author: BURGESS, P. J.

text:
    STEVENS et al., Appellants, v. OLIVER et al.
    Division Two,
    December 22, 1906.
    1. WILLS: Foreign: Certification. Where a will probated in Ohio, where testator died, is certified by a certain person as “judge and ex-officio clerk” of the probate court in which it was admitted to probate, and the signature of said person as ex-officio clerk is certified by the same person in the capacity of “sole and presiding judge” of said probate court, the will is admissible in evidence. The probate judge being ex-officio clerk of the same court,, the probate record could not have been certified in any other way or by another person.
    2. -: —-: Admitted to Probate Here: Collateral Attack. The record of a probate court in this State admitting to probate a foreign will, is conclusive as against collateral attack.
    3. -: -: Evidence Here. EVen if not admitted to probate in this State, a will executed and probated in another State in accordance with the laws of this State, and recorded in the proper probate court in this State, is admissible in evidence in a partition suit, in the same manner and with like effect as domestic wills.

      i. -: Collateral Attack: Partition. A suit for partition cannot he regarded as a contest of the will. The probate of a will in Ohio and in Missouri cannot be collaterally attacked in this State; the judgment admitting it to probate is like any other judgment of a court of competent jurisdiction; it stands as a judgment binding upon all the world until set aside in the manner and within the time allowed by law.
    Appeal from Jackson Circuit Court. — Sow. J. FL. Stover, Judge.
    Akfirmbd.

      Johnson & Lucas and Frank Titus for appellants.
    (1) The document admitted in evidence purports to he certified by R. Brinkerhoff, Jr., as judge and ex-officio clerk of the probate court of Richland county, Ohio, and the signature of said R. Brinkerhoff, Jr., ex-officio clerk is certified by the identical R. Brinkerhoff, Jr;, in the alleged capacity of sole and presiding judge of such probate court. The absence of the original will was not accounted for. Such alleged copy was inadmissible in not being authenticated as required by law, and was further inadmissible in this case by reason of the testimony previously introduced of said R. Brinkerhoff, Jr., contained in, his deposition, showing the illegality of the proof of such will as made in said probate court under the laws of Ohio, (a) Said purported will of John C. Larwill was neither executed nor proved in accordance with the laws of the State of Ohio. Bates’ Ohio Stats. (3 Ed.), secs. 5916, 5917, 5926. These facts disclosing clearly that no judicial examination was had in open court as required by the Ohio statute; that no testimony was in fact taken regarding the execution of the will; no reduction thereof to writing; no notice given to the next of kin living in Ohio, of the purported probate, without doubt rendered such alleged certified copy inadmissible. Randolph v. Bayne, 44 Cal. 366; Allison v. Allison, 46 111 61; Smith v. Rich, 37 Mich. 549'; Carmalt v. Post, 8 Watts (Pa.) 400'; Summers v. McKim, 12 Serg. & R. (Pa.) 405; In re Eldridge, 82 N. Y. 170; Fisk v. Tank, 12 Wis. 306; Davis v. Upson, 209 111. 211; Floto v. Floto, 213 111. 438. That the testimony of this probate judge is proper and admissible, to contradict the alleged certificates purporting to come through him or from him, see Raum v. Ayermann, 2 Mo. App. 476; Holdridge v. Marsh, 30 Mo. App. 352; Eager v. Stover, 59 Mo. 87; Bradley v. Welch, 100 Mo. 258; Mays v. Pryce, 95' Mo. 603; Patterson v. Fagan, 38 Mo. 70; In re Jones’ Will,' 85 N. Y. Supp. 294. (b) It is contended by respondents that the alleged will and so-called certificates, as certified, are all competent evidence under the law regarding the authentication of judicial proceedings of the courts of other States; and the trial court upheld this view. Such contention is erroneous. Sec. 3135, R. S. 1899. The probating or lodging in a probate court of Ohio, of a will, is not a judicial proceeding such as is contemplated either under the act of Congress, or the Missouri statutes. • In re Hathaway’s Will, 4 Ohio St. 383; Barr v. Closterman, 2 C. C. (Ohio) 391; Clardy v. Richardson, 24 Mo. 295. In Missouri, the filing for probate of a purported will and the proceedings in that connection, are uniformly held to be ex parte and merely provisional, and in no respect conclusive. Benoist v. Murrin, 48 Mo. 48 ; Watson v.. Alderson, 146 Mo. 344. While the act of Congress and our statute, in contingencies to which they apply, may permit placing in evidence, upon due proof, of court proceedings which are strictly judicial in character, yet if such aré not “judicial proceedings,” as in the case at bar, they are entitled to no consideration in the courts of this State. Gillett v. Camp, 23 Mo. 375; Cox v. Cox, 101 Mo. 168; Sneed v. Ewing, 28 Ky. 466; In re Nash’s Will, 37 Misc. Rep. (N. T.) 706; Budd v. Brooke, 3 Gill (Md.) 232; Olney v. Angelí, 5 R. I. 198; Wonderly v. Lafayette County, 150 Mo. 644; Bank v. Willey, 195 TJ. S. 257; Lanig v. Gay, 78 Pac. 810; Robertson v. Pickerell, 109 U. S. 608. (c) The title to land, the mode of vesting the same, and the rules regulating proof as to title, are more peculiarly local than any other features of our government. In all such matters, and especially where the authority of a will is invoked, the unvarying rule is that the lex rei situs governs in every detail. Dupus v. Mayo, 11 Mo. 314; State v. Clark, 178 Mo. 20; McCormick v. Sullivant, 10 Wheat. 192; Kerr v. Moon, 9 Wheat. 565; Lucas v. Tucker, 17 Ind. 41; Ins. Co. v. Bank, 68 111. 348; Sneed v. Ewing, 28 Ky. 460; Nowler v. Coit, 1 Ohio 519; In re Crawford, 68 Ohio-St. 58; Robertson v. Barbour, 6 Mon. 523. (2) The question requested to be submitted to the jury: “Is the title to the lands sought to be partitioned in this cause in the heirs of John C. Larwill?” was a proper one. Plaintiffs were entitled to a jury verdict on all issues in the case as demanded hy them. Benoist v. Thomas, 121 Mo. 660; Gunn v. Thurston, 130 Mo. 339; Green v. Walker, 99 Mo, 73. (3) (a) The lands involved in this action are not devised. None of the lands owned by the alleged testator are mentioned. The statutory heirs therefore inherit. Gaines v. Carriker, 50 Mo. 564; Eneherg v. Carter, 98 Mo. 651; White v. Crawford, 87 Mo. App. 267; McQueen v. Lilly, 131 Mo. 16; Godfrey v. Wingert, 110 111. App. 563; Chamberlain v. Taylor, 105 N. Y. 185; Read v. Williams, 125 N. Y. 560; Desloge v. Tucker, 94 S. W. 286; McGowan’s Estate, 190 Pa. St. 375; Bruckman’s Estate, 195' Pa. St. 363; Minider v. Simons, 172 111. 323; Lewis v. Harrower, 197 111. 315; Matthews v. Krisher, 59 Ohio St. 562; Bane v. Wick, 14 Ohio St. 506; Davis v. Davis’s Executors, 62 Ohio St. 411; Crane v. Doty, 1 Ohio St. 279; Needles v. Needles, 7 Ohio St. 445; Coffman v. Coffman, 85 111. 459; Lawrence v. Smith, 163 111. 166; Ames v. Holmes, 190 111. 561; Jones v. Kelly, 72 N. Y. Supp. 24; Gallagher v. Crook, 132 N. Y. 338; Ford v. Ford, 70 Wis. 48; Right & Mitchell v. Sidebottom, 2 Doug. K. B. 759; Schouler on Wills (2 Ed.), sec. 480; Tiedeman on Real Property (2 Ed.), secs. 319-321. (b) The statutory heirs to the lands of the decedent Larwill, made such by the law of Missouri, cannot be disinherited except by express and lawful devise of the lands to others.' Farish v. Cook, 78 Mo. 218; Eneherg v. Carter, 98 Mo. 651; Hurst v. Yon de Yeld, 158 Mo. 239; McQueen v. Lilly, 131 Mo. 16; Matthews v. Krisher, 59 Ohio St. 562; Ames v. Holmes, 190 111. 561; Parsons v. Miller, 189 111. 107; Crane v. Doty, 1 Ohio St. 279; Chaunet v. Ives, 71 N. Y. Supp. 33.; Henrique v. Yale University, 28' App. Div. (N. Y.) 361; Bruckman’s Estate, 195 Pa. St. 363; Rupp v. Eberly, 79 Pa.. St. 144; Bates v. Woodruff, 123 HI. 205; Baxter v. Bradbury, 20 Me. 264; Gibson v. Seymour, 102 Ind. 488; Bourke v. Boone, 94 Md. 472; Zimmerman v. Hafer, 81 Md. 347; 3 Washburn, Real Prop. (3 Ed.), p. 17. (c) The title to the lands involved at once vested in his statutory heirs on the death of the alleged testator, there being no devise in trust to the executors nor any powers whatever conferred by the purported will upon them. Ford v. Ford, 70 Wis. 67; McHugh v. McCole, 97 Wis. 166; Nowler v. Coit, 1 Ohio 519; In re Crawford, 68 Ohio St. 58; Estate of Fair, 132 Cal. 552; Estate of Fair, 136 Cal. 79; Henderson v. Henderson, 113 N. Y. 1; Booth v. Baptist Church, 126 N. Y. 243; Brennon v. Winkler, 37 S. C. 457; Parsons v. Miller, 198 111. 107; Sadler' v. Turner, 8 Yesey, Jr. 617; Maxwell v. Maxwell, 2 DeGex, McN. & G. 705. (d) As regards all lands owned by alleged testator, the purported will in evidence, in addition to its other defects, is void for uncertainty; and especially so as to the lands here involved. Willey v. Clark, 105 Wis. 52; Cope v. Cope, 45 Ohio St. 464; Armistead v. Armistead, 32 Ga. 646; Howe’s Appeal, 126 Pa. St. 233; Moran v. Moran, 104 Iowa 216; Tilden v. Green, 130 N. Y. 29; Brennen v. Winkler, 37 S. C. 457; Miller v. Travers, 8 Bingh. 244; Jackson v. Craig, 20 L. J. Ch. 204; Mohun v. Mohun, 1 Swanston 201; Brown v. Quintard, 177 Ni Y. 75; Scott v. Guernsey, 48 N. Y. 106; Kelley v. Kelley, 25 Pa. St. 460; Jones dem. Henry v. Hancock,'4 Dow. H. L. Cases 199.

      Wash Adrnis, Chas. B. Adams and Gage, Ladd ds Small for respondents.
    (1) The will was properly probated in Ohio. 1st. Because Joseph H. Larwill, the surviving brother, was the next of kin of the deceased, John C. Larwill, and he was not required to be notified because he did not live in Ohio. . It is only if they reside in Ohio that the statute requires the next of kin to be notified. The widow was notified and, there being no next of kin residing in Ohio, the requirements of the statute as. to notice were complied with. 2nd. But a failure to notify the next of kin does not render the judgment of probate void. It is a mere irregularity and in no event could be taken advantage of by anyone, save Mrs. Ewing and Mrs. Jenner, whom plaintiffs claim are the next of kin intended, and they are defendants claiming under the will. Dickey v. Yaun, 81 Ala. 425. 3rd. These provisions of the Ohio statute are held to contemplate the ordinary probate of a will in common form which is ex parte without notice. Under the Ohio decisions, the requirement as to notice to the next of kin is therefore clearly directory and not jurisdictional. Hall v. Ashby, 9 Ohio 95; Bailey v. Bailey, 8 Ohio 239; In re Hathaway, 4 Ohio St. 383. These decisions also hold that the judgment of probate is a judicial act. 4th. Besides, the record of the Ohio probate court expressly recites and finds that the “widow and next of kin of said decedent had been duly notified of the filing, pendency, prayer, and place and time of hearing of said application” according to the previous order of this court, which order is also shown by the record. The statute does not require any particular form of notice, but simply leaves the time and manner of notice to the discretion of the probate court. There is no evidence that Mrs. Jenner and Mrs. Ewing were not notified in some manner of the proceedings. Mr. Jenner testified that no notice was served on his wife. This was mere hearsay and service was not necessary. There might have been a publication or posting of notice as to the next of kin, which would have been sufficient. The solemn recital of a court having jurisdiction of the subject-matter cannot be overcome by mere hearsay and inconclusive evidence. (2) But our statute does not require a will executed and probated in another State to be executed and probated or proved according to the laws of that State, but simply according to the laws of this State, in order, when recorded in this State, to be admissible in evidence. Secs. 4634, 4635, R. S. 1899. The statute of this State does not require any notice to the next of kin in probating a will in the probate court, but simply its presentation and proof by the affidavits or testimony of the subscribing witnesses, as was done in this case in the probate court of Ohio. Therefore, onr statute, as to the admissibility in evidence of a will executed and proved in another State, was complied with and nothing further was necessary. (3) This will was duly probated in the probate court of Jackson county, Missouri. Opp v. Chess, 204 Pa. St. 401. (4) The transcript from Ohio was proper evidence to sustain the judgment of probate in this State. Opp v. Chess, 204 Pa. 401. (5) But it is immaterial whether the probate court of Jackson county had proper evidence before it or not. It rendered a decree that the will was properly executed — that is, a decree probating the will. It had jurisdiction. Its judgment is conclusive against all collateral attacks.. Stevens v. Larwill, 110 Mo. App. 140; Bright v. White, 8 Mo. 421; Hale v. Hill, 13 Mo. 613; Jourden v. Meyer, 31 Mo. 40; Applegate v. Smith, 31 Mo. 166; Dilworth v. Rice, 48 Mo. 124; Keith v. Keith, 97 Mo. 227; Calloway v. Corley, 15 Kas. 743; Opp v. Chess, 204 Pa. 401. The plaintiffs are seeking to contest the will of John C. Larwill in a partition suit — a collateral proceeding. This cannot be done. The probate of a will can only be attacked by a statutory proceeding to contest the will. It cannot be collaterally assailed. Stevens v. Larwill, 110 Mo. App. 140 ; Stowe v. Stowe, 140 Mo. 594. (6) But no probate of the will was required in this State. The will having been executed and proved in another State according to the laws of this State and “an authenticated copy of such will and the probate thereof” having been ‘ ‘ recorded in the same manner as wills executed and proved in this State ’ ’ the same was admissible “in evidence in the same manner and with like effect” by express command of the statutes of this State. Secs. 4634, 4635, R. S. 1899; Keith v. Keith, 97 Mo. 227; Lewis v. St. Louis, 69 Mo. 595; Drake v. Curtis, 88 Mo. 644. (7) The real estate in question passed to the defendants (other than executors Smith and Oliver) under the said will and codicil thereto of said John C. Larwill. Therefore, plaintiffs had no interest in it and they were properly non-suited. “Technical rules must yield to the obvious intention of the testator.” O’Day Case, 193 Mo. 62; Súmate v. Bailey, 110 Mo. 411; Schouler on "Wills (1 Ed.), secs. 522, 510; 2 Redfield on Wills, sec. 68 par. 48; Watson v. Watson, 110 Mo. 169 ; Carr v. Dings, 58 Mo. 400; Liggat v. Hart, 23 Mo. 127; Thayer v. Wellington, 91 Mass. 283; Smith v. Ewing, 73 Ohio St. 177.
   BURGESS, P. J.

This is a suit for the partition of certain real property in Kansas City, Missouri, between plaintiffs who are nephews of John C. Larwill, deceased, and claim as his heirs, and the defendants, who claim as devisees and legatees under the last will and codicil of said Larwill. John C. Larwill died at Mansfield, Ohio, in August, 1901. At the close of all the evidence the court, at the instance of defendants, gave an instruction in the nature of a demurrer thereto, and instructed the jury to find for defendants, whereupon plaintiffs took a nonsuit with leave to set the same aside, and a motion to that effect being overruled by the court, plaintiffs saved their exceptions and bring the case before this court by appeal for review.

The will of John C. Larwill was admitted to probate in Richland county, Ohio, where he lived at the time of his death, and also in Jackson county, Missouri. An authenticated copy of said .will with the certificate of probate in Ohio and in this State was also recorded in the office of the probate clerk and of the recorder of deeds in said Jackson county. The will and codicil and certificates of probate are as follows:

“In the Probate Court of Richland County, Ohio,
“Probate oe "Will.
“In the matter of the Will of John C. Larwill, deceased.
“Re it remembered, that on the 9th day of September, 1901, an instrument of writing purporting to be the last'will and testament of John C, Larwill, deceased, was produced in open court, and an application filed therewith, by Richmond Smith, to admit the same to probate and record. Whereupon the court orders as follows:
“September 9, 1901. In the Probate Court of Richland county, Ohio. The Last Will and Codicil thereto of John C. Larwill, deceased.
“This day application was made in due form of law for the probate of the last will and codicil thereto of John C. Larwill, late of this county, deceased, whereupon it is ordered that notice issue from this court to the widow and nest of kin of said decedent residents of Ohio acquainting them of the filing, pendency, prayer, and place and time of hearing of said application, which said time of hearing is hereby set for the 10th day of September, A. D. 1901, at 9 o’clock a. m.
“September 10, 1901. In the Probate Court of Richland county, Ohio.
' “The last will and testament and codicil thereto of John C. Larwill, deceased.
“This day the application to admit the last will and codicil thereto of John C. Larwill, late of Richland county, Ohio, deceased, to probate, came on for hearing according to the previous order of this court and thereupon came S. Brainard Leiter and L. A. Strong, the subscribing witnesses to said will, and S. B. Leiter and H. Scattergood, the subscribing witnesses to said codicil attached to said will, and in open court on oath testified to the due execution of said will and codicil thereto, which testimony was reduced to writing, and it appearing to the court from the testimony of said witnesses that said will and codicil thereto was duly and legally attested and executed and that said testator at the time of executing the same was of full age and of sound mind and memory, and not under any restraint, and it further appearing to the court that the widow and next of kin of said decedent have been duly notified of the filing, pendency, prayer and place and time of hearing of said application according to the previous order of this court ; it is ordered that the said will and said codicil thereto be and the same is hereby admitted to probate, and that said will and codicil thereto together with the proceedings relative to the .probate thereof be recorded in the will record of this court.
“I, John C. Larwill, of Mansfield, Ohio, do make and publish this, my last will and testament.
“First. I give and bequeath to my beloved wife in lieu of her dower in my real estate and of her distributive share of my personal estate and of any and all interest that she may be entitled to in or to my estate or any part thereof, one thousand dollars for personal expenses to be paid to her by my executor or executors within thirty days after my decease; also the further sum of one hundred thousand dollars to be paid to her twelve months or sooner at the convenience of my executor or executors, after my death, but if said sum of one hundred thousand dollars cannot be paid within said period of twelve months without inconvenience or sacrifice of property my executor or executors may take such further reasonable time for the payment thereof not exceeding two years from the date of my ' decease, but if such further time for the payment of said one hundred thousand dollars is taken by my executor then my executor shall pay my wife interest on said sum at the rate of three per cent per annum, interest to' be computed from twelve months after my decease, the interest to be paid to her annually. I further give and bequeath to my wife all the furniture, carpets, beds and bedding, piano, pictures and bric-a-brac, together with all the silverware, china and all household and kitchen furniture, stoves and fuel contained in the house in which we reside, also all the books in the library, and in fact everything in use in the house excepting such articles as I may specifically name as being bequeathed to other parties.
Second. It is my wish and will that the sum of not less than twenty thousand dollars nor more than twenty-five thousand dollars be applied and expended by my executor in the erection and completion of a monument or chapel to the memory of my son, Arthur, the design of which I intrust to my sister, Elizabeth L. Miller, my wife, and for the payment of the bequest to my wife, and the erection, of the memorial to my son, Arthur, as provided in item first and second, my entire estate is to be held and the same is made a charge thereon, and the sum above named to be paid as provided for before any other bequests hereinafter mentioned are paid.
Third. I give and bequeath to the Baptist Church of Loudonville, Ohio, the following sums and for the .purposes herein named, one thousand dollars to be invested as a permanent fund, the interest arising therefrom to be annually used in payment of the salary of the minister; two hundred dollars for the purchase of a book case for the Sunday School library; five .hundred dollars for the purchase of books for said library; three hundred dollars to apply on the purchase of a pipe organ for said church, and five hundred dollars to he invested as a permanent fund, the interest arising therefrom to he annually expended in the purchase of suitable books for the Sunday school of said Baptist church, the selection and purchase of said books to be made by or under the direction of the pastor of said church and the superintendent of the Sabbath school.
“Fourth. To my brother, William Larwill, I give and bequeath an annuity of six hundred dollars during his natural life to be paid to him quarterly; in addition to said sum of six hundred dollars to be paid to my brother, William, annually as herein provided, I direct my executor to set apart the sum of three hundred dollars to defray funeral expenses.
“Fifth. I also give and bequeath to my sister,. Elizabeth L. Miller, the sum of fifty thousand dollars.
“Sixth. I give and bequeath to' my brother, Joseph H. Larwill, the sum of fifty thousand dollars.
“Seventh. To my nephew, Miller Stevens, of Kansas City, Missouri, I give and bequeath the sum of fifteen thousand dollars, which shall be in full of any account for services rendered me, and from said sum of fifteen thousand dollars shall be deducted any indebtedness due either myself or wife as represented by note or otherwise.
“Eighth. I give and bequeath to John O. Larwill Stevens, son of George A. Stevens, of Kansas City, Missouri, one thousand dollars.
“Ninth. I give and bequeath to my nephew, W. L. Stevens, of Kansas City, Mo., four thousand dollars.
“Tenth. I give and bequeath to Mary Weimer, our faithful domestic, the sum of one thousand dollars.
“Eleventh. I give and bequeath to my cousin, Julia F. Carr, of Mansfield, Ohio, the sum of five hundred dollars.
“Twelfth. I give and bequeath to my niece, Julia ■ B. Jenner, of Mansfield, Ohio, the sum of one thousand dollars.
Thirteenth. I give and bequeath to Cyrus S. Conn, of Mount Vernon, Ohio, the sum of five hundred dollars.
“Fourteenth. I give and bequeath to the children of W. S. Fisher, of Louisville, Ohio, to-wit, Howard Fisher, Emma Fisher, Susie Fisher, Mary Fisher and Charles Fisher, each one hundred dollars; if at the time of payment of the said sums any of said children not be of age the same shall be paid to the father of said children as trustee.
“Fifteenth. To the Hospital Association of Mansfield I give and bequeath the sum of five thousand dollars.
“All the bequests named above excepting items one and two are payable at the option and convenience of my executor.
“I require no appraisement nor inventory of my property to be made, nor do I require any bond from my executor.
“I nominate Paul Oliver, of Perryville, Ohio, as my executor and have full confidence that he will faithfully execute the trust I repose in him.
“In testimony hereof, I have hereunto set my hand and seal this 4th day of October, A. D. 1897.
“John C. Larwile (Seal).
“Signed and acknowledged by John C. Larwill, as his last will and testament in our presence and signed by us in his presence and at his request.
“S. Brainabd Leiter.
“L. A. Strong.
“Whereas, I, John C. Larwill, on the 4th day of October, A. D. 1897, made my last will and testament of that date, I do hereby declare the following to be a codicil to my said will.
“Item 1. I hereby revoke the bequest of five thousand dollars to the Hospital Association of Mansfield, Ohio, unless fifteen thousand dollars additional shall he subscribed and paid in within one year after my decease, the same to be used in the construction and equipment of the said hospital; and I also require S. N. Ford, Robert B. Maxwell and Richard Smith shall be elected members of the board of trustees of said Hospital Association, and their decision regarding the provisions of this request being complied with shall be final.
“Item 2. I hereby give and bequeath to Laura Larwill, daughter of J. Fawcet Larwill, of Wooster, Ohio, the sum of fifteen hundred dollars.
“Item 3. I give and bequeath to my niece, Mrs. Julia B. Jenner, of Mansfield, Ohio, three hundred dollars per annum during her natural life, payable quarterly, the same being in addition to the amount given her in my will.
“Item 4. I give and bequeath to our faithful domestic, Mary Weimer, one thousand dollars in addition, to the amount given her in my will.
“Item 5. To my nephew, O. H. Stevens, of Kansas City, Mo., one thousand dollars in consideration of his kindness and attention to his mother during her last illness and death.
“Item 6. I hereby revoke the donation in my will of three hundred dollars to the Baptist church of Loudenville, Ohio, toward the purchase of a pipe organ, the church having purchased one.
“Item 7. To my nephew, J. K. Miller Stevens, of Kansas City, Mo., I hereby give five thousand dollars in addition to the amount bequested to him in the body of my will, the same to be in full of all services heretofore rendered me and hereafter until the first day of January succeeding my death.
“Item 8. To the trustee of the Cemetery Association where my mausoleum may be built, the sum of one thousand dollars, the interest on the same to be applied in keeping up said mausoleum and in beautifying tbe grounds.
“Item 9. To my brother, "William Larwill,' I give the use during his natural life of the 80 acre tract of land I. own in Howard township, Knox Co., Ohio, being the same land purchased by me from George Sapp, described as being off the west end of lot number five (5) in the first quarter of the seventh (7) township and eleventh (11) range in said Knox County U. S. M. land, he paying the taxes that may be assessed upon the same.
“Item 10. To Mrs. Belle Critchfield, of Mount Vernon, Ohio, widow of John M. Critchfield, dec’d, the sum of five hundred dollars in consideration of her kind" ness to my deceased son, Arthur, during his life. This item is increased five hundred dollars, making in all one thousand dollars.
“Item 11. I hereby authorize my executor to bid in at sale any property upon which I may have a mortgage lien, at their discretion and sell the same in like manner when they deem it for the interest of my estate so to do.
“Item 12. My Mansfield Gas Stock, Humphreys Manufacturing stock, Ohio Brass Company stock, Citizens Bank stock of Mansfield, 1st National Bank stock of Bowling Green, Ohio, to be the last of my effects to be disposed of by my executors, the income from the same to be used in paying annuities., etc.
“Item 13. I give and. bequeath to my wife Susan M. Larwill, as trustee for the benefit of the Library Association of Mansfield, Ohio, five thousand dollars, to be expended by her in the purchase of books, or otherwise, as she may see fit, but to be expended within three years after my death. All bequests made in my will and codicil will be payable at the pleasure of my executors.
“I hereby nominate and appoint as my executors Paul Oliver of Perryville, Ohio, and Richard. Smith of Mansfield, Ohio.
“The residue of my estate I wish divided into twenty-four shares as follows, to-wit: To my wife, Susan M. Larwill, four shares; to my brother, Joseph, four shares; to my brother, William, two shares; to my sister, Elizabeth L. Miller, two shares; to my nephew, Paul H. Larwill, four shares; to my nephew, Miller Stevens, of Kansas City, Missouri, one share; to my niece, Julia Jenner, one-half share; to the First Baptist church of Loudonville, one-half share. The residue to be divided equally between my wife and my sister, Elizabeth, my brother, Joseph, and his son, Paul.
“I am mot unmindful of the fact that I have omitted from my will all mention of several relatives of mine. This omission is not accidental or inadvertent or from any unkind feelings on my part, but deliberate and determined, and for reasons which seem to be good and sufficient, I have decided to exclude from any participation in my estate any and all persons not mentioned in this, my will and codicil.
“In testimony whereof, I have hereunto set my hand and seal this 28th day of September, in the year ninteen hundred.
“John C. Larwill (Seal).
“Signed and acknowledged by said John O. Larwill as a codicil to his last will and testament, in our presence and signed by us in his presence.
“S. B. Leiter.
“H. SOATTERGOOD.
“The State of Ohio, Richland County, ss:
“We, S. Brainard Leiter and L. A. Strong, being duly sworn, in open court, this 10th day of September, A. D. 1901, depose and say that we were present at the execution of the last will and testament of John C. Larwill, deceased, hereunto annexed; that we saw said testator subscribe said will, and heard him publish and declare the same to he his last will and 'testament, and that the said testator at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint; and that we signed the same as witnesses at his request, and in his presence, and in the presence of each other.
‘ ‘ S. Brainard Leiter.
“L. A. Strong.
“Sworn to and subscribed in open court the day and year first above written.
“R. Brinkerhoee, Jr.
“Probate Judge.
“In the State of Ohio, Richland County:
“We, S. Brainard Leiter and H. Scattergood, being duly sworn in open court this 10th day of Sept., A. D. 1901, depose and say, that we were present at the execution of the codicil to the last will and testament of John C. Larwill, deceased, hereunto annexed; that we saw said testator subscribe said codicil and heard him publish and declare the same to be a codicil to his last will and testament, and that the said testator at the time of executing the same was of full age and of sound mind and memory and not under any restraint and that we sign the same as witnesses at his request and in his presence and in presence of each other.
“S. Brainard Leiter.
“H. Scattergood.
“Sworn to and subscribed in open court the day and year first above written'.
“R. Brinkerhofe, Probate Judge.
“The State of Ohio, Richland County, ss.
“I, Rocliff Brinkerhoff, Jr., judge of the probate court in and for the county, do hereby certify that the within foregoing and attached writing is a correct copy from the will record of said county now in said Probate Court, of tbe last will and testament of John C. Larwill, decéased.
“Witness my signature and the seal of said probate court at the city of Mansfield, this 24th day of Sept. A. D. 1901.
(Seal of Court.) . .
“R. Brinkerhoee, Jr.
“ Probate Judge.
“By L. V. Snider, Deputy Clerk.
‘ ‘ The State of Ohio, Richland County — ss.
“I, R. Brinkerhoff, Jr., judge and ex-officio clerk of the probate court within and for said county, hereby certify the foregoing to be a complete and true copy of the last will and testament of John C. Larwill, deceased, as the same remains on file and record in said court, together with the orders of said court thereon, including the order of probate thereof, and the testimony of witnesses to prove the same, as recorded in Record of Wills, Yol. 13, p. 257.
“Witness my official signature, and the seal of said court, at Mansfield, Ohio, this 25th day of Oct. A. D. 1901.
“(Seal of probate court of Richland county, Ohio.)
“R. Brinkerhoee, Jr.,
“Judge and Ex-officio Clerk of the Probate Court of Richland County, Ohio.
“The State of Ohio, Richland County — ss.
“I, R. Brinkerhoff, Jr., sole and presiding judge of the probate court in and for said county and State, the same being a court of record in said county, do' hereby certify that R. Brinkerhoff, Jr., whose genuine signature is attached to the foregoing signature is and was at the time of signing the same, judge of said Probate Court and ex-officio clerk thereof, and as such, full faith and credit are due his acts, and that the above and foregoing certificate is in due form of law, and made by the proper officer.
“In witness whereof, I have hereunto set my hand this 25th day of Oct., A. D. 1901.
“(Seal of probate court, Richland County, Ohio.)
“R. Brinkerhoee, Jr.,
“Judge of Probate Court within and for said County and State aforesaid.
“State of Missouri, County of Jackson, ss.
“In the Probate Court of Jackson County, September Term, 1901.
“I, H. P. Hersperger, clerk of the probate court of the county and State aforesaid, hereby certify that the foregoing instrument of writing, purporting to be a duly authenticated copy of the last will and testament of John C. Larwill, deceased, late of the County of Richland and State of Ohio, as proved and admitted to probate in said county and State, was on this day filed herein for record; and the court here having examined the same, and the proofs and certificates thereto attached, finds that the same was executed and proved according to the laws of this State, and now admits the same to record herein, in the same manner as wills executed and proved in this State.
“In witness whereof, I have hereunto set my hand, and affixed the seal of said court, at my office, in Kansas City, this 4th day of November, A. D. 1901.
“(Court Seal.)
H. P. Hersperger, Clerk.”
The judgment of probate and appointing administrator with the will annexed in Jackson county, Mo., are as follows:
“September Term, November 4th, 1901.
“In the matter of the estate of John C. Larwill, deceased. No. 5643.
“Now on this 4th day of November, 1901, comes Joseph H. Larwill, and presents to this court a duly certified and authenticated copy of the last will and codicil thereto of John C. Larwill, deceased, and it appearing to this court that the said last will and codicil was executed and proved in accordance with the laws of this State and that said Larwill died seized of real estate in the City of Kansas, County of Jackson, and State of Missouri.
“It is therefore ordered and adjudged that the said exemplified copy of the last will and codicil and the prohate thereof he filed and recorded as domestic wills are filed and recorded; that said Joseph H. Larwill he and he is hereby appointed administrator of the estate of said John C. Larwill, deceased, with the said will annexed; that he enter into and file in this court his bond as such administrator with the will annexed, in the penal sum of ten thousand dollars, and the said Joseph H. Larwill now presents his bond conditioned according to law with National Surety Company as surety, which said bond is by the court approved. ”

The testator left no children and no sister, but left surviving him his widow, Susan M. Larwill, and one brother, Joseph H. Larwill, who lived in the State of Montana at the time of the testator’s death.

After the testator’s death Joseph H. Larwill went to Ohio, and, at the suggestion of the defendants Oliver and Smith, executors in Ohio, went to Kansas City to make that place his residence, and was appointed administrator with the will annexed of said testator.

The testator’s brother, William, mentioned in the will, died before he did, leaving no descendants. His sister, Mrs. Miller, mentioned in the will, also died before the testator, leaving the defendant, Mrs. Ewing, her only heir. Mrs. Bartley and Mrs. Stevens, sisters' of the testator, were also dead, the former leaving the defendant, Julia B. Jenner, her daughter and only heir, and Mrs. Stevens left the following named children: the plaintiffs, George A. Stevens, and Oscar H. Stevens, and Edward A. Stevens, W. L. Stevens and J. K. Miller Stevens. Said Edward A. Stevens after-wards died before this suit was brought, leaving his children, the defendants Wm. L. Stevens, Mary C. Stevens and George F. Stevens, as his sole heirs. J. K. Miller Stevens died since the beginning of this suit, leaving as his only heirs at law Mary Catherine Stevens and George F. Stevens, infants of tender years. Mrs. Jenner and Mrs Ewing lived in-Ohio at the time of John O. Larwill’s death. The Stevens children lived in Kansas City.

The argument of this case on- behalf of plaintiffs has assumed an exceedingly wide range, but the points upon which the case turns are but few, and to these we will direct our attention.

It is claimed by plaintiffs that the court committed error in admitting in evidence over their objection documents claimed to be a certified copy of the will of John C. Larwill. The objection more specifically stated is that the document purports to he certified-by R. Brinkerhoff, Jr., as judge and ex-officio clerk of the probate court of Richland county, Ohio, and the signature of said R. Brinkerhoff, Jr., ex-officio clerk, is certified by the same person in the alleged capacity of sole and presiding judge of such probate court. The probate judge was ex-officio clerk of the same court and the probate record could not have been, under these circumstances, certified by any other person, or in'any other way. These documents, as they are called, were the copy of the will and its certificate of probate in the probate court of Richland county, Ohio, where the testator resided at the time of his death, duly authenticated in accordance with the act of Congress, and, the will thereafter on the 4th day of November, 1901, filed for record in the probate court of Jackson county, Missouri, and that court having examined the same, and the proofs and certificates thereto attached, found that the will was executed and proved according to the laws of this State, and admitted the same to record in the same manner as domestic wills. The record of the probate court of Jackson county admitting the will to probate is conclusive as against collateral attack. [Secs. 4634, 4635, R. S. 1899; Applegate v. Smith, 31 Mo. 166.]

But even if the will had not been admitted to probate in Jackson county, as it was executed and probated in. Ohio, in accordance with the law of this State and recorded in the office of the probate court of Jackson county, it was admissible in evidence in the same manner and with like effect as domestic wills. Our statute provides that any person owning real property in this State may devise the same by will, executed and proved according to the laws of this State. Section 4635, Revised Statutes 1899, provides that “authenticated copies of such wills, and the probate thereof, shall be recorded in the same manner as wills executed and proved in this State, and shall be admitted in evidence in the same manner and with like effect. ” Section 4636 provides that “any such will may be contested and annulled, within the same time, and in the same manner, as wills executed and proved in this State.” Section 4630 provides that all wills should be recorded by the clerk of the probate court, in a book kept for that purpose.” In construing these statutes in Keith v. Keith, 97 Mo. 223, it was held that a will executed and probated in another State in conformity with the law of this State, need not be proved anew here — but may be recorded here as domestic wills are required to be recorded, and when thus recorded a certified copy of such will and the probate thereof was admissible in evidence in this State. [Drake v. Curtis, 88 Mo. 644.]

But plaintiffs insist with much earnestness that the claim of defendants that John C. Larwill is proved by the record herein to have executed with the formalities of law a last will and testament devising his lands in Missouri and that such will was lawfully admitted to probate and proved in the courts of the States of Ohio and Missouri, is without foundation in fact and dis-proven by the record herein. It is only by evidence aliunde that the contention can for one moment be considered, and if we are right ini what we here intimated, that is, that the probate of the will in Ohio and in Missouri were judicial acts, and not open to collateral attack, then it is clearly untenable. Such a judgment is not only not open to collateral attack, but is like any other judgment of a court of competent jurisdiction; it stands as a judgment binding upon all the world, until set aside in the mode and within the time allowed by statute; its validity as a will cannot be attacked collaterally and if not set aside it becomes final and absolute. [Stowe v. Stowe, 140 Mo. 594; Jourden v. Meier, 31 Mo. 40; Creasy v. Alverson, 43 Mo. 13; Dilworth v. Rice, 48 Mo. 124; Banks v. Banks, 65 Mo. 432.]

As was said in Stevens v. Larwill, 110 Mo. App. 1. c. 159, ‘ ‘ The suit for partition cannot be regarded as a contest of the will. The will was duly probated and can be contested only by a proceeding in the manner required by sections 4622 and 4636, Revised Statutes. Such a proceeding has been held to be the exclusive remedy for contesting a will once admitted to probate and that its validity cannot be attacked in a collateral proceeding. [Jourden v. Meier, 31 Mo. 40; Stowe v. Stowe, 140 Mo. 594.]”

The judgment is clearly for the right party, and, the record being free from substantial error, it should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    CLARK v. CARTER, Trustee, et al., Appellants.
    Division Two,
    December 22, 1906.
    1. PLEADING: Equity: Completed Transaction: Sale of Land by Executrix: Power: Construing Willi The purchaser of land from the executrix, who received a part of the purchase money and a deed of trust for the balance, cannot maintain a suit in equity to have the court construe the will and determine her power thereunder to convey the land; nor can he commingle such a suit with an injunction against the trustee in the mortgage to prevent him from foreclosing. The transaction is a completed one, and the devisees and legatees under the will are not necessarily parties to it. The purchaser’s interest in the will is merely incidental, and in a controversy between him and her as to the validity of the sale or mortgage, the will might be introduced in evidence for the purpose of showing , her power to make the conveyance, but he cannot maintain a suit to have the provisions of the will enforced, and a petition having that purpose in view does not state a cause of action.
    2. -: Construing Will: By Whom Suit Maintained. Purchasers from an executrix, and other persons having no interest under a will, cannot maintain a suit to have the will construed.
    3. -: In Alternative: No issue. Where a doubt .has arisen as to the validity of a completed transaction, due to a mutual mistake of the grantee in a deed and of the executrix as to her power under a will to make the deed, or due to any like cause, the petition of the grantee, in order to state a cause of action, must make an issue. It cannot simply state the facts, and assume that the court will construe the will and determine therefrom what should be done. It could charge the deed to be void for reasons assigned, ask for its cancellation and a return of the purchase money; or it could allege the validity of the deed, offer to pay the balance of the purchase money, and ask that the deed of trust securing that balance.be cancelled. But it cannot simply set up the terms' of the transaction and the provisions of the will, and ask that the court construe the will, determine what are plaintiff’s rights thereunder, and grant him such relief as he may be entitled to.
    Appeal from Howell Circuit Court. — Horn. W. N. • Evans, Judge.

      Reversed and remanded.
    . Orchard & Livesay and O. L. Ray don for appellants.
    (1) The petition does not state a cause of action. It does not allege that the estate of Thomas Harber was finally settled, nor is it anywhere alleged that the debts of said estate have been paid off and discharged, nor does it allege that there were no other lands or sufficient other lands out of which to pay the legacies, nor does it set out provisions of the will of Thomas Harber, nor does it set out covenants or recitals of the executrix’s deed, all of which must be recited before the court could render judgment on the pleadings. Before a judgment could be rendered on a petition, it must state all the facts necessary to inform the court before the court could pass upon it without evidence, and if it fails to come up to that standard, it is bad on demurrer. Every substantial fact which the plaintiff in order to recover must prove, he must also allege in his petition so that an issue can be made thereon. Sidway v. Land & Live Stock Co., 163 Mo. 342. Matters informally stated are aided by verdict, but the omission of the essential averments cannot be so supplied unless the petition contains terms sufficiently general to comprehend them by fair and reasonable intendments. Town of Clinton v. Williams, 53 Mo. 141; Coleman v. Ins. Co., 69 Mo. App. 566; Hyatt v. Royal Pro. Assn., 106 Mo. App. 610; Overton v. Overton, 131 Mo. 559. A pleader should determine in his own mind the legal effect of the written contract or other document that underlies his case and plead it by its legal effect as he understands it and as he proposes to maintain it, otherwise a petition is demurrable. Estes v. Shoe Co., 155 Mo. 577; Anderson v. Gaines, 156 Mo. 664; Reilley v. Cullen, 159 Mo. 322; Schiffman v. Schmit, 154 Mo. 204. (2) The plaintiff first started out by filing a bill of interpleader and he may contend that it still amounts to1 that. Our contention is, of course, that he has departed from that in his amended petition. Carico v. Tomlinson, 17 Mo. 499. To entitle one to maintain a bill of interpleader he must be a mere disinterested stakeholder or trustee', impartial in so far as his conduct may influence the' judgment to be ultimately rendered, and he must act in good faith and haye reasonable cause for a real doubt as to which of the claimants is entitled to the funds. Little v. St. Louis Union Trust Co., 94 S. W. 890; Hartstock v. Christman, 90 S. W. 116; Arn v. Arn, 81 Mo. App. 133; Hathaway v. Fay, 40' Mo. 540.
    J. N. Burroughs and M. E. Morrow for respondent.
    (1) It is not necessary for the petition to allege that the estate of Thomas Harber had been finally settled, nor that the debts had all been paid, nor that there were other lands out of which to pay the legacies, nor that it should set out the provisions of the will in full,, nor recite the covenants of the .executrix’s deed. The rule of pleading in an action to construe a will is greatly relaxed. An allegation that a controversy has arisen between the plaintiff and the .executor regarding his duties and plaintiff’s rights under the will, that doubts have arisen as to its proper construction and that danger to plaintiff’s rights was apprehended, unless equity interfered and gave proper directions to the executor, ,states a good cause of action and will be upheld on'demurrer. First Baptist Church v. Robberson, 71 Mo. 326. A party interested in the provisions of a will, or required to take some action, or perform some duty, arising under the will, may have the instrument construed by the courts before acting at his peril. Mersman v. Mersman, 136 Mo. 244. Even a creditor of a legatee or beneficiary under the will may resort in the first instance to a court of equity for a construction of the will and ask for an application of the income of such beneficiary or legatee to a payment of his debt. Bank of Commerce v. Chambers, 96 Mo. 459. A trustee may ask a construction of a will by a circuit court, the declaration of a trust and its enforcement by a sale of the lands. Hamer v. Cook, 118 Mo. 476. An allegation that a deed has been executed, referring to the book and page where it is recorded, incorporates the' deed in the pleading, making it admissible in evidence, and will be upheld on demurrer. Elliott v. Bristow,'185 Mo. 15. (2) The question raised in point 1 of appellants’ brief is eliminated by the pleadings themselves. It is alleged in the petition that Margaret M. Harber undertook to convey the land to respondent under a power delegated to her as executrix under the will of Thomas Harber. There are sufficient allegations in the petition itself to bring that provision of the will and the instrument sought to be construed, before the court for construction. But in case it should be held not, the petition will be aided by the answers filed and they certainly contain full allegations of that matter. Ins. Co-v. Tribble & Pratt, 86 Mo. App'. 546; Bank v. Pettit, 85 Mo. App. 499 ; Casler v. Chase, 160' Mo. 418; Newton v. Newton, 162 Mo. 173. (3) Nor is it material by what name the bill be designated, whether it be deemed an action to construe a will, an interpleader, or an ordinary bill in equity asking for affirmative relief. A misnomer of the pleading will not defeat respondent’s right to relief. Jewett v. Boardman, 181 Mo. 647; Moberly v. Trenton, 181 Mo. 637. In a bill in the nature of an interpleader, the complainant is not required, as in strict interpleader, to be an indifferent stakeholder, without interest in the subject-matter. 5 Pomeroy’s Equity Jurisprudence ‘(Ed. 1905), sec. 60. (4) In equity, demurrer confesses the facts and the equities that arise from those facts. Williams v. Gerber, 75 Mo. App. 18; Dodson v. Lomax, 113 Mo. 555; Verdin v. St. Louis, 131 Mo. 26; Live Stock Co. v. Bank, 95 Mo. App. 251. Since the demurrer admits all the material allegations of the petition, if, taken as a whole, it states a cause of action, the demurrer must he overruled. Plant Co. v. Railroad, 115 Mo. 613. The court should give pleader the benefit of every reasonable intendment. Hood v. Nicholson, 137 Mo. 400: Facts which are necessarily implied from the direct averments in a pleading will be treated as having been pleaded. Weaver v. Harlan, 48 Mo. App. 319. Demurrer does not reach matters defectively stated and should be overruled. State ex rel. v. Edmonson, 71 Mo. App. 172. Objection to a pleading because of indefiniteness should be made by motion to make more definite and certain, and not by demurrer. Cockerill v. Stafford, 102 Mo. 57; McAdam v. Scudder, 127 Mo. 345; O’Connor v. Koch, 56 Mo. 253. After verdict, the petition should not be construed most strictly against the pleader, but should be construed most liberally with a view to substantial justice. Saxton v. Railroad, 98 Mo. App. 494; Bank v. Assurance Co., 106 Mo. App. 114; Munehow v. Munchow, 96 Mo. App. 553. (5) The administrator of the estate of Margaret M. Harber, the trustee in deed of trust, also trustee under the will, and all beneficiaries under the will of Thomas Harber, were proper parties to the determination of the matter in controversy. All of said parties were properly in court, and in determining the question raised on the pleadings, the answer, cross-bill or interplea filed by any of these parties must be considered. First Baptist Church v. Robberson, 71 Mo. 326; Butler v. Lawson, 72 Mo. 227; Haydon v. Marmaduke, 19’ Mo. 403. (6) It was ■ the duty of the court to render judgment adjusting the rights and equities of all parties, both plaintiff and defendants. R. S. 1899, sec. 767; Pettingill v. Jones, 30 Mo. App. 280; McCord, Adrar., v. McCord, 77' Mo. 166.
   FOX, J.

This cause is brought to this court by appeal on the part of G. H. Carter, trustee, and A. C. Donovan, administrator of the estate of Margaret H. Harber, deceased, from a decree and judgment of the circuit court of Howell county, Missouri. The defendants, G. H. Carter, trustee, and A. C. Donovan, administrator of the estate of Mrs. Harber, interposed a demurrer to the amended petition filed by the plaintiff, which demurrer was by the court overruled. Defendants Carter and Donovan refusing to further plead, judgment was rendered upon the face of the pleadings.

The vital question involved in this controversy being the correctness of the action of the trial court in overruling the demurrer, it is therefore essential to a proper understanding of the correctness of such ruling to here reproduce the petition. It was as follows:

“Plaintiff, for his amended bill and cause of action, states that on .the — day of April, 1892, one Thomas Harber died testate in Howell county, Missouri, seized and possessed of certain real and personal property, including the following described lands in said Howell county, to-wit, lots one and two of southwest quarter of section 30, township 24, range 8 west; that said Thomas Harber appointed his wife, Margaret M. Harber, executrix without bond of his last will and testament, a copy of which is hereto attached and marked ‘Exhibit A’ and made a part of this bill.
“Plaintiff further states that by the terms of said last will and testament said testator, among other things, ordered and directed that a portion of his real estate belonging to his estate should be sold sufficient to pay a legacy of $2,000 to each of the defendants, the Board of Missions of the Cumberland Presbyterian Church of St. Louis, Missouri, and the Educational Commission of the McAdow, Missouri, Ozark and Missouri Yalley Synods of the Cumberland Presbyterian Church; said will providing that said legacies should be paid only from the proceeds arising from the sale of real estate. Plaintiff states that after the death of the said Thomas Harber letters testamentary with will annexed were duly granted to the said Margaret M. Harber by the probate court of Howell county, Missouri, and she duly qualified as such executrix; that during the course of the administration of the estate of the said Thomas Harber, deceased, said Margaret M. Harber, executrix of said will, represented to this plaintiff that by virtue of the authority given her in said will she had full legal authority and power to convey an absolute fee Simple title to the real estate belonging to said estate; that she had repeatedly exercised such power and authority as such executrix and that her authority had never been questioned; that the then judge of the probate court of said Howell county, where such administration was then pending, advised and gave it as his opinion to this plaintiff that said will authorized and conferred on said executrix the full power to convey an absolute and perfect title to said real estate and that other attorneys advised plaintiff to the same effect; that plaintiff being desirous of buying a farm similar to the lands above described, and believing and relying upon the statements and representations aforesaid, was induced thereby to enter into a contract with said executrix for the purchase of said lands; that in pursuance of said contract, on the 24th day of February, 1898, for a consideration of $1,000, to said executrix paid by this plaintiff, said executrix made, executed and delivered to this plaintiff, her executrix’s deed conveying said lands to this plaintiff, which said deed is recorded in Boot 63, page 169, records of Howell county, Missouri; and also on same date executed her quit-claim deed to plaintiff to convey her life estate in said lands.
“Plaintiff further states that of the above $1,000 he paid said executrix one-half thereof in cash, and to secure the payment of his promissory note given said executrix for the remaining $500, he executed his deed of trust conveying said lands to defendant Gr. H. Carter, trustee, which said deed is recorded in Book 64, at page 37, deed records of Howell county, Missouri; that on the — day of February, 1898, Charles Harber, the adopted son of said Thomas Harber, deceased, mentioned in said will, for a nominal consideration, conveyed to this plaintiff by his quitclaim deed all his interest in said land as heir and residuary legatee; that, on the 17th day of April, 1901, said Margaret M. Harber departed this life without ever paying any part of the above-mentioned legacies,. and defendant A. C. Donovan was duly appointed administrator of her estate by the probate court of Clay county, Missouri, and duly qualified as such administrator; that as such administrator said A. C. Donovan came into possession of the above-mentioned note of $500 executed and delivered to Margaret M. Harber, executrix as aforesaid, which said note is now due and unpaid. Plaintiff states that prior to the maturity, of said note the two defendant church institutions hereinbefore mentioned, notified this plaintiff that they claimed the proceeds arising from the sale of said lands on the payment of said legacies and that same and no part thereof had ever been paid them by said Margaret M. Harber and that they claimed the right to re-sell said lands for the reason that said executrix had failed and refused to apply the proceeds arising from the sale of said-lands to the payment of said legacies. Plaintiff further states that defendant A. C. Donovan, administrator, and Gr. H. Carter, trustee, are now about to sell .said lands under and by virtue of said deed of trust executed by plaintiff aforesaid and that if they are not restrained and enjoined by this court from so doing they will sell same and this plaintiff will sustain irreparable injury for which he had no adequate remedy at law; that said injuries are caused by the failure and refusal of said Margaret M. Harber, executrix as aforesaid, to apply the proceeds of the sale of said real estate to the payment of said legacies; and from a possible mistake and misunderstanding on the part of both this plaintiff and said executrix as to her power under and by virtue of said last will. Plaintiff further states that he purchased said lands in good faith, relying on the statements and representations made to him as aforesaid by said executrix and legal counsel, and the recitals in said executrix’s deed, of the powers conferred on said executrix by said will. That he entered into possession of said lands to make it a home for himself and family, and made valuable improvements thereon by clearing new lands, fertilizing old lands, and building new fences, till said farm is now worth five hundred dollars more than when plaintiff purchased the same.
“Wherefore plaintiff prays a decree of this court construing said will as affecting the title of said land and the rights and equities of this plaintiff; and until the court can hear said cause and render a decree therein, plaintiff prays for a temporary injunction against defendants G-. H. Carter, trustee, and A. C. Donovan, administrator, restraining and enjoining them from selling said land until the decree of this court may be rendered directing him to whom said note ought to be paid. The amount due on said note is herewith tendered into court. And should such construction be to the effect that said will conferred upon said executrix power and authority to sell said lands according to the understanding of this plaintiff at the time he purchased same as aforesaid, and the professed understanding of said executrix, then, and in that event, this plaintiff is ready and willing to pay said note to defendant A. C. Donovan, administrator, and then prays that the title of said land he vested absolutely in plaintiff, discharged of all incumbrances whatsoever. But if said construction be adverse to such powers as said executrix claimed to have and pretended to exercise as aforesaid; or that by reason of said executrix’s failure to apply said trust funds in payment of said legacies, plaintiff’s title to said lands has failed, then in that event, plaintiff alleges and avers that there is a total failure of consideration for the note executed by plaintiff and delivered to said executrix as aforesaid, and a like failure of consideration for the five hundred dollars heretofore paid her. And that such a decree may be properly rendered, and complete justice done, plaintiff tenders into court his quitclaim deed to said lands to be delivered to defendant A. C. Donovan, should the court so decree, and prays that said Donovan, administrator, be ordered to deliver up said note given by plaintiff to said executrix, and that the same be cancelled and for naught held, and that the deed of trust given by plaintiff to secure the payment of said note be cancelled and for naught held, and that plaintiff be decreed a judgment against the defendant A. C. Donovan, administrator, of the estate of said Margaret M. Harber, deceased, for the sum of five hundred dollars paid said Margaret M. Harber as aforesaid; and for such other and further judgments and decrees as to the court may seem equitable and in good conscience. ’ ’

There were other parties made defendants in this proceeding, that is to say, The Board of Missions of the Cumberland Presbyterian Church and the Educational Commission of the McAdow, Missouri, Ozark and Missouri Valley Synods of the Cumberland Presbyterian Church, as well as one Milton Moore, who it was claimed was a trustee named in the will. The Board of Missions as well as the Educational Board of the ■ Presbyterian Church filed answers in this cause, in which they stated substantially and maintain that the deed under which plaintiff claims is void, and further that one Milton Moore, as trustee, had authority under the terms of the will to convey the property, and that Margaret M. Harber had no such authority, and prays the court to declare such executrix’s deed void and direct the trustee under the will, Milton Moore, to proceed to sell the land in question for the payment of their legacies. Milton Moore filed his answer, wherein he claimed to be the trustee appointed under the will, with power to sell the land in question, and practically adopts the allegations of the answers of the other defendant Boards. The demurrer to the petition as herein indicated, interposed by G-. H. Carter, trustee, and A. C. Donovan, was as follows:

“Now comes A. C. Donovan, as administrator of the estate of Margaret M. Harber, deceased, and demurs to the amended petition and bill of interplea of T. W. Clark for the reasons following, to-wit:
“1st. Because said petition states no cause of action.
“2d. Because by the statements in said amended bill of interplea of plaintiff he is not entitled to the relief sought and is not entitled to any relief.
£ £ 3d. Because said amended petition and interplea is vague, indefinite and uncertain and does not state facts sufficient to constitute a cause of action and under the statements therein the plaintiff is not entitled to any relief. ’ ’

On the 11th day of September, 1903, the court overruled the demurrer as herein indicated, to which action of the court the defendants Gr. H. Carter and A. C. Donovan then and there in open court objected and excepted at the time. The defendants filing such demurrer refused to further plead and elected to stand on their demurrer. "Whereupon the court on the 12th day of September and during the session of said court proceeded to make a finding and render judgment on the pleadings and did then and there on said 12th day of September, 1903, make and enter the finding and judgment, which, omitting caption, is as follows, to-wit:

“Now on this day comes the plaintiff by his attorney, M. E. Morrow, and comes the defendant A. C. Donovan, administrator of the estate of Margaret M. Harber, deceased, by Orchard & Livesay and O. L. Haydon, his attorneys, and come defendants the Board of Missions of the Cumberland Presbyterian, Church, the Educational Commission of the McAdow, Missouri, Ozark and Missouri Valley Synods of the Cumberland Presbyterian Church, and Milton Moore, trustee, by Green & Clark, their attorneys. And the court finds that the remaining defendants herein have been duly summoned and come not though solemnly called, but make default herein. And this cause coming on regularly for trial upon petition and demurrer filed by defendant, A. C. Donovan,, administrator, and answer of defendants, The Board of Missions of the Cumberland Presbyterian Church and the Educational Commission of the McAdow, Missouri, Ozark and Missouri Valley Synods of the Cumberland Presbyterian Church, and Milton Moore, trustee.
“And the court finds that no reply has been filed to the answer of the three last-named defendants and that said answers are thereby taken as confessed. And the court being fully advised in the premises overruled said demurrer.
“And the court finds that heretofore Thomas Harber died testate in Howell county,. Missouri; that his last will was duly probated by the probate court of said Howell county, on the 27th day of April, 1892; that in said last-named will said Harber provided that there should be paid to said defendant, The Board of Missions of the Cumberland Church ánd defendant, The Educational Commission of the McAdow, Missouri, Ozark and Missouri Yalley Synods of the Cumberland Presbyterian Church, each the sum of two thousand dollars; that said bequests should be paid from the sales of real estate only; that said Harber by his last will appointed the defendant, Milton Moore, trustee, with full power to sell real estate left by him, sufficient for the payment of said bequests; that at the time of his death the said Thomas Harber was the owner in fee of the following described real estate, situate in the county of Howell, in the State of Missouri, viz., lots one and two of the southwest quarter of section thirty, township twenty-four, range eight west.
“And the court finds that Margaret M. Harber was appointed executrix of said last will and entered upon the discharge of her duties as such about the 27th day of April, 1892; that the said Margaret M. Harber departed this life on the 17th day of April, 1901, and the defendant, A. C. Donovan, was duly appointed administrator of her estate and is now in the discharge thereof; that on the 24th day of February, 1898, for the consideration of one thousand dollars, the said Margaret M. Harber, as executrix of the estate of said Thomas Harber, deceased, undertook to convey to the plaintiff herein, the tracts of land last above described and executed to him a deed therefor, of record in the office of the recorder of deeds of said county, in book 63 at page 169; that in payment for said land plaintiff paid to the said executrix the sum of five hundred dollars in money and executed and delivered to her a note of the date last aforesaid, for the sum of five hundred dollars, and executed and delivered to the defendant, Gr. H. Carter, trustee, a deed of trust, of record in the office of said recorder of deeds in book 64 at page 37, by which he conveyed to the1 said Carter the said tracts of land as security for the payment of said note, and the court finds that said executrix, as such, has no power to convey the title to said tracts of land and that the deed by her to the plaintiff conveyed no title to the same; that.the payment by plaintiff to said executrix of the said sum five hundred dollars and the execution and delivery by him to her of said note for a like sum and the execution and delivery by him to Gr. H. Carter, trustee of said deed conveying said lots of land to secure the payment of said note, were without consideration and were obtained under mutual mistake of facts.
“And the court finds that the said legacies were not paid by the said Margaret M. Harber. And the court finds that plaintiff is entitled to recover from the estate of the said Margaret M. Harber, deceased, the said sum of money so paid her as consideration .of said land aforesaid, also that said note for the remainder of said consideration and the deed of trust securing same should be deemed cancelled and for naught held.
“And the defendant, A. C. Donovan, elects to stand upon his said demurrer and refuses to plead further. It is therefore adjudged and decreed by the court that judgment for want of answer be, and is hereby rendered, in favor of the plaintiff and against the said A. C. Donovan, administrator of the estate of Margaret M. Harber, deceased.
“And it is further ordered that said note for five hundred dollars, dated February 24, 1898, and the said deed of trust executed by the plaintiff conveying said tracts of land to Gr. H. Carter, trustee, for the said Margaret M. Harber, executrix, of the date and of record as last aforesaid, be, and the same are hereby cancelled and for naught held.
“And the court further adjudges and decrees that plaintiff have and recover of the defendant A. C. Donovan, administrator of the estate of Margaret M. Harber, deceased, the sum of five hundred dollars on account of the sum so paid by the plaintiff to her as consideration for said lots of land to be made and levied of the property in his hands, or that may come into his hands belonging to the estate of said Margaret M. Harber, deceased.
“And it is further ordered by the court that said Milton Moore, as trustee, sell said lands free and clear of all claims of all the parties to this cause, either at public or private sale, on such terms as he may deem best and that out of the proceeds pay each of the beneficiaries before mentioned, the sum of two thousand dollars. That if the proceeds of such sale be not sufficient to pay both 'of said bequests in full, then same he paid pro rata; that should there he a surplus after said bequests are satisfied, then the same shall be paid to Charles Harber as provided in said will, or to his assigns.
“It is further ordered that said defendant Donovan, administrator as aforesaid, pay out of the estate of the said Margaret M. Harber, deceased, all costs incurred herein, except the costs made by Milton Moore and the two beneficiaries herein. And that the costs made' by the three last-named defendants be paid by the plaintiff and that execution issue accordingly.
“It is further ordered, adjudged and decreed by the court that the temporary injunction heretofore granted plaintiff against defendants Gr. H. Carter, trustee, and A. C. Donovan, administrator, be and the same is hereby made perpetual.”

Timely motions for new trial and in arrest of judgment were filed by the defendants who are appealing in this cause, which were by the court overruled, and from the decree and judgment rendered in this cause, this appeal was in proper form prosecuted to this court, and the record is now before us for consideration.

Opinion.

At the very inception of this controversy upon the disclosures of the record we confess that great difficulty confronts us in determining the precise nature and character of this proceeding, as well as the relief sought hy the amended petition upon which the decree and judgment of the court is predicated. While we fully agree with learned counsel for respondent that it is immaterial by what name the hill is designated; whether it he deemed an action to construe a will, an interpleader. or an original bill in equity asking for affirmative relief; yet this does not dispense with the essential requirement that the hill must show upon its face a clear right of the plaintiff to maintain such an action, and the allegations of the hill must fully warrant the finding and judgment of the trial court based upon it.

We have carefully analyzed the amended petition as well as the answers of the parties defendants who filed answers in, this cause upon which pleadings the learned trial judge entered the judgment and decree as herein indicated, and we are of the opinion that such decree and judgment is manifestly erroneous. It is apparent upon the face of the petition that this controversy is one solely between the plaintiff and A. C. Donovan, administrator of the estate of Margaret M. Harher, and the trustee in the deed of trust given to secure the payment of the balance of the purchase money in the sale of the land hy Margaret M. Harher to the plaintiff. The business transaction of the sale of the land designated in. the petition hy Margaret M. Harher to the plaintiff, the execution by her of a deed to the plaintiff, the payment of $500 of the purchase money, and the execution of a note for $500; the balance of the purchase money, and a deed of trust to secure the payment of such note, are a completed transaction, and the rights and remedies relative to such transaction, or arising from it, concern no one except the parties to it. It is clear and it is made manifest upon the face of the petition that the purpose of this proceeding is to simply have the court determine whether a sale of real estate fully completed with all the title papers fully executed, is valid or invalid, and it is sought to obtain the judgment of the court upon the validity of such sale upon the theory that plaintiff has the right to proceed in equity by a bill of interpleader in which it is sought to have the chancellor construe the provisions.of a will executed by Thomas Harber in his life time.

There is nothing unusual in courts of equity entertaining jurisdiction of suits to construe wills, for it is a part of, the ancient and well-defined jurisdiction of the courts of chancery to construe wills and declare the trust created thereby, but this by no means is to be construed as authorizing any person, regardless of the relation in which they stand to the will, to maintain such a proceeding. "Where an executor or trustee named in a will has any doubt as to the proper construction of the terms of the instrument they are required to enforce and carry out, either may very appropriately institute a proceeding to have the will properly construed and the duties of the executor or trustee defined by the decree of the court, or where devisees or legatees are entitled to certain rights and claims under the provisions of a will and the executors or trustees named in the will refuse or fail to execute and carry out the provisions of the will as contemplated by the testator, courts of equity may entertain suits instituted by such legatees or devisees for the purpose of construing, and as well as enforcing, the provisions of the will as construed by the court. As applicable to this will defendant Moore, who claims to be the duly appointed trustee in the will to execute certain conveyances, and the Cumberland Presbyterian Church organizations that are made defendants in this proceeding, if they are in doubt as to the proper construction of the terms of the will, might very appropriately institute a proceeding to have such will construed and its provisions enforced in accordance with the proper construction as decreed by the court, but upon the facts as stated in the petition this plaintiff has no such interest in the will of Thomas Harber as would authorize him to maintain an action in a court of equity to have such will construed and its provisions enforced. His interest in the will is merely incidental to a business transaction between him and Mrs. Harber which has been fully completed, and in a controversy between the plaintiff and the estate of Mrs: Harber, or of any one else, respecting the validity of the sale of the land by Mrs. Harber to the plaintiff, such will might be introduced in evidence for the purpose of showing the power to make the conveyance or the want of power to make it, and the court proceeding with that case, as an incident in the trial of it, might be called upon to construe particular provisions of the will, but that this plaintiff cannot, for the purpose of obtaining the judgment of a .court upon a past transaction which has been fully completed, institute this proceeding, thereby bringing parties into court who are interested in the provisions of the will, and ask the court to adjudicate the differences between him and the estate of Mrs. Harber upon a transaction which is past and fully completed, and construe the provisions of the will and enforce them in accordance with such construction, is in our opinion too plain for discussion. In other words, the controversy between the plaintiff and the estate of Mrs. Harber as to the purchase money paid and the note and deed of trust for the balance of the purchase money, cannot be litigated or determined upon the allegations of the petition in this proceeding upon the theory that this is a proceeding-asking the court to construe the provisions of a will. It is equally clear that the plaintiff cannot by making parties defendants who have the right to have this will construed, bring them into court and then, by their answers asking for the construction of the will and the enforcement of its provisions, convert the proceeding into an original one by such defendants and thereby obtain for them the relief to which they would have been entitled had they instituted an original proceeding for that purpose. The defendant Moore and the church organizations were not proper parties to this proceeding, and, as before stated, the only parties who have any interest in the controversy respecting the sale of the land by Mrs. Harber to the plaintiff, are the administrator of her estate and the trustee in the deed of trust given to secure the promissory note for the balance of the purchase money. It is manifest that plaintiff in this suit is proceeding upon the theory that he can have the controversy between him and the estate of Mrs. Harber adjusted and litigated in a proceeding to construe the will of Thomas Harber.. This cannot be done. Doubtless plaintiff, in the purchase of the land from Mrs. Harber, acted in perfect good faith, as indicated by the allegations in the petition, and there is nothing disclosed by the record which would indicate otherwise, but if he failed to obtain any title to the land by reason of want of power under the provisions of the will in Mrs. Harber to convey the same, and he is seeking to recover the purchase money paid and the cancellation of the note and deed of trust, then his remedy, if he has any, about which we express no opinion, must be sought against the estate of Mrs. Harber, deceased, and the 'trustee in the deed of trust, along lines which are frequently recognized by courts of equity, that the sale was made through mistake of both law and fact, and that the note executed for the balance of the purchase money, as well as the deed of trust, are without consideration; but in order to state a cause of action along those lines the plaintiff must take a position that there was no power in Mrs. Harber to make such sale, and the allegations in the petition must be in harmony with the position taken upon that subject.

It will be observed that tbe petition in this cause neither alleges that there was no power nor that there was power in Mrs. Harber to make the sale, but simply proceeds npon the theory that he can state the facts connected with the making of such sale npon the theory that the court will construe the will and determine the validity of a business transaction that has been long since fully completed. This cannot be done. Thus it follows that the amended bill filed by plaintiff fails to state sufficient facts to authorize the court to render a decree construing the provisions of the will of Thomas Harber or a judgment enforcing the provisions of such will in accordance with such construction. It also •fails to state a cause of action against the defendant A. C. Donovan, administrator of the estate of Mrs. Harber, deceased, and Gr. H. Carter, trustee in the deed of trust, for the recovery of the purchase money paid and the cancellation of the note and deed of trust given for the balance of the purchase money, which would support the judgment and decree rendered in the cause upon that-branch of this case. The petition does not state a cause of action upon the theory that plaintiff has a right to have the judgment of the court as to the proper party to whom to pay the balance of the purchase money, for. it is manifest from the allegations in the petition that, if the plaintiff is to pay the balance of the purchase money evidenced by his note to Mrs. Harber, there is only one person to whom such money must be paid and that is the administrator of the estate of . Mrs. Harber. If Mrs. Harber had no power to execute the trust indicated in the will in respect to the sale of land to pay the legacies to the church organizations, then a sale made'by her without any such power would be void, and the fund arising from such sale could in no sense be a trust fund and such church organizations would have no cause of action to recover such fund; and, while their rights to have the land sold by the proper and legally authorized trustee would not be affected by such unauthorized sale by Mrs. Harber, yet neither they nor the plaintiff would be in any position to ask the court to decree that they were entitled to a fund realized by an unauthorized sale of the land.

- In support of the contention of respondent that this is a good pleading for the purpose of having the will of Thomas Harber construed, our attention is directed to the case of First Baptist Church v. Robberson, 71 Mo. 326. A careful examination of that case will clearly demonstrate that it is in perfect harmony with the conclusions reached in this cause, as herein expressed. In other words, it is clearly pointed out in that ease that executors and trustee, or other persons interested in the provisions of a will, may institute an equitable proceeding for the purpose of construing the provisions of the will and defining duties of the execut- or or trustee, for the purpose of forestalling any wrongful acts in the administration of the estate or anticipated mischief, which may result during the course of the administration. That case nowhere indicates that a proceeding may be maintained upon the theory of construing a will for the purpose of adjudicating the validity of past occurrences and transactions which are completed, but on the other hand it is strongly intimated that such a proceeding cannot be maintained, and such is not the purpose and object sought by suits for the construction of wills. That case was one in equity for the purpose of having a will construed. One of the controverted questions arising in it was as to whether the jurisdiction was in the circuit court as a court of equity or in the probate court under the provisions of the statute. In the discussion of that proposition, Sherwood, J., very clearly pointed out the nature and character of actions to construe wills and the purposes and objects sought by such proceeding. He said: “The powers invoked here are not within the scope, grasp or jurisdiction of probate courts; but powers possessed alone by courts of equity — possessed independent of and long anterior to the existence of the statute mentioned — possessed for the beneficent purpose of affording relief where no adequate redress can be afforded under the ordinary course of legal procedure. Now it has been determined that probate courts in this State possess no chancery powers. [Presbyterian Church v. MeElhinney, 61 Mo. 540.] But it is only in a tribunal possessing such powers that an executor or administrator can file a bill in the nature of a bill of interpleader, in order to have his duties defined and his pathway marked out by the decree of a court fully competent to adjudicate upon the complex questions which sometimes arise in the course of administration. And the reason why a court of equity is the only tribunal thus competent is because .a court of law can deal alone with past occurrences, while the peculiar province and distinguishing feature of the court of equity is to administer preventive justice; to entertain measures of precautionary relief; to forestall wrongs or anticipated mischief; and in affording its comprehension and wide-reaching relief, extend its arm in futuro; arrest the progress of impending evils and thwart.the threatened danger.”

Our attention is also directed to the cases of Mersman v. Mersman, 136 Mo. 244; Bank of Commerce v. Chambers, 96 Mo. 459; Hamer v. Cook, 118 Mo. 476. These cases in no way conflict with the conclusions as herein expressed applicable to the case at bar. The rule announced that parties interested in the provisions of a will, who are required to take some action or perform some duty arising under the will, may have the terms construed by the courts before acting, is conceded and expressly stated in this opinion. But on the other hand, it is nowhere indicated in those cases that where a transaction has been fully completed, simply because the provisions of the will may have been an incident in the entering into and completing of snch transaction between the parties, that a plaintiff may maintain a suit for the construction of such will and thereby have such past occurrences and completed transactions adjudicated and settled.

We deem it unnecessary to pursue this subject further. We have indicated our views upon this proceeding which results in the conclusion that the decree and judgment rendered in this cause must be reversed. If the sale to plaintiff was void, whatever remedy he may have (about which we express no opinion), must be litigated between the parties as herein suggested. A. C. Donovan, administrator of the estate of Mrs. Harber, and G-. H. Carter, trustee, have been served with process and are in court. The injunction, is also in force and if the plaintiff is in a position to file an amended petition . stating a cause of action along the lines herein indicated, we are inclined to give him an opportunity of so doing, or if he prefers to adjudicate the validity of the sale made by Mrs. Harber to him in his defense to the proceeding to enforce the collection of the balance of the purchase money, then he may dismiss this proceeding and adopt that course.

Entertaining the views as herein expressed, the judgment and decree of the trial court should be reversed and the cause remanded, and it is so ordered.

All concur.