Graham v. Graham , 297 Mo. 290 ( 1923 )

This is an action to determine title to a farm of 220 acres in Miller County.

The petition states that plaintiff is the owner and in lawful possession of said farm; that he acquired it through the last will of Alexander Graham, Sr., deceased, and that the defendants claim some title or interest therein adverse to plaintiff and prays determination of the title.

Two of the defendants, Gertrude Ray and Ruby Ray, minor grandchildren of Alexander Graham, Sr., answered by their guardian ad litem. The answer of Samuel D. Graham, Jane E. Bell and Andrew M. Graham, averred that Alexander Graham, Sr., died intestate in the year 1902, and, after a general denial, asserted an interest in the land as heirs of the said deceased, and also by being devisees named in the last will of their mother, Jean Graham, deceased. The answer proceeds: "Said defendants further state that Alex Graham, Sr., deceased, and Jean Graham during their lifetime executed a certain written instrument now of record in the Probate Court of Miller County, Missouri, which written instrument purported to give to Charles F. Graham, plaintiff herein, the land described in the petition, in consideration that he, the said Charles F. Graham, would support the said Alex Graham and Gene (Jean) Graham, and the survivor of them during their lifetime; and after the death of the said Alex Graham, Sr., aforesaid, Gene (Jean) Graham, his widow, survived him a long number of years, and the plaintiff, Charles F. Graham, wholly failed, refused and neglected to support her, the said Gene (Jean) Graham, during her lifetime, and by such neglect, failure and refusal the said Charles F. Graham forfeited all of the right, title and interest which he might otherwise have claimed by reason of the said joint instrument above referred to purporting to give him an interest in the lands described in plaintiff's petition." The answer further avers that because of the failure of plaintiff to provide for her, Jean Graham, by her last will, revoked the joint written instrument so executed by her and her husband. The answer concludes with a prayer that they be decreed an undivided three-sevenths interest in the land.

James Graham filed no answer. Margaret E. Harbison, Elmer Graham, Edgar Graham, Opal Roberts and William Graham, defendants, filed disclaimers.

The reply admitted that Alexander Graham, Sr., died in the year 1902, averred that his will was thereafter duly probated and specifically denied all other averments of the answer.

The court found that the plaintiff, by reason of the default of James Graham and by reason of the disclaimers filed by the other named defendants and by reason of the interest he owns in said land as a child of Alexander Graham, Sr., and of Jean Graham, both deceased, is entitled to nineteen thirty-fifths of said land; that Samuel D. Graham, Andrew M. Graham and Jane E. Bell, are each entitled to an undivided one-seventh interest in said land, and that Gertrude Ray and Ruby Ray are jointly entitled to an undivided one thirty-fifth interest therein, and that no other parties to this action have any interest therein, and judgment was rendered defining and adjudging the respective interests of the parties accordingly.

It was admitted that the title to the land described in the petition was in Alexander Graham, Sr., at the time of the execution of the will. The will was read in evidence. The material parts are as follows:

"Know all men by these presents. That we, Alex Graham (sen) and Jeane Graham, of the County of Miller, State of Missouri being of sound mind and memory, do make and publish this our last Will and Testament, in manner and form following:"

The first paragraph gives and bequeaths to James Graham, Alex Graham (Jr.), Margaret E. Graham, Jane E. Bell and Andrew M. Graham, five dollars each, and to Charles F. Graham, "all the balance of our personal property and money."

"Second. We give and Devise For Caring for us while we live To Charles F. Graham all our land as follows: [description omitted.] To have and to hold the same and the several tracts and parcels thereof to the said Charles F. Graham and his heirs and assigns forever.

"The provisions of this our Will are to take effect after we are both dead and not before.

"And last we hereby constitute and appoint Alex Graham (Jr.) to be the executor of this our last will and testament."

The will was signed by the testators and attested by three witnesses on March 15, 1902, and was admitted to probate in proper form on January 17, 1920. Alexander Graham died within two weeks after the execution of the will.

Plaintiff took the laboring oar, and introduced Mr. Russell, who testified he had known the Grahams forty or fifty years; had lived on the farm adjoining that in question thirty-three years; was present when the will of Alexander Graham, Sr., was written by his son Alexander who was a justice of the peace.

"Q. What kind of care did Frank [Charles F.] Graham take of these parents, if you know? A. Well, he cared for them as good as they could be cared — as good as he could care for them, I guess; seemed that way to me. I don't suppose there was ever any kick on the way he cared for them, before the old man died, and after the old man died the old lady the same way. As good as could be done. As good as any poor man could.

"Q. What do you know about the care? Did you frequently visit the home?

"THE COURT: There is no particular use in that because he said he took care of them as good as he could and as good as a poor man could. Now, I won't let you go into details; it takes too long.

"MR. STILLWELL: Well, now, did that continue up until the death of the old lady? A. Yes, sir; it continued up until the death of the old lady, except a short time she went visiting. . . . He cared for her until after she left there. . . .

"The COURT: The question is whether this is a good will or not. That ought to be determined here first. If it is a good will, then you would be put to your proof as to whether you earned under it. . . .

"MR. REED: I think that is the crucial point in it.

"THE COURT: Why, there is no question about it. If the will is no will at all, if he died intestate — if the old man died intestate, why, then the children would all take under the laws of descent and distribution. I understand the old lady made her will according to the law of descent and distribution, didn't she?

"MR. EMBBY: Yes, sir.

"THE COURT: Now, then, if this joint will was a good will — they say not, you say you believe it is.

"MR. STILLWELL: But they say also that we didn't carry out our agreement.

"THE COURT: If there was no will, why, then the agreement didn't amount to anything.

"MR. REED: I suggest this, in open court we take up the legal question involved, right after dinner, as to whether this is a good will or not, and if the court holds that it is a good will, why, then we will proceed with the question of whether it has been — the contract has been carried out; if not, there is no use going on with it."

Plaintiff offered to prove by five witnesses, naming them, that he faithfully cared for and attended to his father and mother until the times of their deaths.

"MR. EMBRY: We object to that offer of testimony because the so-called joint will of Alexander Graham, senior, and Jean Graham shows on its face that its terms present a legal impossibility, and the position of the defendant is that the will, in its form, is not the will of Alexander Graham, and that his property is intestate property under the so-called will; and for the further reason that the records of the Probate Court of Miller County show that Jean Graham, by her duly probated will, revoked the so-called joint will, and therefore the offer is incompetent, irrelevant and immaterial, and throws no light on the terms of the will.

"THE COURT: Now, the objection will be sustained."

Exceptions were saved to the rulings of the court.

Defendants offered in evidence an instrument purporting to be the last will of Jean Graham, dated April 14, 1919, reciting that it revokes and cancels a certain will made by "me jointly with my beloved late husband, Alex Graham (sen) which will is dated March 15, 1902, for the reason that my son Charles F. Graham has wholly failed, neglected and refused to care for and support me and I have been compelled to support and provide for myself, and the said Charles F. Graham became so immoral by his lascivious conduct with one Ethel Kitchel, whom he has married and is now living with, that my said son is not entitled to the property devised to him under and by the terms of said will." The instrument proceeds: "I give devise and bequeath all of my real, personal and mixed property to my children to share and share alike, to-wit: To James Graham, to Samuel D. Graham and Margaret E. Harbison, and Jane E. Bell, and Andrew M. Graham, and Charles F. Graham and to the children and grandchildren of Alex Graham, Jr., my beloved son, who is now deceased, I bequeath a share equal to one child's share." It purports to be signed by Jean Graham by her mark and attested by three witnesses. The abstract recites: "(Certificate of Probate does not appear of record and blank space is left therefor if same can be found.) (No certificate of probate found.)"

Plaintiff objected to the reading of the will for the reason that it could in no wise affect the will of Alexander Graham, and is immaterial and irrelevant to any issue in the case. The objection was overruled and the will was read in evidence. There were no declarations of law asked or given.

I. The failure to give declarations of law is of no importance. If given, they would simply indicate the theory of the court. This is shown by its rulingsDeclarations and judgment. [Armor v. Lewis, 252 Mo. 568, 574.]of Law.

II. The court erred in admitting the alleged will of Jean Graham. It could not take effect until probated and it is not probated until the court having probate jurisdiction so declares by its judgment. [Farris v. Burchard, 262 Mo. 334.]Unprobated Mrs. Graham had no interest in the land other thanWill. her statutory rights, as it was admitted that the title was in her husband at the time of the execution of the so-called joint will.

III. We think it clear the learned trial court concurred in the view of respondents' counsel that the will of Alexander Graham was inoperative. Whether plaintiff supported his parents was, in the mind of the court, unimportant until it wasConclusion determined whether or not it was a good will. Theof Court. court concluded it was not and sustained the objection to the offer of further proof.

IV. Respondents contend that under our statutes, letters of administration must be taken out within thirty days after the death of the decedent; lands cannot be sold for debts of decedent after ten years from the date of his death; the will providing that it should not take effect until after the death of the surviving testator shows absurdities andPublic Policy: impossibilities in the event the survivorImpossible Terms. lived more than ten years, and the lifetime of the survivor after the death of the first joint maker being uncertain, makes demand that the terms of the will be disregarded; that the will has provisions that are legally impossible; it is against public policy and the rights of creditors; it suspends the vesting of the title until the death of the survivor of the joint makers; it attempts to create an estate in remainder in Charles F. Graham without creating a particular estate on which the estate in remainder may rest.

V. If the testator, Graham, left unpaid debts at his death, his creditors were not hindered by the will in having an administration on his estate. A will does not affect the right of a creditor of a deceased householder, dying testate, to have his debt paid out of the testator's property. [Armor v. Lewis, supra, l.c. 576.]

VI. This case is wholly unlike State Bank v. Bliss,67 Conn. 317. On page 323, the court said:

"The will is partly a joint and partly a mutual one. Each testatrix executed it as the will of both and in order to accomplish a common purpose. Its form would indicate that it was originally drafted as a joint will, only, andJoint Will: that the reciprocal provisions and contingentHusband's Lands. residuary gift to their next of kin, found in the clauses numbered from 5 to 8, were subsequently inserted. A will strictly mutual is in legal effect nothing but the individual will of that one of the testators who may die first. [Lewis v. Schofield, 26 Conn. 452.] To give such a construction to the will now under consideration would do violence to its terms. It purports to be a joint act; it creates a common fund out of which the debts of each and her funeral expenses are to be met, and legacies to third parties paid; and it provides against its probate until both the makers are dead, after making each the residuary legatee of the other. This scheme is one which it is impossible to carry out, and its various parts are so related to each other that all must fall together."

VII. There was no direction in Graham's will to postpone probate of the will, nor were there mutual or reciprocal devises. The farm belonged to Alexander Graham. It was, as we will see, his separate will. The clause reciting "that the provisions of this will are to take effect after we are both dead and not before" is not contrary to public policy, but is sanctioned by Section 2271, Revised Statutes 1919, which reads, in part: "And hereafter an estate of freehold or inheritance may be made to commence in future by deed, in like manner as by wills."

In Buxton v. Kroeger, 219 Mo. 225, 256, Fox, J., said: "It is a sufficient answer to that inquiry to say that under the provisions of Section 4596, Revised Statutes 1899 [now Sec. 2271, R.S. 1919], it was not necessary that there should be any estate created between the end of the life estate and the vesting of the estate in remainder. It was expressly ruled by this court in O'Day v. Meadows, 194 Mo. 588, that an estate may be created by deed to commence in the future without any intervening estate to support the same."

VIII. It was held in Bower v. Daniel, 198 Mo. 289, 320, that "a joint will or, in other words, a single instrument containing the wills of two or more persons, may be probated upon the death of one of the testators as his will, and, unlessProbate of revoked subsequently, may again be probated upon theJoint Will. death of another of the testators as the will of the latter. . . . A mutual will is unquestionably valid and is entitled to probate upon the death of the other party."

In Alexander's Comm. on Wills, sec. 77, page 90, we read: "It is now well settled both in England and in the United States that joint, mutual or reciprocal wills, whether executed in one document or more, are valid as the separate wills of the testators. The separate will of each testator affects only his property or his interest in joint property, and becomes operative only at his death."

Section 78, page 91, reads: "A testamentary document jointly executed by two persons may declare in terms that it is the joint will of both and that the property disposed of shall pass to the devisees named after the death of the survivor, yet such an instrument may be admitted to probate in certain cases. The use of the word ``joint' does not alter or affect the provisions of the will and the contents must control; thus, where the surviving husband or wife would have been entitled to all the property of the other disposed of by a testamentary document jointly executed by both, in the event such other had died intestate, and the instrument contains nothing which would prevent revocation, there would be no impropriety in postponing the right of the beneficiaries to receive such property until after the death of both testators."

"A testamentary instrument, although it is signed or executed by two persons, and although it may purport to be the will of both, is neither a joint nor a mutual will where it disposes of the property of only one of them, but it must be treated as the will of that one only, and signature of the other being rejected as mere surplusage." [40 Cyc. 2111.]

Hence it results that the will in question was the separate will of Alexander Graham; that its provisions were not contrary to public policy or impossible of being carried into effect, and it was entitled to probate at his death.

IX. There is no merit in respondents' contention that by the terms of the will the land was devised to plaintiff on condition that he would support the testators during theirDevise for lives and that Mrs. Graham had declared aConsideration. forfeiture because of his failure to perform that condition.

It may be conceded that the will imposed an obligation upon plaintiff to support his parents, but the performance of that duty was not made a condition, precedent or subsequent. Such a condition must clearly appear; it will not be implied. [40 Cyc. 1683.]

In Roberts v. Crume, 173 Mo. 572, the devise was upon condition that the devisee would care and provide for testator's son during his life. Syllabus 3 reads: "The condition in said will to support the son was not a subsequent one, for such a condition, to defeat or work a forfeiture of vested estates, must be created in express terms or by clear implication, and nothing is to be found in these words to indicate any such intention."

See also Catron v. Scarritt Collegiate Institution,264 Mo. 713, 723; German Evangelical Prot. Congregation v. Schreiber,277 Mo. 113, 127.

The judgment is reversed and the cause is remanded with directions to enter judgment for the plaintiff, declaring him to be the owner in fee of the premises described in the petition and that the defendants, nor either of them, have any interest therein. Railey and Davis, CC., concur.