Liggett v. LiggettLiggett v. Liggett
Mary H. Liggett was the daughter and only child and heir of one Jeremiah Baird, who died in 1905 owning 613.25 acres of land in Jackson County, Missouri, of which the eighty acres in question is a part. Said Mary inherited said land from her father and appeared of record to own it when she made her will and at her death. At Jeremiah Baird‘s death all of said land was subject to a $9000 deed of trust, which encumbrance was subsequently paid off.
Plaintiff‘s original petition herein was filed March 31, 1932, in the lifetime of his mother, Mary H. Liggett, naming as defendants said Mary and plaintiff‘s five brothers and sisters, who, with himself, constituted all of the children and prospective heirs of said Mary. In it plaintiff alleged that said $9000 encumbrance had been paid by him and the other named defendants and that he had paid more than one-sixth thereof, and was entitled to an undivided one-sixth of all sаid real estate, subject only to his said mother‘s interest, which in said petition he asserted was in fact only a life estate. Said petition prayed judgment ascertaining and defining the title and interests of the parties and that he be decreed the owner of an undivided one-sixth interest in all of said 613.25 acres. A notice of lis pendens was also filed.
Mary H. Liggett, by her attorney, George E. Kimball, filed a demurrer to that petition, which was overruled, and then filed a motion to make more dеfinite and certain, which was pending and undisposed of at her death.
“Fourth: Should any one or more of my children legally contest, this, my Last Will and Testament, and thereby attempt to break such Will, or in any manner alter its provisions, or change the portion given to such child or children, then, in such an event, the portion of my said lands or other property given, bequeathed and devised in this Will to such child or children, shall be revoked and shall not be so given to such child or children, nor shall any other portion of my property be given to said child or children, but the lands hereby devised to such child or children so contesting this Will, shall in such an event be given to and is hereby devised to the Salvation Army, upon the same conditions and restrictions as set forth in Letter (L), and the said child or children so contesting this Will shall by such act be disinherited.”
The will further provided that tenants in possession of any of testatrix’ lands should retain possession until the end of the rental year during which she might die. As to the eighty acres devised to plaintiff, that period ended February 28th or March 1st, 1933, which was the earliest time plaintiff could obtain possession of the eighty aсres devised to him if he claimed under the will.
After the death of Mary H. Liggett and on about November 22, 1932, plaintiff filed in the circuit court suggestion of her death and that the cause should be revived as to her in the name of her executor and trustee, Kimball. Appellants’ abstract of record does not clearly show whether or not an order of revivor was entered of record but this, perhaps, is not here important. Kimball, as executor and trustee, appeared and the cause proceeded with him, in said capacities, as a party defendant.
Thereafter, about May 15, 1933, plaintiff filed his first amended petition, in which he asserted that his mother, being desirous of having the assistance of her children in paying off said $9000 encumbrance and intending that all of said land should go at her death to her six children agreed with said children, and especially with plaintiff,
Going back a little in point of time, on the night of February 28, 1933, when the tenancy of the tenant then in possession of said eighty acres expired, plaintiff attempted to take possession of said eighty. The tenant was ready to and did vаcate that night or the next morning. It is a close question, on the record in this case, but one we need not here decide, whether or not plaintiff technically obtained possession. Kimball, as executor and trustee, had leased the premises to a tenant of his own, who appeared and demanded--and took--possession. If plaintiff did not obtain possession, legally speaking,
It appears that between the date of testatrix’ death and February 28, 1933, there had been a good deal of correspondence between Kimball and plaintiff‘s attorney rеlative to dismissal of plaintiff‘s suit, which the court excluded, and which therefore, is not before us, there being no point made on its exclusion, except as to one letter, which will be referred to hereafter. It sufficiently appears from the record, however, that at said time, February 28, 1933, Kimball was taking the position that plaintiff, by failing or refusing to dismiss his suit, had contested his mother‘s will and thereby forfeited his devise.
The suit was not dismissed. There followed court proceedings, such as demurrers, mоtions, etc., which need not be detailed. On June 14, 1934, defendants filed an answer to plaintiff‘s amended petition which is not set out in the abstract of record. On September 14, 1934, they filed an amended answer, admitting some allegations of plaintiff‘s first amended petition, denying others, and denying that testatrix devised to plaintiff the lands in question “to carry out so-called promises or for any purpose.” (Italics ours.) That answer did not contain a plea of forfeiture.
Thus matters stood on October 3, 1934, the datе which had been fixed for trial. On that date, by leave of court, plaintiff filed his second amended petition, which is short, evidently based upon
To said second petition the defendants filed what they denominated an answer and сross-petition, in which they alleged in substance: Several of the provisions of Mary H. Liggett‘s will, including the forfeiture clause above quoted; plaintiff‘s claim in his original petition to an undivided one-sixth of the lands whereof Jeremiah Baird died seized, subject to a life estate in testatrix; the revivor of said action by plaintiff after his mother‘s death; and “That the revival of said suit against said Mary H. Liggett was a legal contest against her Will and particularly of paragraphs Third and Fourth (letter (L) thеreof above quoted), (forfeiture clause) in that said suit then pending directly challenged her legal title to the lands devised by her and if successful would have destroyed her entire plan of distribution of her lands in the manner and in the proportions set up in said
Said “answer and cross-petition” further alleged that plaintiff, by procuring revivor, had reaffirmed the claims made in his original petition and had elected to “change his portion under the said will and to recover whatever interest he might have in the lands in controversy through his own legal action rather than to accept the conditional bounty of his mother, Mary H. Liggett;” that because of said revivor Kimball, as executor and trustee, had declared a forfeiture and had refused to give plaintiff possession of said eighty acres, and took pоssession thereof as trustee for the Salvation Army; that by his first amended petition plaintiff had renewed his assault upon his mother‘s title, but that in his second amended petition (upon which the case was tried) he had abandoned his claim of title through his grandfather, Jeremiah Baird, had acknowledged the “fee title” of his mother, testatrix, but sought to recover said eighty acres, “not as a bounty from his mother but upon his demand under a so-called contract, thus resting his entire case on said so-called contract;” and that “because of said conduct,” plaintiff had forfeited his devise. Said “answer and cross-petition prayed the court to determine and adjudge the title of all parties.”
Plaintiff‘s testimony at the trial was in substance and effect that he was claiming and had all along claimed the eighty acres under the will; that he did not claim any interest in the lands or property disposed of by the will except said eighty acres, as therein devised to him; that he was not contesting the will and at no time since his mother‘s death had had any thought of so doing or of disputing her title to the lands devised by her in said will. There was no substantial dispute of that testimony. Kimball testified for defendants but his testimony was mainly in regard to efforts he had made to get plaintiff to dismiss his suit after Mary H. Liggett‘s death, particularly before March 1, 1933, when the lease of the tenant of said eighty acres expired, and his refusal to let plaintiff have possession because, in his opinion, plaintiff had forfeited his devise by refusing to dismiss his suit. There was offered a good deal of correspondence, by letters, between Kimball and plaintiff‘s attorney, which the court refused to admit in evidence. No point is made on this appeal regarding the rejection of this evidence except as to one letter, which will be referred to hereafter. In general, however, it may be stated that it tended to show that Kimball was contending that plaintiff, by refusing to dismiss his suit, was contesting his mother‘s will and рlaintiff‘s attorney was contending that plaintiff was not contesting the will and had no intention of doing so. There was admitted, however, enough testimony from Kimball to show that he regarded
In our opinion, on the conceded faсts and under the pleadings on which the case was tried, plaintiff did not contest his mother‘s will and did not forfeit the devise therein made to him. We need not consider any question of departure or change of cause of action as between plaintiff‘s original petition and his second amended petition. No such question is raised. The cause was tried on the second amended petition and defendants’ answer thereto. Prior pleadings, as pleadings, may be treatеd as abandoned, Spotts v. Spotts, 331 Mo. 917, 55 S. W. (2d) 977, but, since they were introduced in evidence, they are pertinent for such evidentiary value as they may have. On the pleadings upon which the case was tried plaintiff simply claimed title to the eighty acres in question and defendants denied his claim on the ground that he had forfeited his title by contesting his mother‘s will, through which alone he could be entitled to claim. Those pleadings present no issue as to Mary H. Liggett‘s title, nor does plaintiff‘s evidence disclose any dispute thereof. Neither need we consider the question of the validity of a forfeiture provision in a will, such as that here involved. That question was considered and numerous authorities reviewed in In re Chambers’ Estate, 322 Mo. 1086, 18 S. W. (2d) 30, 67 A. L. R. 41, wherein it was held that such a provision is enforceable. But that question is not raised here. Both sides seem to treat the provision as valid. The question is, did plaintiff “legally contest” the will, within the meaning and intendment of that instrument?
The filing of this suit and the claim of a one-sixth interest made in plaintiff‘s оriginal petition cannot be construed as a contest of the will. There was no will then in existence. When testatrix made her will she knew that suit was pending, as did the draftsman of her will, an able and experienced lawyer, then her attorney. If she meant to make the devise to plaintiff conditional upon his dismissing the suit it would have been easy to say so in clear and unmistakable terms. She did not so say. Instead she said that if any one or more of her children should “legally contest” the will and “thеreby,“--that is, by such legal contest--attempt to break the will, alter its provisions or change the portion given to such child or children, such child or children should forfeit the share or shares devised. Our statutes,
It is urged here and was below that plaintiff cannot prevail, even though he claimed and got only the eighty acres devised to him, because he claimed it as of right, under an allegеd, but unproved, contract, rather than as a bounty from his mother. We cannot see that this makes any particular difference, under the circumstances shown. Whatever the reason that actuated testatrix in making and plaintiff in accepting the devise the fact remains that she did make it, as she had a right to do, and he accepted it as his full portion of her estate. He claims no more, and has not attempted to interfere with or obstruct the devolution of the rеmainder of the estate or the carrying out of the provisions of the will.
Much is said by appellants in their brief about plaintiff‘s refusal to dismiss his suit prior to March 1, 1933. It was because of such refusal that defendant Kimball attempted to declare a forfeiture and refused plaintiff possession of said devised lands. Plaintiff, while asserting that he had had no thought of contesting his mother‘s will, seemed somewhat hazy as to why he had not dismissed the suit. He said he had left that matter to his attorney. There was offered, as we have indicated, a good deal of correspondence between Kimball and plaintiff‘s attorney relative to that matter, indicating that Kimball was contending that by continuing the suit plaintiff was, in legal effect, contesting the will and plaintiff‘s attorney was contending that he was not doing so and did not intend to do so. That correspondence was not admitted in evidence. If it had been admitted it might have tended to show a reason, consistent with plaintiff‘s contentions, for the failure to dismiss his suit. Since that evidence was rejected we cannot consider it in determining the propriety of the court‘s action in directing a verdict for plaintiff. It does sufficiently appear from the record, however, that at said time plaintiff was claiming and attempting to take possession as devisee under his
If plaintiff had not lost his rights by forfeiture under the will when he thus attempted to take possession of the lands devised to him it is clear he did not do so thereafter. His first amended petition shows that he was claiming under the will and not disputing his mother‘s title to any of the property she thereby disposed of. In defendants’ answer to the second amended petition it was alleged that plaintiff had abandoned any claim of title from his grandfather, Jeremiah Baird, and “acknowledged the fee title of his mother, Mary H. Liggett, deceased,” which was true. The trial proceeded on the theory on plaintiff‘s part that he was entitled to the eighty acres under his mother‘s will and on defendants’ part that plaintiff had forfeited his devise by failing to dismiss his suit.
Forfeitures are not favоred and before they will be adjudged there must be substantial evidence justifying such declaration. Plaintiff‘s suit, as we have said, was instituted in his mother‘s lifetime and before her will was executed. It could not on any theory be construed in its inception as a contest of her will. After testatrix’ death it was revived and continued. It could no longer proceed without revivor as to Mary H. Liggett. But, notwithstanding the revivor, after the execution and probate of Mary H. Liggett‘s will, plaintiff claimed only the property devised to him by that will. Plaintiff‘s original claim of a one-sixth interest in all of the land was abandoned and by his amended pleadings, as we have shown, he claimed only the land devised to him. That claim was disputed.
Under the circumstances shown herein we are of the opinion that plaintiff‘s failure to dismiss his suit did not amount to legally contesting the will so as to work a forfeiture of his devise.
Complaint is made of the court‘s refusal to admit in evidence defendants’ Exhibit 6, which was a letter, dated February 21, 1933, written by Kimball, as executor, to plaintiff, notifying plaintiff in substance that the writer construed plaintiff‘s action in maintaining his suit as a refusal to accept the provisions of the will and that unless the suit was dismissed by February 28th, following, he, Kimball, would consider that plaintiff refused to accept the provision made for him in the will and desired that it be forfeited. The court also excluded a letter written February 24, 1933, by plaintiff‘s attorney to Kimball, in reply to Kimball‘s letter of February 21st, in which plaintiff‘s attorney, Prewitt, said thаt he did not agree with Kimball‘s “gratuitous” construction of the will and:
“Insofar as my client, Baird Liggett, is concerned he is willing to accept the provisions made for him in the Will of which you have been appointed Executor. Since the death of Mrs. Liggett he has not indicated by any word or act that he intended to legally contest the Will. As for his part he accepts the 80 acres devised to him as being his part of the estate.”
The refusal to admit in evidence said Exhibit 6 was not reversible еrror, in view of the issues presented by the pleadings and the conceded facts. Said letter expressed Kimball‘s opinion of the legal effect of plaintiff‘s refusal to dismiss the pending suit and forecast his intention to treat further refusal as conclusive that plaintiff intended not to accept his devise under the will. Those were matters he was not authorized to determine conclusively. Moreover if that letter had been admitted, then, clearly, Prewitt‘s reply thereto should have been admitted, in which it was clearly stated that plaintiff was not contesting the will and was willing to accept the eighty acres as his full portion.
A number of cases from other jurisdictions are cited, dealing with the question of what does or does not constitute contest of a will such as to justify enforcement of a forfeiture provision. They are based on facts not analogous to the facts of the case before us. We deem it unnecessary to review and distinguish them. The judgment of the circuit court is affirmed. Westhues and Bohling, CC., concur.
PER CURIAM:--The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All the judges concur.
BAIRD LIGGETT V. GEORGE E. KIMBALL, HAL H. LIGGETT and FLOYD ADAIR, Appellants.
108 S. W. (2d) 134.
Division Two
August 26, 1937.