200 Mo. 492 | Mo. | 1906
This is a suit for the partition of certain real property in Kansas City, Missouri, between plaintiffs who are nephews of John C. Larwill, deceased, and claim as his heirs, and the defendants, who claim as devisees and legatees under the last will and codicil of said Larwill. John C. Larwill died at Mansfield, Ohio, in August, 1901. At the close of all the evidence the court, at the instance of defendants, gave an instruction in the nature of a demurrer thereto, and instructed the jury to find for defendants, whereupon plaintiffs took a nonsuit with leave to set the same aside, and a motion to that effect being overruled by the court, plaintiffs saved their exceptions and bring the case before this court by appeal for review.
The will of John C. Larwill was admitted to probate in Richland county, Ohio, where he lived at the time of his death, and also in Jackson county, Missouri. An authenticated copy of said .will with the certificate
“In the Probate Court of Richland County, Ohio,
“Probate oe "Will.
“In the matter of the Will of John C. Larwill, deceased.
“Re it remembered, that on the 9th day of September, 1901, an instrument of writing purporting to be the last'will and testament of John C, Larwill, deceased, was produced in open court, and an application filed therewith, by Richmond Smith, to admit the same to probate and record. Whereupon the court orders as follows:
“September 9, 1901. In the Probate Court of Richland county, Ohio. The Last Will and Codicil thereto of John C. Larwill, deceased.
“This day application was made in due form of law for the probate of the last will and codicil thereto of John C. Larwill, late of this county, deceased, whereupon it is ordered that notice issue from this court to the widow and nest of kin of said decedent residents of Ohio acquainting them of the filing, pendency, prayer, and place and time of hearing of said application, which said time of hearing is hereby set for the 10th day of September, A. D. 1901, at 9 o’clock a. m.
“September 10, 1901. In the Probate Court of Richland county, Ohio.
' “The last will and testament and codicil thereto of John C. Larwill, deceased.
“This day the application to admit the last will and codicil thereto of John C. Larwill, late of Richland county, Ohio, deceased, to probate, came on for hearing according to the previous order of this court and*501 thereupon came S. Brainard Leiter and L. A. Strong, the subscribing witnesses to said will, and S. B. Leiter and H. Scattergood, the subscribing witnesses to said codicil attached to said will, and in open court on oath testified to the due execution of said will and codicil thereto, which testimony was reduced to writing, and it appearing to the court from the testimony of said witnesses that said will and codicil thereto was duly and legally attested and executed and that said testator at the time of executing the same was of full age and of sound mind and memory, and not under any restraint, and it further appearing to the court that the widow and next of kin of said decedent have been duly notified of the filing, pendency, prayer and place and time of hearing of said application according to the previous order of this court ; it is ordered that the said will and said codicil thereto be and the same is hereby admitted to probate, and that said will and codicil thereto together with the proceedings relative to the .probate thereof be recorded in the will record of this court.
“I, John C. Larwill, of Mansfield, Ohio, do make and publish this, my last will and testament.
“First. I give and bequeath to my beloved wife in lieu of her dower in my real estate and of her distributive share of my personal estate and of any and all interest that she may be entitled to in or to my estate or any part thereof, one thousand dollars for personal expenses to be paid to her by my executor or executors within thirty days after my decease; also the further sum of one hundred thousand dollars to be paid to her twelve months or sooner at the convenience of my executor or executors, after my death, but if said sum of one hundred thousand dollars cannot be paid within said period of twelve months without inconvenience or sacrifice of property my executor or executors may take such further reasonable time for the payment thereof not exceeding two years from*502 the date of my ' decease, but if such further time for the payment of said one hundred thousand dollars is taken by my executor then my executor shall pay my wife interest on said sum at the rate of three per cent per annum, interest to' be computed from twelve months after my decease, the interest to be paid to her annually. I further give and bequeath to my wife all the furniture, carpets, beds and bedding, piano, pictures and bric-a-brac, together with all the silverware, china and all household and kitchen furniture, stoves and fuel contained in the house in which we reside, also all the books in the library, and in fact everything in use in the house excepting such articles as I may specifically name as being bequeathed to other parties.
Second. It is my wish and will that the sum of not less than twenty thousand dollars nor more than twenty-five thousand dollars be applied and expended by my executor in the erection and completion of a monument or chapel to the memory of my son, Arthur, the design of which I intrust to my sister, Elizabeth L. Miller, my wife, and for the payment of the bequest to my wife, and the erection, of the memorial to my son, Arthur, as provided in item first and second, my entire estate is to be held and the same is made a charge thereon, and the sum above named to be paid as provided for before any other bequests hereinafter mentioned are paid.
Third. I give and bequeath to the Baptist Church of Loudonville, Ohio, the following sums and for the .purposes herein named, one thousand dollars to be invested as a permanent fund, the interest arising therefrom to be annually used in payment of the salary of the minister; two hundred dollars for the purchase of a book case for the Sunday School library; five .hundred dollars for the purchase of books for said library; three hundred dollars to apply on the purchase of a pipe*503 organ for said church, and five hundred dollars to he invested as a permanent fund, the interest arising therefrom to he annually expended in the purchase of suitable books for the Sunday school of said Baptist church, the selection and purchase of said books to be made by or under the direction of the pastor of said church and the superintendent of the Sabbath school.
“Fourth. To my brother, William Larwill, I give and bequeath an annuity of six hundred dollars during his natural life to be paid to him quarterly; in addition to said sum of six hundred dollars to be paid to my brother, William, annually as herein provided, I direct my executor to set apart the sum of three hundred dollars to defray funeral expenses.
“Fifth. I also give and bequeath to my sister,. Elizabeth L. Miller, the sum of fifty thousand dollars.
“Sixth. I give and bequeath to' my brother, Joseph H. Larwill, the sum of fifty thousand dollars.
“Seventh. To my nephew, Miller Stevens, of Kansas City, Missouri, I give and bequeath the sum of fifteen thousand dollars, which shall be in full of any account for services rendered me, and from said sum of fifteen thousand dollars shall be deducted any indebtedness due either myself or wife as represented by note or otherwise.
“Eighth. I give and bequeath to John O. Larwill Stevens, son of George A. Stevens, of Kansas City, Missouri, one thousand dollars.
“Ninth. I give and bequeath to my nephew, W. L. Stevens, of Kansas City, Mo., four thousand dollars.
“Tenth. I give and bequeath to Mary Weimer, our faithful domestic, the sum of one thousand dollars.
“Eleventh. I give and bequeath to my cousin, Julia F. Carr, of Mansfield, Ohio, the sum of five hundred dollars.
“Twelfth. I give and bequeath to my niece, Julia ■*504 B. Jenner, of Mansfield, Ohio, the sum of one thousand dollars.
“ Thirteenth. I give and bequeath to Cyrus S. Conn, of Mount Vernon, Ohio, the sum of five hundred dollars.
“Fourteenth. I give and bequeath to the children of W. S. Fisher, of Louisville, Ohio, to-wit, Howard Fisher, Emma Fisher, Susie Fisher, Mary Fisher and Charles Fisher, each one hundred dollars; if at the time of payment of the said sums any of said children not be of age the same shall be paid to the father of said children as trustee.
“Fifteenth. To the Hospital Association of Mansfield I give and bequeath the sum of five thousand dollars.
“All the bequests named above excepting items one and two are payable at the option and convenience of my executor.
“I require no appraisement nor inventory of my property to be made, nor do I require any bond from my executor.
“I nominate Paul Oliver, of Perryville, Ohio, as my executor and have full confidence that he will faithfully execute the trust I repose in him.
“In testimony hereof, I have hereunto set my hand and seal this 4th day of October, A. D. 1897.
“John C. Larwile (Seal).
“Signed and acknowledged by John C. Larwill, as his last will and testament in our presence and signed by us in his presence and at his request.
“S. Brainabd Leiter.
“L. A. Strong.
“Whereas, I, John C. Larwill, on the 4th day of October, A. D. 1897, made my last will and testament of that date, I do hereby declare the following to be a codicil to my said will.
“Item 1. I hereby revoke the bequest of five thousand dollars to the Hospital Association of Mansfield,*505 Ohio, unless fifteen thousand dollars additional shall he subscribed and paid in within one year after my decease, the same to be used in the construction and equipment of the said hospital; and I also require S. N. Ford, Robert B. Maxwell and Richard Smith shall be elected members of the board of trustees of said Hospital Association, and their decision regarding the provisions of this request being complied with shall be final.
“Item 2. I hereby give and bequeath to Laura Larwill, daughter of J. Fawcet Larwill, of Wooster, Ohio, the sum of fifteen hundred dollars.
“Item 3. I give and bequeath to my niece, Mrs. Julia B. Jenner, of Mansfield, Ohio, three hundred dollars per annum during her natural life, payable quarterly, the same being in addition to the amount given her in my will.
“Item 4. I give and bequeath to our faithful domestic, Mary Weimer, one thousand dollars in addition, to the amount given her in my will.
“Item 5. To my nephew, O. H. Stevens, of Kansas City, Mo., one thousand dollars in consideration of his kindness and attention to his mother during her last illness and death.
“Item 6. I hereby revoke the donation in my will of three hundred dollars to the Baptist church of Loudenville, Ohio, toward the purchase of a pipe organ, the church having purchased one.
“Item 7. To my nephew, J. K. Miller Stevens, of Kansas City, Mo., I hereby give five thousand dollars in addition to the amount bequested to him in the body of my will, the same to be in full of all services heretofore rendered me and hereafter until the first day of January succeeding my death.
“Item 8. To the trustee of the Cemetery Association where my mausoleum may be built, the sum of one thousand dollars, the interest on the same to be applied*506 in keeping up said mausoleum and in beautifying tbe grounds.
“Item 9. To my brother, "William Larwill,' I give the use during his natural life of the 80 acre tract of land I. own in Howard township, Knox Co., Ohio, being the same land purchased by me from George Sapp, described as being off the west end of lot number five (5) in the first quarter of the seventh (7) township and eleventh (11) range in said Knox County U. S. M. land, he paying the taxes that may be assessed upon the same.
“Item 10. To Mrs. Belle Critchfield, of Mount Vernon, Ohio, widow of John M. Critchfield, dec’d, the sum of five hundred dollars in consideration of her kind" ness to my deceased son, Arthur, during his life. This item is increased five hundred dollars, making in all one thousand dollars.
“Item 11. I hereby authorize my executor to bid in at sale any property upon which I may have a mortgage lien, at their discretion and sell the same in like manner when they deem it for the interest of my estate so to do.
“Item 12. My Mansfield Gas Stock, Humphreys Manufacturing stock, Ohio Brass Company stock, Citizens Bank stock of Mansfield, 1st National Bank stock of Bowling Green, Ohio, to be the last of my effects to be disposed of by my executors, the income from the same to be used in paying annuities., etc.
“Item 13. I give and. bequeath to my wife Susan M. Larwill, as trustee for the benefit of the Library Association of Mansfield, Ohio, five thousand dollars, to be expended by her in the purchase of books, or otherwise, as she may see fit, but to be expended within three years after my death. All bequests made in my will and codicil will be payable at the pleasure of my executors.
“I hereby nominate and appoint as my executors*507 Paul Oliver of Perryville, Ohio, and Richard. Smith of Mansfield, Ohio.
“The residue of my estate I wish divided into twenty-four shares as follows, to-wit: To my wife, Susan M. Larwill, four shares; to my brother, Joseph, four shares; to my brother, William, two shares; to my sister, Elizabeth L. Miller, two shares; to my nephew, Paul H. Larwill, four shares; to my nephew, Miller Stevens, of Kansas City, Missouri, one share; to my niece, Julia Jenner, one-half share; to the First Baptist church of Loudonville, one-half share. The residue to be divided equally between my wife and my sister, Elizabeth, my brother, Joseph, and his son, Paul.
“I am mot unmindful of the fact that I have omitted from my will all mention of several relatives of mine. This omission is not accidental or inadvertent or from any unkind feelings on my part, but deliberate and determined, and for reasons which seem to be good and sufficient, I have decided to exclude from any participation in my estate any and all persons not mentioned in this, my will and codicil.
“In testimony whereof, I have hereunto set my hand and seal this 28th day of September, in the year ninteen hundred.
“John C. Larwill (Seal).
“Signed and acknowledged by said John O. Larwill as a codicil to his last will and testament, in our presence and signed by us in his presence.
“S. B. Leiter.
“H. SOATTERGOOD.
“The State of Ohio, Richland County, ss:
“We, S. Brainard Leiter and L. A. Strong, being duly sworn, in open court, this 10th day of September, A. D. 1901, depose and say that we were present at the execution of the last will and testament of John C. Larwill, deceased, hereunto annexed; that we saw said testator subscribe said will, and heard him publish and*508 declare the same to he his last will and 'testament, and that the said testator at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint; and that we signed the same as witnesses at his request, and in his presence, and in the presence of each other.
‘ ‘ S. Brainard Leiter.
“L. A. Strong.
“Sworn to and subscribed in open court the day and year first above written.
“R. Brinkerhoee, Jr.
“Probate Judge.
“In the State of Ohio, Richland County:
“We, S. Brainard Leiter and H. Scattergood, being duly sworn in open court this 10th day of Sept., A. D. 1901, depose and say, that we were present at the execution of the codicil to the last will and testament of John C. Larwill, deceased, hereunto annexed; that we saw said testator subscribe said codicil and heard him publish and declare the same to be a codicil to his last will and testament, and that the said testator at the time of executing the same was of full age and of sound mind and memory and not under any restraint and that we sign the same as witnesses at his request and in his presence and in presence of each other.
“S. Brainard Leiter.
“H. Scattergood.
“Sworn to and subscribed in open court the day and year first above written'.
“R. Brinkerhofe, Probate Judge.
“The State of Ohio, Richland County, ss.
“I, Rocliff Brinkerhoff, Jr., judge of the probate court in and for the county, do hereby certify that the within foregoing and attached writing is a correct copy from the will record of said county now in said Pro*509 bate Court, of tbe last will and testament of John C. Larwill, decéased.
“Witness my signature and the seal of said probate court at the city of Mansfield, this 24th day of Sept. A. D. 1901.
(Seal of Court.) . .
“R. Brinkerhoee, Jr.
“ Probate Judge.
“By L. V. Snider, Deputy Clerk.
‘ ‘ The State of Ohio, Richland County — ss.
“I, R. Brinkerhoff, Jr., judge and ex-officio clerk of the probate court within and for said county, hereby certify the foregoing to be a complete and true copy of the last will and testament of John C. Larwill, deceased, as the same remains on file and record in said court, together with the orders of said court thereon, including the order of probate thereof, and the testimony of witnesses to prove the same, as recorded in Record of Wills, Yol. 13, p. 257.
“Witness my official signature, and the seal of said court, at Mansfield, Ohio, this 25th day of Oct. A. D. 1901.
“(Seal of probate court of Richland county, Ohio.)
“R. Brinkerhoee, Jr.,
“Judge and Ex-officio Clerk of the Probate Court of Richland County, Ohio.
“The State of Ohio, Richland County — ss.
“I, R. Brinkerhoff, Jr., sole and presiding judge of the probate court in and for said county and State, the same being a court of record in said county, do' hereby certify that R. Brinkerhoff, Jr., whose genuine signature is attached to the foregoing signature is and was at the time of signing the same, judge of said Probate Court and ex-officio clerk thereof, and as such, full faith and credit are due his acts, and that the above and foregoing certificate is in due form of law, and made by the proper officer.
*510 “In witness whereof, I have hereunto set my hand this 25th day of Oct., A. D. 1901.
“(Seal of probate court, Richland County, Ohio.)
“R. Brinkerhoee, Jr.,
“Judge of Probate Court within and for said County and State aforesaid.
“State of Missouri, County of Jackson, ss.
“In the Probate Court of Jackson County, September Term, 1901.
“I, H. P. Hersperger, clerk of the probate court of the county and State aforesaid, hereby certify that the foregoing instrument of writing, purporting to be a duly authenticated copy of the last will and testament of John C. Larwill, deceased, late of the County of Richland and State of Ohio, as proved and admitted to probate in said county and State, was on this day filed herein for record; and the court here having examined the same, and the proofs and certificates thereto attached, finds that the same was executed and proved according to the laws of this State, and now admits the same to record herein, in the same manner as wills executed and proved in this State.
“In witness whereof, I have hereunto set my hand, and affixed the seal of said court, at my office, in Kansas City, this 4th day of November, A. D. 1901.
“(Court Seal.)
H. P. Hersperger, Clerk.”
The judgment of probate and appointing administrator with the will annexed in Jackson county, Mo., are as follows:
“September Term, November 4th, 1901.
“In the matter of the estate of John C. Larwill, deceased. No. 5643.
“Now on this 4th day of November, 1901, comes Joseph H. Larwill, and presents to this court a duly*511 certified and authenticated copy of the last will and codicil thereto of John C. Larwill, deceased, and it appearing to this court that the said last will and codicil was executed and proved in accordance with the laws of this State and that said Larwill died seized of real estate in the City of Kansas, County of Jackson, and State of Missouri.
“It is therefore ordered and adjudged that the said exemplified copy of the last will and codicil and the prohate thereof he filed and recorded as domestic wills are filed and recorded; that said Joseph H. Larwill he and he is hereby appointed administrator of the estate of said John C. Larwill, deceased, with the said will annexed; that he enter into and file in this court his bond as such administrator with the will annexed, in the penal sum of ten thousand dollars, and the said Joseph H. Larwill now presents his bond conditioned according to law with National Surety Company as surety, which said bond is by the court approved. ”
The testator left no children and no sister, but left surviving him his widow, Susan M. Larwill, and one brother, Joseph H. Larwill, who lived in the State of Montana at the time of the testator’s death.
After the testator’s death Joseph H. Larwill went to Ohio, and, at the suggestion of the defendants Oliver and Smith, executors in Ohio, went to Kansas City to make that place his residence, and was appointed administrator with the will annexed of said testator.
The testator’s brother, William, mentioned in the will, died before he did, leaving no descendants. His sister, Mrs. Miller, mentioned in the will, also died before the testator, leaving the defendant, Mrs. Ewing, her only heir. Mrs. Bartley and Mrs. Stevens, sisters' of the testator, were also dead, the former leaving the defendant, Julia B. Jenner, her daughter and only heir, and Mrs. Stevens left the following named chil
The argument of this case on- behalf of plaintiffs has assumed an exceedingly wide range, but the points upon which the case turns are but few, and to these we will direct our attention.
It is claimed by plaintiffs that the court committed error in admitting in evidence over their objection documents claimed to be a certified copy of the will of John C. Larwill. The objection more specifically stated is that the document purports to he certified-by R. Brinkerhoff, Jr., as judge and ex-officio clerk of the probate court of Richland county, Ohio, and the signature of said R. Brinkerhoff, Jr., ex-officio clerk, is certified by the same person in the alleged capacity of sole and presiding judge of such probate court. The probate judge was ex-officio clerk of the same court and the probate record could not have been, under these circumstances, certified by any other person, or in'any other way. These documents, as they are called, were the copy of the will and its certificate of probate in the probate court of Richland county, Ohio, where the testator resided at the time of his death, duly authenticated in accordance with the act of Congress, and, the will thereafter on the 4th day of November, 1901, filed for record in the probate court of Jackson county, Missouri, and that court having examined the same, and
But even if the will had not been admitted to probate in Jackson county, as it was executed and probated in. Ohio, in accordance with the law of this State and recorded in the office of the probate court of Jackson county, it was admissible in evidence in the same manner and with like effect as domestic wills. Our statute provides that any person owning real property in this State may devise the same by will, executed and proved according to the laws of this State. Section 4635, Revised Statutes 1899, provides that “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. ” Section 4636 provides that “any such will may be contested and annulled, within the same time, and in the same manner, as wills executed and proved in this State.” Section 4630 provides that all wills should be recorded by the clerk of the probate court, in a book kept for that purpose.” In construing these statutes in Keith v. Keith, 97 Mo. 223, it was held that a will executed and probated in another State in conformity with the law of this State, need not be proved anew here — but may be recorded here as domestic wills are required to be recorded, and when thus recorded a certified copy of such will and the probate thereof was admissible in evidence in this State. [Drake v. Curtis, 88 Mo. 644.]
But plaintiffs insist with much earnestness that the claim of defendants that John C. Larwill is proved
As was said in Stevens v. Larwill, 110 Mo. App. 1. c. 159, ‘ ‘ The suit for partition cannot be regarded as a contest of the will. The will was duly probated and can be contested only by a proceeding in the manner required by sections 4622 and 4636, Revised Statutes. Such a proceeding has been held to be the exclusive remedy for contesting a will once admitted to probate and that its validity cannot be attacked in a collateral proceeding. [Jourden v. Meier, 31 Mo. 40; Stowe v. Stowe, 140 Mo. 594.]”
The judgment is clearly for the right party, and, the record being free from substantial error, it should be affirmed. It is so ordered.
