julia and Victoria five twenty-second parts jointly, and his daughter Elizabeth, eight twenty-seconds, his son Samuel four twenty-seconds,
It appears that Victoria Cohen married E. J. Herbert, February 24,1875, and died on May 7,1876, leaving neither children nor mother nor father surviving her. She was survived by her two brothers, the plaintiffs, and her two sisters, Julia and Elizabeth. On November 14, 1877, the defendant Julia married Eichard J. Herbert. At the time of her death, Mrs. Victoria Herbert lived in New York, and left a last will and testament which she had executed on February 23, 1875, the day before her marriage to E. J. Herbert was solemnized. After her death, this will was duly probated in New York and in it the plaintiff Samuel H. Cohen was named as one of the executors and he qualified and acted as such, and the plaintiff Samuel H. and Maurice Cohen each took and received one-third of the said Victoria Herbert’s residuary estate as legatees under her said will, besides specific legacies of plate and jewelry. By the said will Mrs. Victoria Herbert devised her interest in the property in question to her sister Julia, and gave one-third of the proceeds of the sale of all her bonds, stock, etc., to her brother Samuel H. Cohen, and one-third to' her brother Maurice H. Cohen, and named her brother Samuel H. Cohen and Eichard J. Herbert as her executors in New York. On July 31, 1876, the defendant Julia Cohen, now Herbert, borrowed from each of the plaintiffs the sum of nine thousand dollars and executed and delivered to them as security for the same a deed of trust covering the whole of the property in question; since that time she had regularly paid to the plaintiffs the interest on the loan secured by said deed of trust. The principal of said loan was used by Julia Cohen in the erection of a five-story building upon the lot in suit. The defendant Samuel H. Cohen attended
The decree of the surrogate’s court of New York shows that said will was offered for probate by Samuel H. Cohen, one of the executors named therein; that on said application the surrogate court did ascertain by satisfactory evidence who were the husband and only heirs and next of kin of the deceased and their respective residences and did thereupon issué a citation to said husband, heirs and next of kin requiring them to appear and attend the probate of said will on May 25, 1876; that satisfactory proof was made of the service of said citation in the mode prescribed by law • that no one appeared to .oppose the probate of the will, whereupon the surrogate took the proof of said will, and, on May 26, 1876, adjudged and decreed “that the instrument offered for probate in this matter is the last will and testament of the said testatrix, and as such is valid as a will of real and personal estate, and the same is hereby admitted to probate as a will of real and personal estate. ’ ’ This will was executed in accordance with, the requirements of the laws of Missouri, and probated in conformity to the requirements of
Julia Herbert testified that she had been in the ■sole possession of this property from the death of her sister down to the present time, receiving all the rents and income therefrom and paying all the taxes and repairs; that she and her sister Victoria came into the possession of the property in July, 1874; that at the time of Victoria’s death they were intending to tear down the old building and erect upon the property a five-story, iron and stone business building; that immediately after Victoria’s death, she (Julia) proceeded to cairy out this plan and sent her brother Samuel out here from New York to make arrangements for the building; that she borrowed the eighteen thousand dollars secured by deed of trust, from her brothers, for
David F. Kaime testified that Mrs. Julia Herbert ' placed the property in his hands in the spring of 1877, and he has had charge of it ever since for her; that he collected the rents, paid the taxes and made repairs, and has remitted the balance to Mrs. Herbert; that during the whole of that time, the property has been assessed in the name of Mrs. Julia Herbert; that he occasionally met Samuel and Maurice Cohen during the years he has had charge of the property, and on such occasions they would speak to him about the property, referring to it as “our sister Julia’s property on Broadway.” That neither of them claimed to him to own an interest therein until shortly before the
The defendants'offered in evidence certain sections of the statutes of New York, the first of which defines the surrogate court to he a court of record, the second defines the jurisdiction of a surrogate as follows: “First, to take the proof of wills; to admit wills to probate. Second, to grant and revoke letters testamentary. ' Third, to direct and control the conduct and settle the accounts of executors. Fourth, to enforce the payment of debts and 'legacies and to distribute the estate of the deceased.” The third section provides that a will executed by an unmarried woman should be deemed revoked by her subsequent marriage.
The court gave and refused certain declarations of law, which will be noticed in the course of the opinion. The court found the issues in favor of the defendants and rendered judgment for the defendants on both counts of the petition. From this judgment, the plaintiffs have prosecuted this appeal.
I. As to the first proposition advanced by the plaintiffs, to-wit, that by the will of Hyam H. Cohen, his daughters Julia and Victoria became tenants in common of the property in controversy, and that upon the death of Victoria without children and intestate, if the court should find from the evidence that she did die intestate as to said property, then one-half of said premises descended to the brothers and sisters of Victoria in equal parts, there is no controversy, as our statute, section 4600, Revised Statutes 1899', which was the same at the time of the execution of the will of
II. The decisive question in this cause is, did Victoria Cohen Herbert die intestate as to the real estate in controversy herein? That she made a will which was executed, attested and probated in the surrogate’s court of New York county in the State of New York, in the manner prescribed by the laws of Missouri, at that time, General Statutes of Missouri, 1865, page 528, section 8, and page 520, section 20, is conceded, or at least fully appears by the evidence in the cause. And that a copy of said will and of the judgment admitting it to probate properly authenticated according to the Act of Congress, was recorded in the recorder’s office of the then county of St. Louis, on June 6, 1876; as required by section 34, General Statutes 1865, page 530, also appears. The statute of this State in force at that time, sections 33 and 34, page 530, General Statutes 1865, as at present, dispensed with the probate anew in this State of wills admitted to probate in another State, provided they were executed, attested and proved in the manner required by our laws. And in lieu of probate anew in this State provided the “authenticated copies of such wills and the probate thereof, shall be recorded in the same manner as wills executed "and proved'in this State, and shall be admitted in evidence in the same manner and with like effect. ” Accordingly, it has been ruled that where a will executed in another State according to the laws of Missouri had been probate'd and recorded in the former State and an authenticated copy of such record was filed in the county where the land
But the plaintiffs contend that both by the laws of New York and of this State at the time of the execution of her will by Victoria Cohen said will was revoked by her subsequent marriage to the defendant Richard J. Herbert. [G. S. 1865, p. 528, sec. 6, now sec. 4607, R. S. 1899; 2 Wagner’s Stat. 1872, p. 1365, sec. 6; R. S. New York, 1901, vol. 4, p. 4889, see. 44; 2 R. S. N. Y. 64, sec. 44.] The learned counsel for the plaintiffs have cited us to various decisions of the New York courts, notably Brown, v. Clark, 77 N. Y. 369; Matter of Davis’s Estate, 1 Tucker’s Surrogate Rep. (N. Y.) 107, and Lathrop v. Dunlop, 4 Hun 213, to establish the proposition that the subsequent marriage of Victoria Cohen revoked her will. Now as to these cases Brown v. Clark was an appeal from the order of the Supreme Court reversing a decree of the surrogate, which had denied probate to an instrument presented as the last will and testament of Mary J. Clark Proctor, deceased. Mary J. Clark executed said instrument as her last will on August 25, 1873; subsequently she married Mr. Proctor. After her marriage and on December 7, 1876, she executed a
To the same effect is Swan v. Hammond, 138 Mass. 45, which was a direct appeal from the probate court admitting a will made by a single woman who had subsequently married, to probate. The court held that the subsequent marriage was a revocation. And so also was the case of Blodgett v. Moore, 141 Mass. 75. The case of Crum v. Sawyer, 132 Ill. 457, was a bilk in equity brought by the surviving husband of Mrs. Crum to enforce a contract made between a husband and wife during coverture. It appears that the wife
The question is not a new one in other jurisdictions in this country. Thus in Poplin v. Hawke, 8 N. H. 124, the court said: “The first question is whether M. Thom took anything under the last wills of Abigail Braves and Betty Thom. These wills were made during the lives of their husbands; and it has been settled in this State . . . that a married woman has no power to devise lands by will. If, then, the question was on the allowance of the wills of Abigail Braves and Betty Thom, it must be held that they had not power to devise, and the instruments be rejected. But both these wills have been allowed and proved in the probate court. The decrees of allowance stand un
In Parker v. Parker, 11 Cush. (Mass.) 519, it appeared that the will was made in New Hampshire by a married woman, admitted to probate there, and a copy of the will and such probate recorded in Massachusetts, as provided by. statute of the latter State. Under the law of both said States, a married woman had no capacity to make a will. Held: That the New Hampshire probaté, filed and recorded in Massachusetts where the land was, unappealed from and unreversed, was final- and conclusive upon the heirs of the testatrix, and that they could not deny the legal capacity of the testatrix to make such a will.
In Cochran v. Young, 104 Pa. St. 334, it áppeared that a will devising real estate was duly admitted- to probate on September 5, 1862. On February 11, 1881, a codicil óf á later date disposing of the same property in a different manner, was admittéd to probate-. An action of ejectment was brought by the devisee under the codicil against the grantee of the original devisee under the first probate. Held: the probate of the
In Winslow v. Donnelly, 119 Ind. 565, the court said: “The appellants seek a decree quieting title, and allege in their complaint that their title is clouded by a devise to the appellee. They aver that the will containing the devise was procured by the fraud of the devisee. . . . The complaint also alleges that the will ‘was duly admitted to probate in the district court of Cedar county, Iowa, and a duly authenticated copy of said will, and the probate thereof, had been filed and recorded, under the provisions of the statute of this State, in Parker county.’ The trial court did not err in sustaining the demurrer to the complaint. The judgment of the district court of Cedar county, Iowa, precludes the appellant from attacking the will in an action to quiet title.”
In Bowen v. Allen, 113 Ill. 53, the action was ejectment. The plaintiff offered in evidence the will of Ann Quinn, admitted to probate by the Marion County Probate Court, which judgment was affirmed on appeal to the circuit court. It was shown that the will was made while she was unmarried, and that she subsequently married. Under the Ulinois law the subsequent marriage operated as a revocation of the will. The court said: “It is also urged that the marriage of testatrix after its execution revoked the will. This is concluded by the judgment of the circuit court,
In Cold Storage Co. v. Winsor, 148 Ind. 682, under a statute in terms very much like section 35, page 530, General Statutes of Missouri, 1865, it was held that where the will of a married woman had been admitted to probate in New York, and a copy thereof and of its probate filed in Indiana where the land was situated, such will could be contested in the latter State within three years of the filing thereof, on the ground that the will was, under the Indiana statute, revoked by the subsequent birth of issue to the testatrix.
Under the General Statutes of 1865, sections 29 to 35, page 530, the plaintiffs in this case might have contested the will of Victoria Cohen Herbert within five years after said will was filed for record in this State, upon the ground on which they now seek to avoid its force and effect. But having failed to avail themselves of the remedy in the mode and within, the time provided by our laws, the will of Victoria Cohen by which her interest in the real estate in suit in this case was devised to the defendant Julia Herbert, must be given full force and effect and held to have passed her undivided interest therein to her sister Julia, as has been recently held by this court in. Stevens v. Oliver, 200 Mo. 492; reaffirming Jourden v. Meier, 31 Mo. 40; Stowe v. Stowe, 140 Mo. 594; and Stevens v. Larwill, 110 Mo. App. 140, wherein it was said: “The suit for
The learned counsel on both sides have discussed other interesting propositions in this case, to-wit: whether the plaintiffs are not estopped by reason of their having received and taken their share of their sister Victoria’s estate under the laws of the State of New York, and by their conduct in having loaned their said sister Julia $18,000 on this property -and taken her deed of trust conveying the whole of the same to secure the said loan. Counsel on both sides have also discussed whether the Statute of Limitations has or has not barred the right of the plaintiffs to recover in this case, and whether the possession of the said Julia Herbert has or has not been adverse to plaintiffs’ rights: And on the part of the defendants there is an able and learned discussion as to whether or not the will of the said Victoria, although not good as a will, may not be held a valid execution of the power of appointment reserved to her in her ante-nuptial contract with R. J. Herbert. We have considered the briefs on these points, but inasmuch as we have reached the conclusion that the judgment of the surrogate court of the county of New York probating the will of Victoria Cohen and the subsequent filing of the same and the probate thereof in the office of the recorder of deeds of St. Louis county and the failure of the plaintiffs to
