Nichols v. Robinson

| Mo. | Mar 28, 1919

GRAVES, J.

The petition in this case contains two counts, (1) one to quiet title and (2) one 'in ejectment. Each is conventional in form.

To the first count of the petition the defendant answered (1) by admitting his possession and admitting his claim of title, and averring that he held the record title from the patentee down and a general denial of other matters, and (2) the ten-year Statute of Limitations is invoked. To the second count he answered (1) by admitting his possession, claiming ownership, and denying other matters, and (2) a plea of the ten-year Statute of Limitations, and (3) a plea of the 24-year Statute of Limitations.

Reply was a general denial. Judgment for plaintiffs and defendant has appealed.

The facts of this case are simple and to the point. The land involved is conceded to be a part of the homestead of one Martin Asher, who is the common source of title. Martin Asher died testate on May 5, 1875. At this point dates are material. He left as his widow, Sarah Asher and a son, A. P. Asher. The fourth and fifth clauses of the will read:

“Fourth: I give- and devise to Elizabeth Asher, wife of my son Arthur P. Asher, and the heirs of her body, all of my real and personal estate, after all my just debts, liabilities and the legacies herein provided for are paid off and satisfied that shall then be remaining and not herein disposed and to their heirs.

“Fifth: It is not intended herein to interfere with my wife’s personal dower.”

The due probate of this will is denied and this becomes a question for decision.

Using the language of appellant’s counsel:

“The residuary devisee, Elizabeth Asher, wife of Arthur P. Asher, had three children, one of whom died in early infancy, and two who were living at the time of their grand-father’s death, namely, Thomas Asher and Rachel Asher.

“Thomas Asher survived his father A. P. Asher and died, unmarried and without issue, leaving his mother Elizabeth and his sister Rachel surviving. Elizabeth Asher died October 12th, 1912. Rachel Asher married Haywood Cook, by whom she had three children, Effie, Woody and Haywood Cook, who are the plaintiffs in this suit.”

Learned counsel for appellant further outlines his claim thus:

“Defendant claims under Sarah Asher, the widow of Martin Asher, on the theory that she took the homestead in fee, and under A. P. Asher, the son of Martin Asher, if the widow took a life estate only, because the will of Martin Asher was not probated and therefore ineffectual to pass title and A. P. Asher took by descent from his father.

‘ ‘ Sarah Asher, the widow of Martin Asher, married Edward Shipman on the 29th day of August, 1875, and after his death was married to Joseph A. Morris on January 8, 1877. On the 29th day .of November, 1878, by the name of Sarah Morris, she and her husband executed a deed to Elizabeth Asher and A. P. Asher, conveying lots 10, 11 and 14 of section 5, township 25, range 8, the identity of the grantors being established by the following recital in the deed:

“ ‘This indenture made on the 29th day of November, A. D. one thousand, eight hundred and seventy-eight, by and between Sallie Morris, late Sallie Ship-man, late Sallie Asher; and Joseph Morris, her husband, of the County of Stoddard and State of Missouri, parties of the first part, and Elizabeth Asher and A. P. Asher of the County of Butler and State of Missouri, witne,sseth, etc.’

“Elizabeth Asher and A. P. Asher, her husband, transferred lots 10 and 11 to Williám Stringer by warranty deed dated May 3, 1881, and William Stringer conveyed the same by warranty deed, dated May 26, 1891, to the defendant, Louis Robinson, who has ever since claimed title and held possession.

“Memoranda of conveyances:

“Sarah Morris and husband, quit claim, to Elizabeth Asher and A. T. Asher, lots 10, 11 and 14, Nov. 29, 1878.

“Elizabeth Asher and A. P. Asher, warranty, to William Stringer lots 10 and 11, May 3, 1881.

“William Stringer, warranty, to Louis Robinson, May 26, 1891.”

Counsel for respondents concisely state their case thus:

“Martin Asher left surviving him a widow, Sallie (or Sarah) Asher, who afterwards married a Ship-man and then a Morris, and Arthur P. Asher, a son. Item 4 of his will, provides as follows:

“ ‘Fourth: I give and devise to Elizabeth Asher, wife of my son, Arthur P. Asher, and the heirs o.f her body, all of my real and personal estate, after all my debts, liabilities and the legacies herein provided for are paid off and satisfied that shall then be remaining and not herein disposed of, and to their heirs.’

“Elizabeth Asher had three children, Thomas and Rachel, and one child that died in infancy. Thomas died when he was about twenty years old and left no children. Rachel Asher married Haywood Cook. She died September 20, 1911, leaving plaintiffs as her only heirs, they being the grandchildren of Elizabeth Asher. Elizabeth Asher died October 12, 1912, and Sallie Asher, the widow, died in the year 1913.

“Plaintiffs claim title to the land in controversy as residuary legates under the will of Martin Asher. Defendant claims by mesne conveyance from A. P. Asher, the only heir of Martin Asher.

“Defendant contends that the judgment rendered by the circuit court in this cause, should be reversed for the following reasons:

“1. That the lands in controversy constituted the homestead of Martin Asher, and passed to his widow in fee, under the Homestead Act of 1865, which title he acquired by mesne conveyances.

“2. That the will of Martin Asher was not legally probated and hence did not convey the title to these lands, but that the same passed to A. P. Asher, as the only heir of Martin Asher, and that defendant has his title.’’

From the foregoing can be gathered the real issues. In the brief of appellant we find nothing upon the Statutes of Limitation, and he evidently abandons those defenses.

Points for Decision. I. The counsel for respondent, as quoted in the statement above, have pointedly stated the two contentions of the defendant. The defense of the Statute of Limitations dropped from the case and is not even urged or briefed here. There is no question Sarah Asher, the widow of Martin Asher, in fact and law acquired a fee to this land by virtue of the Homestead Act of 1865, the defendant has acquired this title. Further, if the widow aforesaid, did not get the fee, hut only a life estate, and the will of Martin Asher was not duly probated, then the fee passed from A. P. Asher to this defendant. A. P. Asher was the only child of Martin Asher, and absent a will, he would take by descent. The defendant puts all his eggs in the two baskets. In effect he conceded that plaintiffs are entitled to recover, unless under one or the other of the two theories he acquired title. The two theories are (1) that the widow became possessed of a fee estate in this homestead upon the death of Martin Asher and defendant has her title; (2) that although he did not get the fee in this manner, yet Martin Asher’s will was never duly probated, and A. P. Asher was the only heir, and defendant procured both his title and the title of the widow, whatever it was. If defendant is right in either of these contentions he has standing in the case; otherwise he, in his brief, claims none. The questions we take in order.

Law: When Effective II. The contention is that the Act of March, 1875, (Session Laws 1875, p. 60), by which the widow’s interest in the homestead was reduced from a fee to a life estate, did not go into effect until June 16, 1875, or ninety days after its passage. This in face of the fact that Section 3 of the act reads':

“This act shall take effect and be in force from and after its passage.”

Appellant contends that this section is unconstitutional, and contrary to the general statute relating to the time at which bills should become laws. The Constitution of 1875 was not effective when this Act of 1875 was passed. The act was approved by Governor C. H. Hardin on March 18, 1875. Prom the Senate Journal (the bill originated there) it appears that on March 18th the committee on Enrolled Bills- reported that they had examined and found correctly enrolled Senate Bill 52 (the law involved here), “and had presented the same to Ms Excellency, the- Governor for Ms consideration.” [Senate Journal of 1875, p. 491.] On the same day by the same record (Senate Journal of 1875, p. 488) it is shown by the message of the Governor, therein and thereat incorporated, that he had approved the said bill. The bill as approved contained said Section 3 aforesaid.

In Article V, Sec. 9, Constitution of 1865 (under which this new law was passed), it is provided:

“Every bill which shall have been passed by both houses of the General Assembly, before it becomes a law, shall be presented to the Governor, for his approbation. If he approve, he shall sign it; if not, he shall return it, with his objections, to the house in which it shall have originated; and the house shall cause the objections to be entered at large on it' journals, and shall proceed to reconsider the bill. After such reconsideration, if a majority of all the members elected to that house shall agree to pass the same, it shall be sent, together with the objections, to the other house, by which it shall, in like manner, be reconsidered; and if approved by a majority of all the members elected to that house, it shall become a law. In all such cases the votes of both houses shall be taken by yeas and nays, and the names of the members voting for and against the bill shall be entered on the journals of each house, respectively. If any .bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall become a law, in like manner as if the Governor had signed it, unless the General Assembly, by its adjournment, shall prevent its return; in which case it shall not become a law, unless the Governor, after such adjournment, and within ten days after the bill was presented to him (Sundays excepted), shall sign and deposit the same in the office of the Secretary of State; in which case it shall become a law, in like manner as if.it had been signed by him during the session of the General Assembly.”

Here we have the record showing the presentation of the hill and the report of the Governor to the effect that he had signed it, and farther the records of the Secretary of State’s office showing the original signed bill. All are to one effect.

The point urged is, as I gather it from the brief, that the Governor did not have to sign a bill on the day of its passage, and hence the section reading, “This act shall take effect and be in force from and after its passage,” is anconstitational. Counsel also suggest that Section 4, page 76, of General Statutes of 1865, is effective here. This section reads: “All acts' of the General Assembly shall take effect at the end of ninety days after the passage thereof unless a different time is therein appointed.”

The legislative authority in Missouri is not wholly with the General Assembly. The Governor is a factor in legislation. When the General Assembly used the clause “after its passage” as it did in Section 3 of the act, it meant after the signature and approval of the Governor, or in the event he vetoed it, the final passage over his veto, as provided in the Constitution. It would be far-fetched to say that the legislative .body meant that the law should becoine effective without the presentation to the Governor. We can see no merit in this contention. To hold that this clause in this act violated the Constitution would be to invalidate a great many like sections of laws in this State. Nor is there substance in the contention that it violated the general laws then existing for fixing a date upon which signed bills should become laws. The general law, quoted supra, simply provides that such signed bills shall become effective' laws within ninety days after their passage “unless a different time is therein appointed.” This act did appoint a different time. The exact time became fixed, when the Governor on March 18th signed the bill. The bill had then fully succeeded in its passage over the Legislative course. We hold therefore that the Act of 1875 became an effective law on March. 18, 1875, and that the widow in this case did not take the fee in the homestead. Snch seems to he the trend of our holdings. Thus in Poland v. Vesper, 67 Mo. 727" court="Mo." date_filed="1878-04-15" href="https://app.midpage.ai/document/poland-v-vesper-8005998?utm_source=webapp" opinion_id="8005998">67 Mo. 727, we held that the homestead could he sold for debts, subject to the homestead rights. Vesper died March. 25, 1875, or just seven days after the Governor signed the Act nf 1875 on March 18th of that year. We could not have so held, without holding that the Act of 1875 became effective prior to Vesper’s death on March 25th. Because if it was not effective Vesper’s widow had the fee, and there was nothing to sell. This ruling was consistently followed, until we later changed the homestead law.

The defendant therefore could not have acquired more than a life estate through the deed of the widow. This life estate had fallen in prior to this suit by the death of the widow.

Proof of Probate. III. The will of Martin Asher was presented to the clerk of the county court on 29th day of June, 1875. Proof of the subscribing witnesses was taken, the concluding part being on July 3, 1875. The will was 011 date admitted to record by the clerk of the’ court, and letters testamentary granted to Joel Hobbs and Lawson A. Taylor, the executors named in the will, on August 3, 1875. The estate was fully administered under the term of the will, all debts and legacies paid under the terms, of the will, and the executors discharged in 1878. The contention is that there is no formal order admitting the will to probate.

The record of the court does show the following:

<£ Estate -of Martin Asher, Dee’d.

“Ordered by the court that the bond taken and the letters testamentary granted to Joel Hobbs and Lawson A. Taylor, by the clerk of this court in vacation, be and the same are hereby approved.”

Then, as above said, the court records do show the settlements and other estate matters, until the close of the estate. This sufficiently shows the probate of the will. With its probate, the alleged interest of A. -P. Asher drops out. So that the defendant acquired no interest by the deeds to him, save and except the life interest of the widow, which fell out upon her death:

No other matters appearing on this record, it follows, that the judgment nisi was correct, and should be affirmed.

All concur; Bond, J., in paragraph 3 and in the result.