143 Mo. 137 | Mo. | 1898
This is the second appeal in this cause. The first is reported in Lilly v. Menke, 126 Mo. 190.
The subject-matter has been litigated since 1880. Its first appearance in this court was in the suit of the incorporated Catholic Church of Lexington, Missouri, v. Catherine Tobbein et al., to establish the will of Ilett Tobbein, 82 Mo. 418. It was held that the plaintiff therein had no property rights in the estate devised by said Tobbein and that the judgment should be reversed without remanding. Thereafter the plaintiffs as trustees of the unincorporated church of the Immaculate Conception for themselves and the other members of said church, renewed said suit and obtained a judgment establishing said will, and that judgment was affirmed in this court in Lilly v. Tobbein, 103 Mo. 477. The will established, plaintiffs commenced this suit in July, 1890, in the circuit court of Caldwell county for the partition of the estate of Ilett Tobbein in accordance with the provisions of his said will, and averred that by said will he devised and bequeathed one half of his estate to said unincorporated Catholic church at Lexington and that said church was entitled to one half of said estate.
After the cause had returned to the circuit court plaintiffs filed a third amended petition, omitting all allegations of waste, all reference to the final settlement of the administrator pendente lite, and all mention of the renunciation and election of Mrs. Tobbein. Thereupon the defendants repeated in their answer the allegations as to the renunciation and election of Mrs.Tobbein omitted by plaintiffs, averred her death, the probate of her will and their right to one half of the estate by virtue of said election and renunciation by Mrs. Tobbein and by her will, and also their right to one fourth under the will of Ilett Tobbein. Thereupon for the first time in the history of the litigation, plaintiffs by their reply denied that Mrs. Tobbein had made such election and renunciation, and denied that she became seized in fee of one half of said estate as plaintiffs had previously alleged. The circuit court reheard the cause and granted a decree of partition in accordance with the opinion of this Court in Berne, and plaintiffs appeal.
I. On the former appeal this court treated the averment of the plaintiffs in this case as conclusive that the widow of Ilett Tobbein had duly and legally
Preliminary then to any discussion of the evidence tending to prove or disprove the sufficiency of such •election and renunciation, it is a matter of grave interest to determine how far the privilege of amendment is to be extended. The defendants earnestly and rightly insist that plaintiffs, having elected during all these years to assert that said election was in all respects valid and sufficient with full knowledge of all the facts, can not now be allowed to amend and deny, not only a solemn admission of record, but their own affirmative statement of its sufficiency without the slightest claim of mistake or inadvertence as to the facts. By its finding and judgment the trial court evidently was of opinion that it was too late for the plaintiffs to deny the truth of their own solemn averments.
It is intolerable to allow a party to assert a fact and maintain it at every step in a cause until the court draws some unfavorable conclusion from the fact thus
II. Having determined that plaintiffs are estopped to deny Mrs. Tobbein’s election and renunciation, it follows that she became thereby seized in fee simple of one half of the real and personal estate of which Ilett Tobbein died seized and possessed, and her heirs and devisees derive their title to that portion of the lands to be partitioned through her will, and not through Ilett Tobbein. When Mrs. Tobbein made her election one half of her husband’s estate became hers absolutely, unaffected by his will. Her right of election was paramount to his right of disposition by will. The two statutes, the one of dower and the other of-wills, being in pari materia must be construed together and
When Ilett Tobbein executed his last will the law presumes that he was advised that he had no power to destroy his wife’s dower rights without her consent, and we must hold that it was his intention to devise only that portion of his estate which was subject to his lawful disposition by will, that is to say, all of his estate
Plaintiffs urge with great earnestness that the intention of Ilett Tobbein was to give the church one half subject to a life estate in his wife. So it was and his intention was equally clear to give the other half to her heirs and legal representatives upon the termination of her life or interest therein. The intention as to the one is no more definite than to the other and we can discover no evidence of a design to prefer one set of devisees over the other. Each was to receive one half subject to her life estate. But she had the legal right to reject this mere life estate and take a fee simple in half of his estate. While her election frustrates his purpose to the extent of the portion she elected to take in fee it did not destroy the whole scheme of his will, but it is the duty of the courts to effectuate his intention as far as possible consistent with legal principles. As neither of the devisees were, responsible for her choice, so neither is to be charged with her action, which neither the testator nor they could prevent, but her election did not deprive the
We find no reason for changing the'views expressed when this cause was here before. The circuit court rendered its judgment in accordance with the opinion then expressed and its judgment is affirmed.