Hines v. Hines

147 S.W. 774, 243 Mo. 480, 1912 Mo. LEXIS 373

• Court: Supreme Court of Missouri
• Decided: June 1, 1912
• Status: Published

Opinion

BROWN, J.

Action for partition of real estate in Caldwell county, Missouri. From an interlocutory judgment of the circuit court of that county determining the interests of the parties and ordering the real estate sold, the defendants Thomas Wesley Hines, William H. Hines, Lilian Hines and Hamilton Savings Bank appeal.

The plaintiffs and defendants are the collateral heirs of one Matilda A. Higgins, who died in the State of Arkansas on February 13, 1899, seized and possessed of about 840 acres of land in Caldwell county, Missouri; also real and personal property in Carroll county, Arkansas.

The petition sets out the interest of each of the parties to the action. Some of the defendants answered, admitting the allegations of the petition, and consenting that partition be made as prayed.

Defendant Thomas Wesley Hines filed a separate answer, claiming sole ownership of 320 acres of the Missouri land, hereinafter designated as the Kidder farm, through a will executed by Matilda A. Higgins, and admitted to probate in the State of Arkansas. Defendants William H. Hines and Lilian Hines also filed separate answers, claiming to be sole owners of about 500 acres of land in Missouri, devised by said will of Matilda A. Higgins, and known as the Shoal Creek farm.

Said separate answers contain a copy of the will of Matilda A. Higgins, and allege that a copy of said will, together with a judgment of the probate court of Carroll county, Arkansas, admitting the same to probate, duly authenticated, was filed with the recorder of deeds of Caldwell county, Missouri, on May 2, 1902.

Said separate answers admit that Emma Sloan, one of the plaintiffs in this action, instituted a suit in the circuit court of Caldwell county, in the year 1902, to contest the aforesaid will of Matilda A. Higgins; that a final judgment was entered in said action, annulling said will on account of the lack of testamentary capacity of the deceased. Said separate answers, however, allege that the judgment of the circuit court of Caldwell county, annulling the will of Matilda A. Higgins, is void because:

(1) The action to contest the will was barred, because not instituted within three years after the will was probated, as required by the laws of the State of Arkansas.

(2) That the circuit court of Caldwell county, Missouri, possessed no jurisdiction to hear and determine an action to contest a will duly probated in another state;

(3) That some of the plaintiffs and defendants (hereinafter named) have accepted bequests under the terms of said will, and are therefore estopped from denying its validity;

(4) That all of the persons interested as devisees and legatees under the will of Matilda A. Higgins, were not made parties to the said contest; and

(5) That as Emma Sloan was the sole plaintiff in the will .contest, the judgment in that case, if valid, could only operate to set aside the will as to her, and not a,s to the other heirs of Matilda A. Higgins.

The defendants Hamilton Bank and Crosby Johnson in a separate answer, allege that after the authenticated copy of the will of Matilda A. Higgins was filed in the office of the recorder of deeds in Caldwell county, Missouri, and before any suit was begun to contest the same, the defendant Thomas Wesley Hines borrowed from said bank the sum of $2500', and executed to Crosby Johnson, as trustee, a deed of trust upon the Kidder farm (sought to be partitioned), to secure said loan; that said loan has not been paid, and that said bank and its trustee, Crosby Johnson, were not made parties to the aforesaid suit of Emma Sloan to contest the will of Matilda A. Higgins; therefore, their interests are not bound by the judgment in said action.

Plaintiffs’ reply alleges that all of the defendants except the Hamilton Bank and Crosby Johnson, trustee of said bank, were made parties to said will contest; that said bank and Crosby Johnson were not necessary parties to said action; that said will of Matilda A. Higgins was set aside and annulléd at the July term, 1903, of the circuit court of Caldwell county; that all bequests under said will of Matilda A. Higgins which have been received by any of the parties to this action, were derived from personal property of Matilda A. Higgins in the State of Arkansas; and that the acceptance of snch bequests does not estop any of the parties to this action from claiming the real estate of deceased situated in Missouri.

It is conceded by the pleadings that the action of Emma Sloan under which the will of Matilda A. Higgins was contested, and annulled, was appealed to the Supreme Court, and that the judgment of the trial court was affirmed for the failure of appellants in said action to prosecute said appeal in accordance with the rules of this court. Such evidence as is necessary to a full understanding of the casé will be recited in our opinion.

OPINION.

The first point we must consider is the legal effect of the suit of plaintiff Emma Sloan under which the will of Matilda A. Higgins was annulled.

Did the circuit court of Caldwell county, Missouri, have jurisdiction of the subject-matter of that action, and did it acquire jurisdiction of the parties ?

The issues joined involve a construction of section 569, Revised Statutes 1909, authorizing the contest of wills admitted to probate in other States in the same manner as wills executed and proven in this State.

Does this section, as defendants contend, conflict with section 1, article 4, of our Federal Constitution, prescribing that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State? We do not understand that this section of the Federal Constitution is of universal application.

While the decisions of this court show we have given full faith and credit to judgments rendered in other States where such judgments were rendered by courts having jurisdiction of the subject-matter and of the parties whose interests were adjudicated (Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223), we think our General Assembly was acting within its proper sphere when it enacted section 569, supra, which provides that wills executed and proven in other States, attempting to convey land in this State, may be contested in the courts of this State when an attempt is made to put such wills in force here by placing them on the land records of our State.

This must necessarily be true, for the reason that every State has full and exclusive power to determine by what methods real estate situated within its borders shall be conveyed or devised, and how the same shall pass by inheritance. [Schulenberg v. Campbell, 14 Mo. 491; Richardson v. De Giverville, 107 Mo. 422; Gaven v. Allen, 100 Mo. 293; Keith v. Keith, 97 Mo. 223; Lucas v. Tucker, 17 Ind. 41; Hughes v. Hughes, 14 La. Ann. 85; Sevier v. Douglas, 44 La. Ann. 605; White v. Howard, 52 Barb. (N. Y.) 294; Kessler v. Kessler, 3 Pa. Co. Ct. 522; Story on Conflict of Laws (8 Ed.), Secs. 424 and 474 ; 2 Wharton on the Conflict of Laws (3 Ed.), par. 285-7.]

“The general doctrine is in accord with the principle which has become established in all civilized countries that real property is regulated in its descent, as in its tenure and transfer, by the lex loci rei sitae.” [14 Cyc. 21 b.]

We also hold that the Statute of Limitations governing the contesting of foreign wills does not begin to run until a duly authenticated copy of such foreign will, together with the probate thereof, is recorded in the land records of Missouri, where the land devised is situated. This, for the obvious reason that neither such foreign will nor the probate thereof in another State would be constructive notice to any citizen of Missouri, until such copy is filed here. [Keith v. Keith, 97 Mo. 223.] It is also obvious that the Missouri Statute of Limitations as to the contest of wills g’overns in suits for the contest of foreign wills. We arrive at this conclusion from the well known principle of law that lands in this State pass directly to the heirs of the deceased; and the executor, whether foreign or domestic, has no right to intermeddle with such lands until such will be probated. [Cabanne v. Skinker, 56 Mo. 357; McPike v. McPike, 111 Mo. 216; Emmons v. Gordon, 140 Mo. 498; Sec. 139, R. S. 1909.]

We hold that the judgment of the circuit court of Caldwell county annulling the will of Matilda A. Higgins, is final, and the validity of such will cannot be relitigated in this action.

It would produce an intolerable condition of affairs if parties were permitted to litigate and relitigate the same facts in different actions. To suffer such a thing to be done would be to make of the courts instruments of oppression; and “the law’s delay;” considered both in ancient and modern times as one of the most aggravating evils which mankind is forced to endure, would then become utterly unbearable.

If there was a defect of parties in the mil contest, that issue could have been raised in that action; but it was not. The true rule is that all matters which could have been properly adjudicated in that action, are res adjudicaba when the same matter is sought to be relitigated in another action. [Western Tie and Timber Co. v. Pulliam, 237 Mo. 1; Smith v. Kiene, 231 Mo. 215, l. c. 233; Johnson v. Stebbins-Thompson Realty Co., 167 Mo. 325; Emmert v. Aldridge, 231 Mo. l. c. 128; Spratt v. Early, 199 Mo. l. c. 500; Miller v. Berneker, 46 Mo. 194.]

We find that the Hamilton Bank and Crosby Johnson are bound by the judgment of the circuit court in the will contest. The statute does not require the grantees of parties who have received land through a will to be made parties to a contest of such will.

The probate of the will of Matilda A. Higgins in the State of Arkansas and the filing of an authenticated copy of said will, and the probate thereof with the recorder of deeds of Caldwell county, Missouri, made out a prima facie ease of title in Thomas Wesley Hines, William H. Hines and Lilian Hines, as devisees in said will; but the title attempted to be passed by said will could not become complete or perfected in said devisees until the time had expired for contesting the same, as provided by section 569‘, Revised Statutes Í909.

Consequently, the Hamilton Bank and Crosby Johnson in taking the deed of trust from Thomas Wesley Hines, purchased pendente lite, or subject to such subseqent litigation as might be instituted affecting the validity of the will; and their title, except so much thereof as is decreed to said Thomas Wesley Hines in this action, was defeated by the annullment of the will. The doctrine herein announced finds support in the case of Hughes v. Burriss, 85 Mo. 660, and Borland’s Law of Wills and Administration, p. 128.

The contention of defendant Thomas Wesley Hines, that as no one except Emma Sloan was a plaintiff in the will contest, the judgment in that case only operates to annul the will as to her, leaving it in full force as to the other plaintiffs and defendants in this action, is wholly untenable. When a will is contested, the contest acts upon the interests of every party concerned therein, and if it is adjudged to be no will as to the plaintiff, then it cannot be valid as to anyone named in the will as devisee or legatee. [Wood v. Carpenter, 166 Mo. 485; King v. Gilson, 191 Mo. 333; Brown v. Anderson, 13 Ga. 171; Tibbatts v. Berry, 49 Ky. 473.]

The record in this case shows that Matilda A. Higgins by her will, devised to defendant Thomas Wesley Hines 320 acres of land in Caldwell county, Missouri, known as the Kidder farm. The said defendant received no further bequest or devise from said Matilda A. Higgins; and that he entered into possession of the said Kidder farm through a tenant, and collected the rents, aggregating $3071.40, and after expending $686.58 for taxes, improvements and insurance, his net income from said property was $2384.82, This was' before the will was annulled. In 1902 when the action to contest the will was instituted, an administrator pendente lite was appointed in Missouri, who took possession of said Kidder farm, and has held same ever since. Said Thomas' Wesley Hines was appointed administrator of the estate of Matilda Higgins by the probate court of Carroll county, Arkansas, and has undertaken to carry out the provisions of her will. He has collected and disbursed, pursuant to the provisions ■ of the will, most of the estate in Arkansas.

It appears from the evidence that two of the plaintiffs, to-wit, Madison Hines and Thomas W. Hines, and three of the defendants, to-wit, William H. Hines, Susan McCormick and Lilian Hines, have accepted of defendant Thomas Wesley Hines, administrator as aforesaid, bequests or devises of property made to them by the will. Defendant Thomas Wesley Hines pleads and contends that the five last named heirs of Matilda Higgins, having accepted property under the will, are wholly estopped from claiming any share of the Missouri land..

The estoppel pleaded against these five parties on account of the receipt by them of the bequests and devises of property under the will, raises- a very difficult issue and one on which the briefs in the case give us no light; nor have we been able to find a parallel case in American jurisprudence.

It is a well settled doctrine that after accepting benefits or bequests under a will an heir cannot be allowed to contest same. [Stone v. Cook, 179 Mo. 534.] But we have seen that when a will is set aside at the suit of one heir it is set aside as to all. Then what should be done with those heirs who have (as in this ease), received bequests and devises of property under the will? Shall they be allowed to retain the bequests so- received and yet claim a share of the real estate of deceased to the same extent as though said bequests had not been received? We hold they should not. The defendant Thomas Wesley Hines did not, under the will, receive any of the property of Matilda A. Higgins in Arkansas, and those heirs who accepted bequests made under the will have assisted in using up the estate of said deceased in Arkansas. Now they come into this partition suit and ask to be awarded the same shares of the real estate of Matilda A. Higgins in Missouri as if they had received no bequests.

The interlocutory order of the circuit court of Caldwell county awards them the same shares in the Kidder and Shoal Creek farms in Missouri as though they had not accepted bequests under the will. This is a plain injustice to those defendants to whom property was devised in Missouri. The will, while invalid, was sufficient to enable some of the parties to receive under its provisions bequests and devises of considerable value; and they should not be allowed to share in the partition of the Missouri real estate to the same extent as if they had not accepted said bequests and devises.

While the courts of Missouri, have no power to adjudicate the titles of real estate in Arkansas, nor to determine how an estate shall be administered in that commonwealth, they can undoubtedly look beyond the State line to ascertain whether or not a litigant demanding property located in Missouri has done anything in another State which would bar or limit his fight to recover the Missouri property. [Mort v. Jones, 105 Va. 668.]

The interlocutory judgment holds that defendant, Thomas Wesley Hines is liable for $2384.32 for rents received by him from the Kidder farm in Missouri, which Matilda A. Higgins attempted to devise to him, and which farm he held until the institution of the will contest; but in s.aid interlocutory judgment, no rent is charged against defendants William H. Hines and Lilian Hines who, according to the evidence, were for several years in possession of the Shoal Creek farm in Missouri under said will of Matilda A. Higgins. No reason is apparent why defendant Thomas Wesley Hines should be charged with rent while no such charge was made against William H. Hines and Lilian Hines, who stand in the same position as he, so far as having enjoyed the use of some of the Missouri land prior to the institution of the will contest. In this respect, the judgment appealed from is erroneous.

After carefully considering the unusual situation which has arisen in this case through the annullment of the will of Matilda A. Higgins and the receipt, by five of the parties to this action, of bequests and devises under said will, we hold that said last named five parties are not wholly estopped from claiming a share in the Missouri lands. However, the ends of justice demand that after the Missouri lands shall have been sold for the purpose of distributing the proceeds thereof, those heirs who have received real estate in Arkansas or personal property under the provisions of the will, shall be charged with the respective bequests and devises so received as though said bequests and devises were advances made to them by Matilda A. Higgins during her lifetime; and being treated as advances, they should be brought into hotchpot.

The following named parties to this action have accepted bequests and devises in manner and form following:

Defendant Susan McCormick has accepted real estate in Arkansas, of the value of $3000;

Plaintiff Madison Hines has accepted $500 in cash;

Plaintiff Thomas W. Hines has accepted $75 in cash;

Defendants William H. Hines and Lilian Hines (children of Marion O. Hines) have jointly received $4065.23 in personal property and 528- acres of land in Arkansas, the value of which last mentioned land is not proven.

None of the last five named parties have been charged with interest on bequests or divises received by them, and as we have decided to treat those bequests and devises as advancements, no interest should be charged thereon. [Nelson v. Wyan, 21 Mo. 347.] Owing to the fact that none of the other parties who have received and held property under the will of Matilda A. Pljggins have been charged with rents or interest, we find it would be inequitable to charge defendant Thomas Wesley Hines with rent on the real estate in Missouri which he received and held until the will contest was' instituted.

To consummate justice between the parties to this action, under the peculiar facts disclosed by this record, we will reverse the judgment of the circuit court and direct it to enter a new interlocutory judgment and order of sale, which shall determine the interests of the several parties the same as they are recited in plaintiff’s petition, except that the item of $2384.32 of rent charged against the interest of defendant Thomas Wesley Hines shall be eliminated, and no rent should be charged against Wm. H. Hines and Lilian Hines. [Sec. 2394, R. S. 1909.]

Before making any distribution of the proceeds which mil arise from the sale of the Missouri lands, the court will add to the net proceeds of such sale the moneys and the value of the several properties received by the five heirs who have accepted and retained property under the will; and for that purpose, shall hear evidence as to ■ the value of the 528 acres of land in Arkansas devised to defendants William H. Hines and Lilian Hines.

For the purpose of directing how the proceeds of the Missouri land shall be disbursed, we will make an estimate of the value of the estate to be taken into consideration in making the order of distribution.

Estimated proceeds of Missouri land----$20,000

Estimated value of bequests and devises re- ■' ceived by plaintiffs Thomas W. Hines, and Madison Hines, • and defendants Susan McCormick, William H. Hines and Lilian Hines ........................ 10.000

(For convenience, this $10,000 item will hereafter be referred to as the Arkansas Fund.)

Total estimated value of estate..........$30,000

It will be necessary to take into consideration the “Arkansas Ftmd” in determining what shares shall be paid to those heirs who have received property under the will. This should be done in the following manner:

Plaintiff Thomas W. Hines being entitled, as an heir, to a forty-second share of this estimated estate of $30,000, should (if there had been no will) receive $714.28; and as two-thirds of this estimated estate was located in Missouri and the remiaining third was either located in Arkansas or collected by the Arkansas administrator there should be distributed to said Thomas W. Hines two-thirds of his share, or $476.18, from the proceeds of the Missouri real estate; and the remaining third of his share ($238.09) he should have received from the “Arkansas Fund”; but as he received only $75, or less than his share thereof, his share as an heir in the proceeds of the Missouri real estate should not be diminished by the receipt of the $75 bequest; and he should therefore be awarded $476.18 out of the estimated proceeds of the Missouri land.

Plaintiff Madison Hines having a sixth interest in the (estimated) estate of $30,000, is entitled to $5000; and two-thirds of that sum ($3333.33) should be his share of the proceeds of the Missouri real estate; and the remaining third or $1666.67, should be charged up to the “Arkansas Fund”; and his receipt of $500' from the administrator in Arkansas should not be held to diminish his claim as heir to the Missouri real estate.

Defendant Susan McCormick having a one-twelfth interest in this (estimated) estate of $30,000', is entitled to $2500; but as she has already received bequests and devises in Arkansas of the aggregate value of $3000 under the will which is more than her share of the entire estate, she should not be awarded any part of the proceeds of the Missouri real estate.

The defendants ‘William H. Hines and Lilian Hines being entitled jointly as heirs to two-eighty-fourths of this (estimated) $30,000 estate, to-wit, $714.28, and said last named parties having received property of the estimated value of $6425 under the will, which is more than two-eighty-fourths of the entire estate, should not be awarded any part of the proceeds of the Missouri real estate.

What we have said should not be interpreted as giving to the heirs who have accepted under the will the right to maintain claims ¡against each other. We have no jurisdiction of such an issue.

When the claims of the heirs who have accepted under the will, to shares in the proceeds of the Missouri land, shall have been determined in the manner we have herein directed, then the remainder of such proceeds shall be distributed to the remainder of the parties to this action, according to their respective interests, as stated in plaintiff’s petition, except, of course that the shares which would have been due Susan McCormick, William H. Hines and Lillian Hines if they had not received under the will, shall be distributed pro rata among the other parties to this action.

We have made these observations in order to devise a correct and equitable plan for dealing with those heirs who have already received part of the estate under the will, but our figures of course are not precise, by reason of the fact that the value of the property distributed under the will to five of the heirs and the "net proceeds of the Missouri land are only estimated; but we have given the rule which must govern the trial court in making its order of distribution after the lands have been sold (whatever the amount realized therefrom). The costs of this appeal, including any attorney’s fee which may be allowed to plaintiffs’ attorney for defending the appeal, shall be taxed solely against the respondents. It is so ordered.

Ferriss, P. J., and Kennish, J., concur.