Creasy v. Alverson

Fagg, Judge,

delivered the opinion of the Court.

This was a proceeding for partition, instituted in the Marion Circuit Court, and presents substantially the following statement of facts as gathered from the record. John Creasy and Mary Jane, his wife, formerly Mary Jane Alverson, claimed in right of the wife to be entitled to the one undivided one-third part of a certain tract of land situate in said county, and described in the petition as the west half of the northeast quarter of section three, in township fifty-nine, range number six west. It is alleged that Pleasant Alverson died intestate, sometime in the year 1859, seized and possessed of the premises in question, and leaving the following-named children his only heirs at law, viz: the said Mary Jane Creasy, Calvin and Thomas Alverson. The answer of Calvin Alverson denies any claim of title or interest in the premises, and avers that the father, Pleasant Alverson, by his last will and testament, devised the same to his said son Thomas, and that the tract was erroneously described in the will as the west half of the northeast quarter of section thirty-three, township sixty, range six. The other defendants, being the widow and heir at law of the said Thomas (who departed this life after the death of his father), deny the right of plaintiffs to any portion of the property, and set up a full and complete title, as aforesaid, under the last will of the said Pleasant Alverson. It is also averred that, upon the death of his father, Thomas took possession of the property, claiming title thereto ; that he made valuable improvements, and continued to hold the same adversely *19 to plaintiffs up to the time of his death; and that since that event these defendants have continued in the exclusive and adverse occupation of the premises. The residence of Pleasant Alverson was in the adjoining county of Lewis, and a certified copy of his last will, as proved and recorded in said county, is attached to and made part of the answer of the last-named defendants.

Upon the trial in the Circuit Court this copy of the will was admitted in evidence, against the objections of the plaintiffs, and this presents the first question that will be considered in the-examination of the case. It appears that the evidence of the subscribing witnesses was reduced to writing, certified by the clerk, as the law directs, and indorsed upon the will.

The sixteenth section of the act respecting wills (R. C. 1855) directs the clerk of the County Court to receive the proof of all. wills exhibited for probate, “and grant a certificate of probate; or, if such.will be rejected, grant a certificate of rejection.” The law does not say to whom this certificate shall be granted, nor does it direct in what manner the evidence of this conditional act on the part of the clerk is to be preserved. That it is a mere conditional act on his part, and not conclusive either for or against the admission of the will to probate, is settled by the fourteenth section of the same act. So that if the proof taken by the clerk be deemed sufficient to admit the will to probate, and his certificate to that effect should be indorsed thereon, still, without an order made by the County Court, at its next term thereafter, confirming his act, this would constitute no sufficient evidence of the fact that it had been duly admitted to probate. The probate of a will is a judicial act, the best evidence of which is of course the order of the court confirming the act of the clerk, and is only to be ascertained by the records of that tribunal. (Jourdan v. Meier, 81 Mo. 40 .)

The exemplification of the record in this case shows the entire instrument which purported to be the last will and testament of Pleasant Alverson, with the proof of the subscribing witnesses taken in the manner required by law, and that is all that would seem to be required by the twenty-eighth section of the same act to make it as effectual in evidence, in all cases, as the original *20 itself. By the twenty-sixth section of the act referred to it is required that “all wills shall be recorded by the clerk of the County Court, in a book kept for that purpose, within thirty days after probate; and the originals shall be carefully filed in his office.” Having been recorded in the manner required by. law, with the proof of its execution indorsed upon it and certified by the clerk, the Circuit Court may very well have inferred that the act necessary to be performed by the County Court, previous to its being placed on record, had been performed, although no certificate of such fact was attached to the copy produced in evidence. The objection to the admission of the paper in this case was only as to its authentication. It is now too late to raise the further objection that it contained no copy of the order admitting it to probate, and we think no error was committed by the Circuit Court as to this point.

Five declarations of law were asked for by the plaintiffs : the first four relating to. the question of possession on the part of Thomas Alverson, deceased, and those claiming under him, and the last one in relation to the question of title under the will of Pleasant Alverson, deceased. The third and fifth were given, and the remainder refused. It appears that Pleasant died in May, 1859, and Thomas in the year 1863 ; that the latter took possession of this tract of land, made some improvements upon it, but they were taken away about the time of his death. Some declarations of his were testified to by a portion of the witnesses, to the effect that he claimed the premises as his own, and denied that Mrs. Creasy was entitled to any part of them. There were some acts of ownership' performed by the defendants after the death of Thomas, but no actual occupation of the land up to the time of bringing the suit. We think,'upon this state of facts, that the possession of Thomas and those claiming under him was hardly sufficient to authorize the finding of an actual ouster as against Mrs. Creasy. The employment of counsel to assert his claim to the property, and other attending circumstances, go to show that the plaintiffs were all the while claiming to be entitled to a share in it, and we think there would have been no error in giving the first four instructions.

*21 The fifth instruction raises, as we think, the real question for determination, viz: Did Pleasant Alverson die intestate as to the land in controversy ? The clause of the will upon which the defendants’ claim of title must rest is as follows: “I give and bequeath unto my son Thomas J. Alverson the real estate herein described, to have and to hold the same; the above real estate lying and being in the county of Lewis, and State of Missouri, and known as the part east half of the northeast quarter of section thirty-four, township sixty, of range six, containing sixty acres, more or less ; the west half of the northeast quarter of section thirty-three, township sixty, containing eighty acres, more or less ; forty acres, the southeast quarter of the northeast quarter of section three, township fifty-nine, in range six, and lying in Marion county, Missouri. Thomas J. Alverson and Calvin Alverson, in partnership, are to have,the above real estate, lying and being in Lewis county, and known as the east half of the southeast quarter of section thirty-four, township sixty, range six, in equal parts.” This clause of the will is so drawn as not to make it apparent at once what was intended by the testator. Taken as a whole, however, and giving what we think is a fair and reasonable interpretation of the language, it would seem to be that the sixty-acre tract devised to Thomas and Calvin in partnership was located in the county of Lewis, and the two remaining pieces in the county of Marion.

In the defendants’ answer it is averred that the land in controversy was the eighty-acre tract which his father intended to be devised to his son Thomas, and that the same was improperly described in the will, by a mistake on the part of the person who drew it up ; that it should have been described as being a part of section three, township fifty-nine, instead of section thirty-three, township sixty,•> as it is written in the will. Now, the simple proposition to 'be determined is whether, in such a state of case, extrinsic evidence can be admitted for the purpose of ascertaining precisely the location of the land intended to be devised to Thomas Alverson. In the work of Sir James Wigram, relating to the admission of extrinsic evidence in the interpretation of wills (as published in the New Library of Law and Equity), vol. *22 H, page 17, Ms fifth proposition is stated in these words : “ For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will and to the property which-is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator’s words.” Now here is a devise of a tract of land described as being situate in Marion county, but the numbers given for the purpose of fixing its location with reference to the surveys of the public lands show that such a tract cannot be located in that county. Extrinsic evidence is introduced to explain the fact that the west half of the northeast quarter of section three, in township fifty-nine, range six, was owned and claimed by the testator; that it.is in Marion county; that it adjoins the forty acres devised to the same son; while the eighty-acre tract described in the will is really in the county of Lewis, owned and occupied by a different person altogether, and that the testator had never asserted any claim to it whatever.

That is not all. The person by whom the will was drawn up at the request of the testator testifies clearly.to the fact that the description of the property intended to be devised to Thomas was incorrectly set out, through his own mistake. He says that a patent containing a description of the property in question was handed to him by the testator, with instructions to include that piece in the portion of his real estate given to his son Thomas, and that he wrote the latter’s name upon the patent for the purpose of identifying the tract as intended for him, but by mistake he wrote down the wrong numbers of the section and township in drawing up the will. The description is otherwise correct.

It may frequently be a difficult matter to apply the rule under *23 consideration, and to fix its limits with entire certainty; but this case, we think, is so plain and simple in its facts as to admit of no doubt. The object of the testator, and that which must in all cases be effectuated by the courts in the interpretation of wills, made entirely clear by the testimony. No room is left to doubt the fact that the intention was to pass the title of the property in controversy to Thomas Alverson, and therefore the claim of the defendants must be held sufficient to defeat the plaintiffs’ suit. It will not be necessary to review the large number of cases that might be cited in support of the application of the rule to the case .at bar. A decision of this court, as reported in Riggs v. Myers, 20 Mo. 239 , is considered to be directly in point, and sufficient to settle the principles involved in this case. The conclusion is that the fifth instruction given by the Circuit Court was improperly given, and should have been refused. The ruling of the court, however, as to the admissibility of testimony, was correct, and the judgment for the right parties. The judgment of the Circuit Court was affirmed by the Sixth District Court, and the case is now brought here by writ of error.

Judge Baker concurring, the judgment is affirmed.

Judge Wagner did not sit, having been of counsel in the lower court.