*1 40 Mary Wiggins Perry al., et al. Appellants.
Ella L. Lois 119 (2d)W. S. One, September 1938.*
Division Opinion September *NOTE: .Term,. 19.36, 12, 1936; filed at November rehearing filed; September Term, motion motion overruled at No- 23, 1937; vember to transfer fijed en motion Banc and overruled Court 14, 1937; modify opinion filed;'motion December motion to recall over- September Term, 1938, September 17, ruled at 1938.- Jr., Bakewell, appellants. Paul *2 respondents. Shepley for
Nagel, Kirby, & Orrich *3 Circuit Court from order of BRADLEY, appeal is C . This by said tunc, refusing to eprreet, of St. Louis (cid:127) see original cause, in*the opinion affirming court. For original (Mo.), W. 815. 271 S. Perry al. al. Wiggins et November Liggett died who of John E. construe suit was to *4 parties there-con to out sets opinion referred and Wiggins, here, viz.: Ella L. concerned cerned, are of whom Ken Liggett Perry) Elizabeth and (formerly Mary McIntosh Lois daugh surviving him three Scudder). left Testator (formerly nard Cora Wiggins. L. and Ella Fowler, Dolly Kilpatrick L. ters, Cora B. Kilpatrick L. Dolly and July without B. Fowler died McIntosh, Mary Lois daughter, now August 10, 1928, leaving a died Kennard, who is Liggett now Elizabeth granddaughter, and - Lois Kilpatrick. Mary L. Dolly daughter daughter of of deceased the movants Liggett Kennar'd are Elizabeth McIntosh and Wiggins opposes. L. order, Ella and the nu/tic tunc' motion-for as'the the motion proponents to the of We shall refer hereinafter part. the most Ella'L.-.Wiggins respondent for to and movants sisters, Cora respondent her two suit, and In ’ that' the terms of Kilpatrick, L. contended Polly B. and Fowlér them, on while to property fee' in the devised they took the daughters-took that the three hand, it the other was-contended ' his"will, pay- testator clause directed first of a-life estate. In 44. expenses. tbe In second debts,, ment funeral and of administration' 1909) -certain'bequests May 15, (who he made clause to died his-wife- statutory, of. he devised-to third clause
in'lieu- allowances. - In Liggett Myers Tobacco his three & sons-in-law certain stock. in. the es Realty all real Company Liggett Company, and of the :and his (cid:127) n companies cash, coupons, tate bonds,- notes, and all stocks of other disposed byof corporations, other not property and all otherwise (cid:127) < i will— purposes, nevertheless, following “Intrust, for uses and wife, Liggett, my to J. say, promptly pay is -to over Elizabeth to said dower life, in lieu* for- her natural of all during* term of earnings, in my- rents, .all and dividends made estate*, profits, -income Liggett Company, my Realty stock on of the declared said said com- when same any as -and shall at be- said received - - pany by my trustees. said my Lig- “After of wife-then stock of the my death said said gett Realty under Company be further by my shall held trustees said Dolly L. my daughters, for sole benefit this trust and behoof of Kilpatrick, Fowler, Kilpatrick, wife of -Cora wife said Claude B. of Scott, John their Fowler, Scott, and Ella D. wife of to said Mitchell separate use, by curtesy, interest, sole and' free estate and-clear them, present any or control of or this said future or. husband of them, during daughters either my the natural lives of said equal portions, alike, share and with remainder as to share over one, body aforesaid, undivided share each of the the heirs my daughters stirpes property, per, each their absolute capita; per any my not but should die issue then portion bequeathed realty company of said stock herein go to her for daugh- life shall survivor my and survivors of equal ters in portions over, portion, remainder to such as. to the heirs of -the bodies leaving such as shall issue of their dies absolutely, bodies alike, stirpes.” per (Italics ours.) and share rendered, according the circuit court was respondent’s contention,. 22, 1923, according June but con- movants, tention of rendered December was. The portion part"of the judgment' actually entered clerk on record, sought now corrected, follows: is as it adjudged “Arid is further upon decreed .court that the death of said B. Fowler,.said property go shall vest absolutely, stirpes per capita; in her then surviving any; if *5 but issue,- in default of such go said property fol- shall -as * - , . lows : (1) If sisters, both her Wiggins Ella L.- and . Do]ly Kilpatrick L. shall survive-her, .then an undivided one-half interest property in’said go..to, shall vest- in each said and: of sisters for her on and them, of either of . death undivided onedialf interest therein of-the* upon go one her dying .life, so vest in the for and shall to and survivor absolutely yegt. property go,;to, her death whole shall of said Dolly L. Wiggins,,and' in the then -Ella' L. ,,and. Kilpatrick, share-alike, stirpes per capita.” not,,per share.and - n , ,,. . : (Italics ours.) sought The of. all that by correction movants- elimination portion paragraph (1) above after last word in italicized .body,” words, heirs insert “the of her so lieu-thereof paragraph (1) read: , so corrected ...... when wih ... (1) sisters, Wiggins L..Kilpatrick, Dolly “If L. both her Ella her,, .property shall survive then an one half interest undivided in. each, and, go on the death .life, shall and vest said sisters her them, of either of half interest therein of one so undivided the, - dying g'o body. shall heirs of vest to The con- clerk, as entered on record Wiggins, provisions Dolly Ella respecting tained L. L. identical concerning they Kilpatrick, should die as set out above B. Fowler. - original Judge Miller, The cause was Franklin tried and was argued 17, 80, 1921, on December December submitted and on by, placed stamped files filed the clerk was there n n following , memorandum: construing Diggett; E. de-
“Finding-by court John ceased, .only take life .effect estates under plaintiffs heirs, if contingent in favor the. remainders over per stirpes and not plaintiffs respectively, any, bodies of decree;- decree to be form of draft capita-, defendants to counsel approved court upon when and-filed. entered said draft Miller,-Judge.” (Signed) Franklin of the upon minute record no minute of There was the. docket, at the time judge’s upon the.memorandum clerk 19, 1923, January until- appeared cause Nothing filed. further granddaughter suggestion birth-of a at was made which n L; upon, suggestion the here, Wiggins, respondent Ella recently aside, born submission, was set on December- granddaughter party by interlineation amendment made defendant process served returnable petition, ordered and guardian Term, litem was served and ad February Process course, an- was, appointed-for the new defendant'and filed in-due June, (the 22, 1923, plaintiffs recites that The record of swer. defendant reply, answer-of the new that the sisters) filed ‘‘ of, evidence, submitted, hear proceeded cause draft Then here) appeal followed (in question filed.” this court. in the circuit court in the cause entry next March record, “Judgment on the which time there was.-written this,court 1.6, 1925, opinion, by when the March was.date
affirmed...” *6 !46 was' shows April 1925, handed- 27,' down. the circuit court ' ' opinion
“mandate and filed.” Movants, in the stated, as that contend final original '30,1921, cause-was’ December whén memorandum rendered filed, was that submission. and. cause was not thereafter under appeal subsequent term memorandum filing was at a manifestly, if accepted, and movants’ was valid view be there- appeal Un opinion by this court and no court. authoritative this appeal all, der our the term practice taken, during must be if at 1929, 1020, which the final is rendered. R. S. [See. Ann., Mo. p. nothing Stat. sec. 1020, There was on the record showing 30, that was December such rendered being so, the will rodé usu advisement, construction suit under as ally expressed, until set 1923. January the submission was aside "We,therefore, consider movants’ motion the nunc tunc order (cid:127)on theory that rendered, or decree was whatever on June Respondent here contends that movants chal position are in no-
lenge the decree the circuit court in construction suit. n Onthis point (1) (of it is contended: That parties movants de in right fendant will suit) construction had the make suit, same concerning will, contention that the construction of the as made in the motion for the order, tunc but did not do so, having then made such are estopped contentions movants precluded decree; from attacking (2) now that movants had right appeal from construction of the appears will so, but did not are do therefore bound con struction decree; (3) will in the that wrong court was not ly inadequately (a by movants) informed contention made ('for plaintiffs counsel suit) and defendants in the vsdll construction concerning part that in question; the decree (4) here that mov ants, between time of the affirmance decree in will suit, construction the filing of the motion for nunc pro or der, filed, against separate have respondent, suits, one (by movant, McIntosh) in the Federal Court at Louis, St. other (by mov ant, Kennard) in the Louis, Circuit Court St. both of which suits ‘i question grounds attack the on various including the con tention that the circuit erroneously held sisters of Mrs. Fowler to have successive life estates in the share, Fowler pending, these suits because are movants precluded are motion; (5) relief on their McIntosh, that movant on February 1930, brought suit 'Federal Court at St. Louis, against respond ent title to the B. to determine Fowler share under the will, mak ing the same contentions as are made the motion to the construc that in that it suit, tion was held that the petition suit “warranted the decree rendered” (the that-said decree res -adjudicata; appealed Federal case was question (2d) procedure, and the on Fed. affirmed ,movants 622); (6) “stood-by estopped they- are because *7 by inactive” after the affirmance.of the construction decree this will permitted court and the distribution in with decree. accordance by respondent point. All these -the Mov contentions are beside ants, pro order, in the motion for the nunc that tunc- make no claim they by decree, are not the no innocent third person bound involved, might implied, be as from contention. There the sixth place by could be no for such contention movants motion. in such'a is, they brief, Their contention that -the decree so state in their or as entered is “not which was rendered” the by court, the by circuit not the affirmed this' court. and is In effect, judgment of the circuit movants contend that the upon the -tomean the court, the construed will that one affirmed this to Fowler,' passed her share the two of Cora B. death life, upon that equal surviving proportions for sisters B. the interest of Cora Dolly portion of Kilpatrick, of L. death B. Cora upon of Kilpatrick to Mrs. the death passed Fowler that Wiggins, L. respondent, Ella Fowler, passed movants and not to record; decree, movants, entered life, then to her for construes. suit, a the will construction was, at Movant Kennard litem, guardian ad suit represented said minor and ward, his lawyer. Reber, for Mr. in his answer Rebér, a Charles S.
alleged: Ella petition defendant states that answering
“Further said Kilpatrick, daughters of Wiggins, Dolly L.- L. B. Fowler and life estate testator, Liggett, said will a .given by John E. -are his each) bequeathed to only thereby in the share of his estate devised and daughter to her upon in fee the death with remainder over per stirpes per capita; and, in surviving issue, and not case there sur- issue)', remainder said share (surviving be with as to .none daughters equal with portions vivor survivors or upon remainder over fee last survivor of said death daughters, share of said stirpes.” alike, per appears guardian placed
So it that the litem of movant Kennard ad answer, appears upon in his in -the same construction evidence) (from pre- Mr.' appears also oral decree. It Reber upon' circuit court pared the decree was entered record. although duly process in the McIntosh,
Movant served appearance. suit, made judgment, subsequent term, “A at a can nunc upon papers made evidence' be furnished files in the record, cause, something book, or or clérk’s minute on or 48 ,’s cases Wand, c.
judge .docket. v. 170 Mo. l. [Burnside Luyties Realty 427; Clancy v. cited, 71 62 R. there S. W. L. A. Hart Holtcamp rel. v. Co., (2d) 914; 321 ex Mo. 10 W. State S. “A (2d) l. c. al., Judges, 330 S. W. Mo. 386, mann clerical mis entry employed can be correct- tunc- entry invoked misprision the-clerk.”-- cannot or Such take judge, cor or.oversight used to “correct a nor-be mistake of. judicial different from that errors, rect nor render a- actually though judgment actually rendered rendered, even judge to render.” v. intended [Burnside Luyties; Hartmann, ex v. Wand; Clancy State rel. supra.] in the will con justify In correction of order to by. movants, support there-must be struction suit as contended from the or pleadings, therefor hr minutes, kept by notations the clerk’s or from minutes from- judge docket, proper paper or from or file in on his some *8 judgment and opinion case In of this court some situations the Pickel, 197, the l. 158 208, constitute mandate. v. 251 Mo. c. [Pickel 8; Jorndt, 179, 190, Keaton v. 259 Mo. l. S. S. W. c. 168 W. also, See, Ragland, ex Co. State rel. McGrew al. 339 Mo. Coal (or W. 452, 97 S. The (2d) commonly called mandate what is mandate) the of this court in construction suit recites: again aforesaid, “Now at come day by this the re parties their spective attorneys, being .sufficiently the court and here now advised premises, concerning adjudge of and doth the consider that the aforesaid, by in form aforesaid, Circuit Court of City Louis, rendered, things affirmed, of St. be in all and stand effect; respondents full against in force and and that recover appellants charges expended the said costs herein their and.have filed.) (Opinion therefor execution. must, Support It be that if -for conceded the motion for the nunc pro exists, tunc in it must correction be memorandum by opinion certainly this court. There is nothing on the or in clerk’s the judge’s minutes or on docket to support sought. already correction ''As tunc stated, the memo stamped 30, randum was .filed December but entry no minute filing appears record, its while challenged decree was 22, 1923, filing filed June and its entered of However, record. we think, that may this memorandum be --(for considered whatever it is worth), under obtaining (Johannes the situation Regis v. St. Realty Co., App. 43, 1138), & Inv. 196 Mo. 188 S. W. along the opinion with this, by question court. The then Does is: court, mandate of this with the memorandum, considered constitute such record and files support sought the nunc correction as will ? might We state was that the memorandum not- i found the files of the will t, movants, counsel-for sui until late December, in
49 disposition of the final early January, or in until filing of in not until after reported (2d) ease 57 Fed. one in the Federal pending, now
the two suits above mentioned and Louis, at St. Louis.' one the Circuit Court Court St. in court, commonly called is It that this will be noted what aforesaid, aforesaid, in form mandate, “the adjudged that rendered, all Louis, be City of St. the said Circuit Court of can affirmed, force effect.” things in full There stand mandate, what or is to in the no doubt about what referred There commonly the mandate. called judg court, this the will construction suit before con 23, 1923. The memorandum ment of the circuit court of June sisters) three take plaintiffs (the strues the “to effect contingent life with remainders over estates under said heirs, any, respectively, per favor if plaintiffs bodies of stirpes.” opinion reads: court, S. W. l. c. objects residuary view, (testator)
“With placed these his entire he manage ample powers trustees, estate in the with hands his three ment, specific directions to over income from pay and with designated e., Liggett Realty portion of his the trust estate —i. from wife, Company his of her during stock-—to ‘for and the natural term life,’ and after her trust bene death to hold said stock in ‘for the sole fit my daughters, and behoof of in equal portions, share and alike, during my daughters, the natural lives daugh remainders over my heirs of each of bodies ters, as their absolute property, stirpes per capita;’ if and not pay income such share his daughter life,’ ‘for remainders over, ‘with to such portion, body heirs of the of such as shall die leaving issue *9 of their absolutely, bodies share share alike, stirpes.’ (and quoting And apparently adopting) Mr. brief of in Reber will (271 826) construction suit the court S. W. l. c. said: respectfully “We therefore submit that the of John E. Liggett, according construed its purpose, true intent and creates
life daughters, estates in his contingent with in remainders over respective bodies, heirs of their lineal descendants daughter only of each who answers description of such at heirs the time of remainders, her death take such that the trial ’’ clearly right ruling. in so again Then quoting court says, adopting from brief of Reber) (Mr. counsel : “. . . any daughters should of his die ‘then portion,’ without income, issue not of (for as counsel sisters) three have believe, would the court but ‘of realty com- pany bequeathed stock herein to her for life go shall survivor my daughters equal and survivors portions life, over, portion, remainders to such to the heirs of the bodies
n absolutely,
such as share and leaving shall die their issue of bodies stirpes. alike, per . .” l. S. W. c. [271 pres (set The suit out the will construction covers, subjects fifty-three record), pages, ent many covers not Movants, brief, mentioned in the their refer to memorandum. apparent this memorandum as the the trial It is judgment of court. prepared that no could have covering decree the issues and questions province It involved from memorandum. is our question will. to construe the here for determination our is whether not movants are entitled to have construction pro Considering opinion corrected tunc order. together expressions .and the memorandum there may isolated opinion tending to support for by mov contended ants, opinion, but from the is it clear that the court was attempting specifically rule interest as whether or not the aof daughter dying surviving pass daugh would successively pass ters and would not possession of a daughter deceased until the death of the daughter. last The chief question before the court whether the took a life estate As we pointed out, or a fee. have supra, a nhmc cannot order be invoked “to correct a mis oversight” take or judge, judicial nor to correct error, nor “to render a though different actually rendered, from that even actually was not the rendered ’’ judge to render. intended It is our conclusion that denying trial court correction, nunc tunc, in the will construction suit on the motion of affirmed, movants should be is it so ordered. Ferguson Hyde, CC., concur. PER foregoing opinion by CURIAM:—-The Bradley, C., adopt- opinion judges ed the court. All the concur.