146 Mo. 333 | Mo. | 1898
Lead Opinion
This is an appeal from a judgment of the circuit court of St. Charles county, sustaining a demurrer to plaintiff’s amended petition.
On or about the fifth day of May, 1895, Benjamin A. Alderson late of said county, deceased, departed this life leaving surviving him as his only heirs at law, his children the plaintiffs Fannie A. Durrell, Anna M. Weems and R. F. Alderson, and the defendants David P. Alderson, Samuel B. Alderson, Bettie Gr. Watkins, William A. Alderson and Mabel H. Alderson.
Afterwards on the fifteenth of May, 1895, an instrument in writing was duly admitted to probate in the probate court of St. Charles county, as the last will and testament of said deceased, as follows:
“Know all men by these presents, that I, Benjamin A. Alderson, of the city and county of St. Charles and State of Missouri, declare the following to be my last will and testament:
“ First.
“I desire that all my debts be paid as soon as possible.
“Second.
“I give and bequeath to my beloved wife, Mary L. Alderson as her own absolute property, all my furniture, bedding, carpets, stoves, pictures and kitchen utensils, at my residence at the time of my death. I' also give and bequeath to my said wife, for and during her natural life, my home place, being my residence, and the lots connected therewith, on 6th and Perry streets, in the city of St Charles; in lieu of any dower or' any interest my wife has or might have in any of my real and personal estate, I also give and bequeath to my said wife, Mary L. Alderson, for and during her natural life, annually, the sum of six hundred*338 dollars, so that my executors shall pay her at the end of every six months the sum of three hundred dollars.
“Third.
“All of my personal estate, except such as is herein bequeathed to my wife, shall go and belong in equal parts to my children, Anna M. Weems, S. B. Aider-son, Bettie G-. Watkins, Fanny A. Durrell, R. F. Alderson, Mabel H. Alderson, the wife of my son W. A. Alderson, and W. Elmira Alderson, the wife of my son D. P. Alderson, excepting the sum of one dollar to be given to each of my two sons W. A. Aider-son and D. P. Alderson.
“Fourth,
“My executors shall take charge of, rent out and have exclusive control over my lands in the Point prairie and also my lands in the Cul de Sac'bottoms, below the city of St. Charles, and shall pay the above six hundred dollars annually out of the income thereof, to my said wife, Mary L. Alderson; and the balance of said income, less whatever my executors may think necessary to meet current expenses, shall each year be given to my said children equally, except to my sons, W. A. Alderson and D. P. Alderson, whose wives shall be entitled to receive and retain their shares respectively, each one seventh. After the death of my wife all my real estate shall go and be divided as follows: To Anna Weems, S. B. Alderson, Fannie A. Durrell and R. F. Robinson each one seventh thereof; to Mabel H. Alderson, wife of my son W. A. Aider-son, and W. Elmira Alderson, wife of my son D. P. Alderson, each one seventh thereof for her sole use and benefit; to my executors one seventh thereof in trust for my daughter, Bettie Gr. Watkins, and after her death then said one seventh to be divided among*339 her children then living; my executors to have full control over and disposition of said one seventh interest, to sell the same and re-invest the proceeds thereof, the income and proceeds of said interest,-to be given to my daughter from time to time, for her support, as my executors may deem advisable and necessary.
“To my sons, W. A. Alderson and D. P. Aider-son, I give no interest in my real estate. But it is my wish that my executors shall remain in control and manage all my real estate until all of them agree to sell the same or any part thereof, excepting my residence and lots connected therewith, in St. Charles, Missouri, bequeathed to my wife, aforesaid. I authorize my executors to at any time sell and convey all or any part of my lands and real estate, excepting my said residence and lots, with the same force and effect as I could have conveyed the same, and the proceeds of any and all such sales shall be divided according to the interest and rights of the legatees as herein provided; provided that my executors are charged with the payment to my wife of said sum of six hundred dollars annually during her life.
11 Fifth.
“I hereby appoint my sons, D. P. Alderson, R. F. Alderson and S. B. Alderson, executors of this my last will and testament, with the right of the majority to act, and request that they be not required to give bond as such executors.
11 Sixth.
“I hereby revoke all former wills.
“In witness whereof I have hereunto set my hand and affixed my seal in the presence of the subscribing witnesses, this sixth day of April, 1893.
“Benjamin Alderson (L. S.)
*340 “We attest the above and foregoing will by subscribing our names hereto as witnesses in the presence of Benjamin A. Alderson, the testator, this the sixth day of April, 1893.
“D. W. Ferguson,
Albert S. Hughey.”
Afterwards on the seventeenth day of October, 1895, the plaintiff Mary A. Watson instituted this proceeding in the circuit court of St. Charles county by petition in which the heirs at law aforesaid, of the said Benjamin A. Alderson, the wives of the said William A. and David P. Alderson and the children of the said Bettie O. Watkins were made parties defendant. Afterwards at the February term, 1896, of said court and by leave thereof an amended petition was filed, in which two of said heirs at law, viz., Fannie A. Durrell and Anna M. Weems and their husbands were made parties plaintiffs, and afterwards at the August term, 1896, the petition by leave of court was further amended by interlineation, making another of said heirs at' law, Robert F. Alderson, a party plaintiff. This amended petition, to which the demurrer was sustained, after setting forth said instrument of writing, the death of the said Benjamin A. Alderson, the death of his wife before his own death, the relationship of the aforesaid parties to him, and the probate of said instrument alleges in substance that the said Benjamin A. Alderson died seized and possessed of certain real estate, described in the petition, situated in the said county of St. Charles. That on the twenty-seventh of February, 1892, the plaintiff Mary A. Watson obtained judgment against the defendant William A. Alderson in the circuit court of Jackson county at Kansas City, in the sum of $4,192.52, and on the twelfth day of Januaiy, 1893, obtained judgment against the defendant David P. Alderson in the same court in the sum of
Whether or not the court committed error in so ruling, is the question on this appeal, to be determined by ascertaining who is a person interested in the probate of a will within the meaning of our statute of wills, which provides that: “When any will is exhibited to be proven, the court or clerk may immediately receive the proof and grant a certificate of probate, or, if such will be rejected, grant a certificate of rejection.” R. S. 1889, sec. 8882. “If any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and, by petition to the circuit court of the county, contest the validity of the will or pray to have a will proved which has been rejected, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, or if neither party require a jury, by the court. ” Ib., sec. 8888. “The verdict of the jury or the finding and judgment of the court shall be final, saving to the court the right of granting a new trial, as in other cases, and to either party an appeal in matters of law.” Sec. 8889. “If no person shall appear within the time aforesaid, the probate or rejection of such will shall be binding, saving to infants ... or persons of unsound mind, a like period of five years after their respective disabilities are removed.” Ib., sec. 8890.
At common law jurisdiction of the probate of wills was exercised by the ecclesiastical courts, and the executor of a will admitted to probate in common form, might at any time within thirty years be compelled, by a person having an interest to prove it in solemn form, and even when so proven the probate was not conclusive so far as the disposition of real estate was concerned over which the common law courts held that the ecclesiastical courts had no jurisdiction, hence in an action involving the title to real estate in the latter courts, the validity of a will might be contested by the party whose title would thereby be determined, although the will had been proven in solemn form. Hoe v. Nelthrope, 3 Salkeld, 154; 2 Swinburne on Wills, part VI, sec. XIV and notes; 1 Woerner, Admr. Law, sec. 215. To wipe out this distinction and make such probate conclusive as to wills disposing of real as well as personal property, was obviously the purpose and is the effect of the statute. In doing so, was it the intention of the legislature to deprive any person of the right to contest the validity of a will who would have had that right under the former law? Surely not. Hence, when the question under consideration first came up in this country, under the statute of Massachusetts of the year 1817 (Chp. 190) having the same purpose and effect as the Missouri statute, in the case of Smith v. Bradstreet, 16 Pick. 264, decided in 1834, the Supreme Court of that State held that an attachment creditor, having by such attachment a lien upon the real estate of the heir at law, had the right to contest the validity of a will by
If the common law still prevailed here on this subject; in an action in ejectment under that law between such a creditor and the heir or devisee for possession of the land after his lien had been ripened into legal
In 1891 this' question came before the Supreme Court of Minnesota in the case of In re Langevin, 45 Minn. 429, in which that court under a similar statute, following the Supreme Court of Massachusetts, held that, “The creditor in a judgment against the heir of one dying seized of real estate, which in the absence of a will, would pass to his heir, has an interest that entitles him to contest the probate of a proposed will of deceased, which if probated, will defeat the lien of his judgment.” These two cases are the only cases that have been found in which this question has been passed upon by the courts of last resort in this country. The question may have been in the ease of Shepard’s Estate, 170 Pa. St. 323, decided by the Supreme-Court of Pennsylvania in 1895, as appears from the statement of the case in the court below, 11 Pa. Co. Rep. 133, but if so it was not decided, either by the county court or the Supreme Court. In the language of the judge who delivered the opinion in the county court, “The question for solution is, has a creditor of an heir, who takes nothing by the will of his ancestor, standing to question the validity of the ancestor’s will?” That court decided that question in favor of the creditors, and upon their appeal to the Supreme Court that court decided that question against the creditors, and said nothing further on this subject.
That decision falls far short of reaching the question in hand, and with it we have no fault to find, for it is conceded on all hands, that one who is simply a creditor of an heir of a deceased person, has no direct
Concurrence Opinion
I concur in the holding that the judgment of the circuit court should be reversed, and the.cause remanded with directions to overrule the demurrer and cause an issue to be made up and tried. But I place my concurrence upon the ground that Fannie E. Durrell, Anna M. Weems, and R. F. Alderson, children of Benjamin A. Alderson, deceased, are persons interested in the probate of the will. I think the circuit court erred in overruling the demurrer and in holding that they take the same interest under the will that they would have received if there had been no will. Under the will the widow is bequeathed absolutely all the furniture, bedding, carpets, stoves, pictures and kitchen utensils, and a life estate in the home place or residence and the lots connected therewith. Without the will the property would have descended to the heirs, subject only to the widow’s allowance, quarantine and homestead rights. For this difference in their rights I think the three heirs, who are plaintiffs, have a right to contest the validity of the will.
I do not agree to so much of the opinion as holds that Mary A. Watson, a judgment creditor of William A. Alderson, and David P. Alderson is a person interested in the probate of the will, within the meaning of section 8888, R. S. Mo. 1889, so as to entitle her to maintain this action. In my opinion there is no difference in principle between the rights of a judgment creditor and those of a general creditor in this regard. The only difference between them is the procedure necessary to reach the interest descended to the debtor heirs. The judgment creditor can proceed at law, by having an execution, presently, issued and the heir’s interest seized and sold, while the general creditor can proceed at once”, in equity, and be subrogated to the
Without our statute of descents, or the common law on that subject, a child would have no right to any portion of the estate' owned by the father at the time of his death, and without the statute of wills no man would have a right to direct the disposition of his property after his death. The first was intended for the peculiar benefit of the heir, not of a creditor of the heir. The second was to enable him who had earned or acquired property to dispose of it as to him seemed best, and the interest of the heir was not a controlling factor in the adoption of the law, but being in derogation of the rights of the heir under the statute of descents, he was given the right to contest the will to the end that he might take as heir and not as legatee. In my judgment the legislature intended this to be a right personal to the heir, and not to confer any rights upon a creditor of the heir.
The fact that this is the first case of this character that has reached this court under this statute of wills, which has been a law ever since Missouri was a territory, is persuasive that the concensus of opinion of the bar has been against the existence of such a right in a creditor of an heir, for it is inconceivable that this is the first time the conditions here presented have arisen in our State. Venable v. Railroad, 112 Mo. l. c. 125, and cases therein cited.