43 Mo. 13 | Mo. | 1868
delivered the opinion of the Court.
This was a proceeding for partition, instituted in the Marion Circuit Court, and presents substantially the following statement of facts as gathered from the record. John Creasy and Mary Jane, his wife, formerly Mary Jane Alverson, claimed in right of the wife to be entitled to the one undivided one-third part of a certain tract of land situate in said county, and described in the petition as the west half of the northeast quarter of section three, in township fifty-nine, range number six west. It is alleged that Pleasant Alverson died intestate, sometime in the year 1859, seized and possessed of the premises in question, and leaving the following-named children his only heirs at law, viz: the said Mary Jane Creasy, Calvin and Thomas Alverson. The answer of Calvin Alverson denies any claim of title or interest in the premises, and avers that the father, Pleasant Alverson, by his last will and testament, devised the same to his said son Thomas, and that the tract was erroneously described in the will as the west half of the northeast quarter of section thirty-three, township sixty, range six. The other defendants, being the widow and heir at law of the said Thomas (who departed this life after the death of his father), deny the right of plaintiffs to any portion of the property, and set up a full and complete title, as aforesaid, under the last will of the said Pleasant Alverson. It is also averred that, upon the death of his father, Thomas took possession of the property, claiming title thereto ; that he made valuable improvements, and continued to hold the same adversely
Upon the trial in the Circuit Court this copy of the will was admitted in evidence, against the objections of the plaintiffs, and this presents the first question that will be considered in the-examination of the case. It appears that the evidence of the subscribing witnesses was reduced to writing, certified by the clerk, as the law directs, and indorsed upon the will.
The sixteenth section of the act respecting wills (R. C. 1855) directs the clerk of the County Court to receive the proof of all. wills exhibited for probate, “and grant a certificate of probate; or, if such.will be rejected, grant a certificate of rejection.” The law does not say to whom this certificate shall be granted, nor does it direct in what manner the evidence of this conditional act on the part of the clerk is to be preserved. That it is a mere conditional act on his part, and not conclusive either for or against the admission of the will to probate, is settled by the fourteenth section of the same act. So that if the proof taken by the clerk be deemed sufficient to admit the will to probate, and his certificate to that effect should be indorsed thereon, still, without an order made by the County Court, at its next term thereafter, confirming his act, this would constitute no sufficient evidence of the fact that it had been duly admitted to probate. The probate of a will is a judicial act, the best evidence of which is of course the order of the court confirming the act of the clerk, and is only to be ascertained by the records of that tribunal. (Jourdan v. Meier, 81 Mo. 40.)
The exemplification of the record in this case shows the entire instrument which purported to be the last will and testament of Pleasant Alverson, with the proof of the subscribing witnesses taken in the manner required by law, and that is all that would seem to be required by the twenty-eighth section of the same act to make it as effectual in evidence, in all cases, as the original
Five declarations of law were asked for by the plaintiffs : the first four relating to. the question of possession on the part of Thomas Alverson, deceased, and those claiming under him, and the last one in relation to the question of title under the will of Pleasant Alverson, deceased. The third and fifth were given, and the remainder refused. It appears that Pleasant died in May, 1859, and Thomas in the year 1863 ; that the latter took possession of this tract of land, made some improvements upon it, but they were taken away about the time of his death. Some declarations of his were testified to by a portion of the witnesses, to the effect that he claimed the premises as his own, and denied that Mrs. Creasy was entitled to any part of them. There were some acts of ownership' performed by the defendants after the death of Thomas, but no actual occupation of the land up to the time of bringing the suit. We think,'upon this state of facts, that the possession of Thomas and those claiming under him was hardly sufficient to authorize the finding of an actual ouster as against Mrs. Creasy. The employment of counsel to assert his claim to the property, and other attending circumstances, go to show that the plaintiffs were all the while claiming to be entitled to a share in it, and we think there would have been no error in giving the first four instructions.
In the defendants’ answer it is averred that the land in controversy was the eighty-acre tract which his father intended to be devised to his son Thomas, and that the same was improperly described in the will, by a mistake on the part of the person who drew it up ; that it should have been described as being a part of section three, township fifty-nine, instead of section thirty-three, township sixty,•> as it is written in the will. Now, the simple proposition to 'be determined is whether, in such a state of case, extrinsic evidence can be admitted for the purpose of ascertaining precisely the location of the land intended to be devised to Thomas Alverson. In the work of Sir James Wigram, relating to the admission of extrinsic evidence in the interpretation of wills (as published in the New Library of Law and Equity), vol.
That is not all. The person by whom the will was drawn up at the request of the testator testifies clearly.to the fact that the description of the property intended to be devised to Thomas was incorrectly set out, through his own mistake. He says that a patent containing a description of the property in question was handed to him by the testator, with instructions to include that piece in the portion of his real estate given to his son Thomas, and that he wrote the latter’s name upon the patent for the purpose of identifying the tract as intended for him, but by mistake he wrote down the wrong numbers of the section and township in drawing up the will. The description is otherwise correct.
It may frequently be a difficult matter to apply the rule under
Judge Baker concurring, the judgment is affirmed.