« 이전계속 »
17, 1881, and recorded September 13, 1881, boundary line of the states of Texas and Arconveying by the same description the land kansas, at or near Texarkana, running in a described in the deed from Jacob R. Beck- northwesterly direction to a point on the with to the railway company. A deed in the Mississippi river in the state of Missouri opsame form from George B. Clark and wife posite or nearly opposite Cairo in the state of to the Little River Valley & Arkansas Rail- Illinois, including all and singular the lands, way Company, dated August 17, 1881, and tenements, and hereditaments of the said railrecorded September 12, 1839, in Book 13, p. way company at any time owned or acquired 546, and re-recorded July 1, 1890, in Book by it or by said receivers, and all its rail15, p. 187, conveying by the same description road tracks, rights of way, main lines, branch the land set out in the deed from Beck with lines, extensions, sidings, superstructures, deto the railway company.
pots, depot grounds, station houses, engine It was admitted on the trial: That on the houses, car houses, freight houses, wood hous29th day of November, 1851, the Little River es, sheds, watering places, work shops, maValley & Arkansas Railway Company in Mis- chine shops, bridges, viaducts, culverts, fensouri was consolidated with the Texas & St. ces, and fixtures at any time owned or acLouis Railroad Company, and conveyed to it quired by said railway company, together all its property, and the two together became with all leases, leased or hired lands, leased the Texas & St. Louis Railroad Company in
or hired railroads of said railway company, Missouri and Arkansas. It was also admit- and all its locomotives, tenders, cars, carriages, ted that on January 12, 1894, William R. coaches, trucks, and other rolling stock, maWoodward was appointed as receiver of the chinery, tools, weighing scales, turntables, property of the Texas & St. Louis Railroad rails, wood, coal, oil, fuel, equipment, furniCompany in Missouri and Arkansas, in a ture, and materials of every name, nature, suit wherein the Central Trust Company of and description at any time owned or acNew York is plaintiff and the Texas & St. quired by said railway company or purchased Louis Railroad Company defendant, which by said receivers, together with all the corsuit was pending in the United States circuit porate rights, privileges, immunities, and court for the Eastern district of Missouri. franchises of said railway company, including That on the 13th of April, 1885, Samuel W. the franchise to be a corporation, and all the Fordyce was appointed receiver of the prop- tolls, fares, freights, rents, incomes, issues, erty of the Texas & St. Louis Railroad Com- and profits thereof, and all the reversion and pany in Missouri and Arkansas and another, reversions, remainder and remainders thereof in a suit pending in the circuit court of the (except, however, lands, real estate, and other United States for the Eastern district of Mis- property not necessary for or used or acquired souri, wherein the Central Trust Company of for the purposes of operation of said railNew York was complainant and said Texas way), including all the said mortgaged prem& St. Louis Railroad Company in Missouri ises and property in said decrees directed to and Arkansas was defendant, in place of Re- be sold, whether owned at the commencement ceiver Woodward, resigned. It was further of said suits or since acquired by the said admitted by the defendant that by decree of Texas and St. Louis Railway Company in the United States circuit court for the Eastern Missouri and Arkansas and by William R. division of Missouri, dated December 16, Woodward, as receiver thereof, and by Sam1885, in a suit wherein the Central Trust uel W. Fordyce, as receiver thereof." Also a Company of New York was plaintiff and the deed from the "Bondholders' Committee,' Texas & St. Louis Railroad Company in Mis- William Mortense et al., to the St. Louis, Arsouri and Arkansas was defendant, the prop
kansas & Texas Railway Company, dated erty of every kind of said railroad company May 4, 1886, and recorded in Dunklin county, was ordered to be sold by George H. Shields. in Book 12, page 7, conveying by the same special master, in accordance with the course description the same property. It was then and practice of that court, and that at such admitted that "S. W. Fordyce was appointed sale the complainant or any parties or in
receiver of the St. Louis, Arkansas & Texas terveners might become purchasers.
Railway Co. in Arkansas and Missouri May Plaintiff read in evidence a deed from 14, 1859, by the circuit court of the United George H. Shields, special master, to Wil- States for the Eastern division of the district liam Mortense, George Capell, Louis S. Wolf, of Missouri; that on June 24, 1889, by order M. Gersheimer, and J. W. Paramore, styled of the same court, A. H. Swanson was apthe "Bondholders' Committee,” dated April 29, pointed coreceiver with S. W. Fordyce of the 1886, and recorded in Book 12 of the Land same property." Record of Dunklin County, at page 1, convey- Plaintiff next read in evidence a decree of ing the following property: "All the right,
foreclosure and sale made in the circuit court title, and equity of redemption of the Texas of the United States for the Eastern division and St. Louis Railway Company in Missouri of the Eastern judicial district of Missouri and Arkansas, or of S. W. Fordyce, receiver, in a suit then pending in said court wherein or of any of the parties to this case, in and the Central Trust Company of New York and to all and singular the railroad of the Texas the Mercantile Trust Company were complainand St. Louis Railway Company in Missouri ants and the St. Louis, Arkansas & Texas and Arkansas, extending from a point on the Railway Company in Arkansas and Missouri
was defendant, styled: "In Equity. Nos. thereof." Also a deed dated February 12, 3030 and 3121. Consolidated Cause,"-which 1891, signed, “Samuel W. Fordyce [Seal), A. said decree was made at the March term, H. Swanson (Seal], as Receivers, Grantees, 1890, of said court, and ordered the sale of Louis Fitzgerald, Purchasing Trustee," --recitall the property of the St. Louis, Arkansas & ing that it is made by order of the circuit Texas Railway Company in Arkansas and court of the United States, in pursuance of Missouri to be made by David P. Dyer, spe the decree and report above offered in evicial master. Said special master was ordered dence, acknowledged February 17, 1891, reto make said sale, in accordance with the corded April 29, 1891, in Book 15, pages usual practice of the court, to the highest 579 to 585, conveying "any and all property bidder, at such time and place as he should of the said railroad company vested in or himself appoint, having given notice required | standing in the name of the parties of the by the order. It was next admitted that the first part, or either of them, as receivers of report of the sale of this property to Fitz said defendant railroad, and to all property gerald, as trustee, has been made, and further pertaining to or appertaining to said railroad, admitted that that report of sale was con and property which they, as said receivers, firmed by the court. Plaintiffs then read a have in any manner acquired or may acquire deed from David P. Dyer, special master, and during their said receivership; said railroad the St. Louis, Arkansas & Texas Railway and property being more fully described as Company, to Louis Fitzgerald, styled the “pur- follows: (including the length of miles of chasing trustee," dated February 5, 1891, and road and counties through which it runs]." recorded April 29, 1891, conveying the follow. Also, “all its lands and rights of way, depots, ing property: "All the right, title, and eq- depot grounds, shops and shop grounds and uity of redemption of the St. Louis, Arkansas yards, its leases, leased and hired lands, and and Texas Railway Company in Arkansas all its rails, railways, sidings, Switches, and Missouri, and of S. W. Fordyce and A. bridges, fences, turntables, water tanks, and H, Swanson, receivers, and of any of the par all other buildings, structures, or fixtures ties to this cause, or of either of them, in and whatever; and all other property of every to all and singular the railroad of the St. character or description, real, personal, or Louis, Arkansas and Texas Railway Com- | mixed, wheresoever situate, with all the [tipany in Arkansas and Missouri, its main line tle] corporate rights, privileges, immunities, beginning at Bird's Point, on the Mississippi and franchises of the said railroad company, river, in Mississippi county, Missouri, opposite and all the reversion and reversions, remainor nearly opposite Cairo, Illinois, and extend- der and remainders, thereof, including all the ing southwestwardly through the counties of said mortgaged premises and property in said Mississippi, New Madrid, and Dunklin, in the decree directed to be sold." Also a deed from state of Missouri, etc. [describing the lines of Louis Fitzgerald, purchasing trustee, to the railroad and branches], the total number of St. Louis & Southwestern Railway Company, miles of main line and branches aforesaid be dated February 9, 1891, and recorded April ing about five hundred and eighty-two miles; 29, 1891, conveying the property acquired by also all its lands and rights of way, depots
him from David P. Dyer, special master. and depot grounds, shops and shop grounds Next, an entry in the circuit court, recorded and yards, its leases, leased and hired lands, at the July term, 1891, as follows: "By and all its rails, railways, sidings, switches, agreement of parties, the St. Louis and bridges, fences, turntables, water tanks, and Southwestern Railway Company is made parall other buildings, structures, or fixtures ty plaintiff herein, and this cause is continwhatsoever; also all its locomotives, tenders, ued.” Plaintiffs then introduced evidence tendcars, carriages, coaches, trucks, and other ing to show defendant in possession of the rolling stock and equipment, its machinery, premises sued for at the time of the comtools, weighing scales, wood, coal, oil, fuel, mencement of the suit, and rested. machinery, and implements, and all other Defendant, to sustain the issues on his part, property of every character or description, offered evidence as follows: (1) Record of the real, personal, or mixed, and forever situate, plat of the town of Malden, recorded in Book together with all the real estate, real, corpo 3, p. 275, tending to show that the line rate rights, privileges, immunities, and fran between sections 10 and 15, township 22, chises of the said railway company, includ range 10, was the south boundary line of the ing the franchise to be a corporation; and all town of Malden. (2) A general judgment, the tolls, fares, freights, rents, income, issues, rendered by the circuit court of Dunklin counand profits of the said railroad, and all inter ty, in favor of Moses M. Lawson, as adminisest, claims, and demands of every nature and trator of the estate of Brumfield Beckwith, description; and all the reversion and rever deceased, against Jacob R. Beckwith, for sions, remainder and remainders, thereof, in- $651.01, dated June 3, 1881. (2a), A deed cluding all the said mortgaged premises and from Margaret P. Beckwith to Jacob R. Beckproperty in said decrees directed to be sold at with, conveying 15 acres off of the east side of any time owned or acquired by said the St. the N. E. 14, N. W. 14, section 15, township 22 Louis, Arkansas and Texas Railway Company N., range 10 E., dated July 1, 1881, and rein Arkansas and Missouri, or by S. W. corded July 7, 1881. (3) A sheriff's deed unFordyce and A. H. Swanson, as receivers der execution issued upon the judgment recov
ered June 3, 1881, in the circuit court of Dunk- class of cases that as a general rule any afterlin county by Moses M. Lawson, administra- acquired estate will inure, by virtue of the tor, against Jacob R. Beckwith, to Moses M. covenants, the party claiming under the Lawson, dated December 2, 1881, and record- conveyance and his heirs and assigns, by died December 2, 1881, conveying, with other rect operation of law, with the same effect, to lands, the N. E. 44, N. W. 14, section 15, town- all intents and purposes, as if such estate had ship 22, range 10. (4) A deed from M. M. originally passed by the deed." It makes no Lawson to George B. Clark, dated February difference that the covenantor may not have 11, 1882, and recorded February 11, 1882, con- had title at the time of the execution of the veying 15 acres off of the east side N. E. 14, N. covenant. In such circumstances the subseW. 14, section 15, township 22, range 10 E. quently acquired title inures to the benefit of (4a) The record of a deed from George B. the original grantee or covenantee or his asClark to John G. Rapp, dated October 6, 1881, signs to the extent of the land previously collrecorded January 6, 1885, in Book 7, p. 512. veyed. From these considerations it must
Objected to by counsel for plaintiffs, be- follow as a sequence that the court did not err cause the original deed has not been account- in refusing the second instruction asked by deed for. Objection sustained, and defendant fendant. It did not cover the issues and facts excepted.
of the case. There can be no question but that the judg- It is contended by defendant that the eviment in favor of M. M. Lawson, administra- dence did not show that plaintiffs had actor, against J. R. Beckwith, which was ren- quired title to the land of the Texas & St. dered in the circuit court of Dunklin county Louis Railway Company, for that the deed on the 3d day of June, 1881, was a lien from from George H. Shields, special master in that time on until the expiration of three years chancery, to Mortense et al., called the "Bondon all real estate which Beckwith then owned holders' Committee,” is inoperative to pass in said county, or which he thereafter ac- any title to the premises in question, because quired during the existence of such lien; and of the following language contained in such whatever interest George B. Clark may have deed, to wit: “Except, however, lands, real acquired from him by deed in the land in estate, and other property not necessary for or question during that time was subject to the used or acquired for the purpose of operation lien of that judgment. It therefore logically of said railway.” The evidence showed that a. follows that the sheriff's sale under execu- depot was erected on the land in 1881, that tion issued upon said judgment, and the deed transfer platforms had been constructed, and executed by him to Lawson in pursuance side tracks put down, as the business of the thereof, vested in Lawson whatever title J. road might require, and as it became necesR. Beckwith had in said land upon which the sary. This evidence clearly showed that the judgment was a lien. Had the evidence stop- land was not within the exception. ped here, it would have shown the legal title Another contention is that the court reto have been outstanding in Lawson at the fused to give the third instruction asked by time of the commencement of the suit; but defendant, to the effect that the deed from the record shows that the evidence went fur- Shields, special master in chancery, to Morther, and showed that Lawson, by deed dated tense et al.; the deed from the committee for February 11, 1882, and recorded the same bondholders to the St. Louis, Arkansas & Texday, sold and conveyed to Clark 15 acres off as Railway Company; the deed from D. P. of the east side of the N. E. 14 of the N. W. Dyer, special master in chancery, to Louis 14 of section 15, township 20, range 10. He Fitzgerald; the deed of S. W. Fordyce and and his wife had before that time, to wit, A. H. Swanson, receivers, to said Fitzgerald; August 17, 1881 (recorded September 12, 1889, and the deed from Fitzgerald to the St. Louis and again July 1, 1890), conveyed by deed & Southwestern Railway Company, introduced of general warranty containing the words, by plaintiffs,-did not convey or pass any title "grant, bargain, and sell, convey and con- to the premises. This instruction was asked firm,” to the Little River Valley & Arkansas upon the ground of the insufficiency and unRailway Company, under which plaintiffs certainty of the description of the land intendclaim title, the same piece of land; and by ed to be conveyed. The property is described reason of the covenants contained in their in the deed of Dyer, special master in chandeed, whatever title or interest George B. cery, and in the receivers' deeds, as follows: Clark then owned or subsequently acquired in "All and singular the railroad of the St. Louis, and to said land inured to the benefit of Arkansas and Texas Railway Company in plaintiffs, they being the grantees of the Lit- Arkansas and Missouri, * * * through the tle River Valley & Arkansas Railway Com- counties of * *
and Dunklin, in the pany. Norfleet v. Russell, 64 Mo. 176; Bogy state of Missouri * *; also all its lands v. Shoab, 13 Mo. 381. There are many other and rights of way, depots, and depot grounds, authorities to the same effect. Rawle, in his
together with all the real estate work on Covenants for Title (section 248), % $ of said railway company, * * * says: “Where, however, the deed does con- wherever situated. * * *" A description of tain such recital or averment, and more espe
land not more definite was held sufficient to cially where it contains certain of the cove- pass the title in Railway Co. v. Maffitt, 94 Mo. pants for title, it has been held by a large 56, 6 S. W. 600. The land in question in that case was a part of a tract of 100 feet on the Action by George W. Berberet against Enos south side and 150 feet on the north side of B. Berberet and others to set aside a will. the railroad track, donated to the Missouri Plaintiff had judgment, and defendants apPacific Railway Company by the owner in peal. Reversed. platting the land adjacent to said road. The This is a suit to set aside the will of Eve court said: "While this description does not Catharine Berberet, late of Knox county. set out specifically the lot in controversy, yet For grounds for setting aside the will the petithere was, we think, no error in holding it tion alleges: (1) That the instrument of writsufficient to identify the property and to pass ing admitted to probate is not the last will the title." The land in question is a part of a of the deceased, Eve Catharine Berberet, for larger tract acquired for a right of way and the reason that it is not signed, published, depot grounds through which the railroad was and declared by two attesting witnesses, upconstructed, on which a depot was erected and on its face or anywhere upon it, in writing, side tracks laid. It would be impracticable, to be such will, and that it is not executed in conveying railroad properties under such and attested by at least two witnesses, accircumstances, to require a specific description cording to law.
cording to law. (2) That any or all proof to by metes and bounds of all depot grounds, and show that the will was signed, attested, pubgrounds used for side tracks and stations. lished, and declared in the presence of at least The description we think sufficient, under two attesting witnesses, and that they, at her the circumstances.
request and in her presence, subscribed said The evidence was conclusive as to the pos- writing as such witnesses, and intended so to session of defendant at the time of the com- do at the time, and that the said deceased mencement of the suit, to wit, June 19, 1890, was then of sound and disposing mind, was so that he was not prejudiced by the refusal and is all within the statute of frauds and of an instruction submitting that question to purjuries, for the reason that it is not stated, the jury.
in whole or in part, upon or in said writing. There being no question of innocent pur- (3) That said writing was not understood by chaser involved in this case, and as from the deceased, that its provisions or terms what has been said whatever title George B. were not of her framing or choosing, and that Clark acquired to the land in question by rea- it was never explained or understood by her, son of his deed from Lawson inured to the and that she never so published or declared Little River Valley & Arkansas Railway it to
granteetitle (4) That the said instrument of writing, purplaintiff's succeeded, it becomes unnecessary porting to be the will of the deceased, is in to pass upon the action of the court in exclud- the handwriting of the executor therein aping the record of the deed from Clark to the pointed, who is alleged to be the principal defendant, as he acquired no title by that or
devisee under its terms; that said writing was any subsequent deed which was read or of- composed and framed by him, and the signafered to be read in evidence by him. The ture of said deceased procured thereto when judgment was for the right party, and should she did not understand it, by reason of his be affirmed. It is so ordered.
undue influence over her. The petition then
concludes with the usual prayer, asking to GANTT, P. J., and SHERWOOD, J., con
have the writing declared to be not the last cur.
will of the deceased, Eve Catharine Berberet. The answer of the defendants, after admitting the formal allegations of the petition as
to the relation of the parties to the testatrix, BERBERET v. BERBERET et al.
denies that the proof necessary to establish (Supreme Court of Missouri, Division No. 2.
said will is or was within the statute of Dec. 3, 1895.)
frauds and perjuries, as alleged in the petiWILL-ATTESTATION-EXECUTION-UNDUE INFLU.
tion; denies that the instrument in question ENCE--BURDEN OF PROOF.
was dictated and framed by the executor 1. Under Rev. St. 1889, § 8870, providing therein named; denies that the deceased did that every will shall be attested by two or more not understand the provisions of said instruwitnesses, subscribing their names to the will in the presence of the testator, the signatures
ment; denies that the said executor therein of the witnesses, without the attestation clause,
named dictated, advised, or counseled the is sufficient.
making of said will; but avers that the ex2. A will dictated by a widow, of requisite
ecutor therein named wrote said will at the age and sound mind, and signed by her in the presence of two witnesses, who subscribed their
request of the deceased, who dictated every names in her presence, was properly executed. clause and provision thereof, that deceased
3. Though a son is made executor of a will, was at the time of sound and disposing mind and he is shown to have had influence over the testatrix, the burden of proving that the will
and that she clearly understood the nature of was fairly executed is not on him, in an ac
the business in which she was engaged, and tion against him to set aside the will, in the ab- that the instrument of writing in question is sence of evidence that he used his influence for the last will and testament of Eve Catharine his own advantage.
Berberet, deceased, and that she understood Appeal from circuit court, Knox county; | the instrument in all its parts and provisions. Benjamin E. Turner, Judge.
A trial was had on the issues thus joined at the June term of the circuit court, which re- grave, of the value of not less than seventysulted in a verdict for the contestant. De- five dollars and not more than one hundred fendants then filed motions for new trial and and twenty-five dollars. The said one hunin arrest, which being overruled, they ap- dred and twenty-five dollars for a tombstone pealed.
shall include a small tombstone to be erect
ed over my sister Susan Fox's grave, now Lafe Dawson and John W. Ennis, for ap
lying in the Catholic cemetery in Edina, pellants. 0. D. Jones, for respondent.
Knox county, Missouri. The cost of said
Susan Fox's tombstone is not to exceed over BURGESS, J. (after stating the facts). The twenty-five dollars. will bears date January 19, 1893, and Mrs. "Second. I give and bequeath the sum of Berberet died the 8th day of February, 1894. fifty dollars to the person officiating as pasShe was at the time of her decease about 72 tor of the St. Joseph Catholic Church, of years of age, and was the mother and grand- Edina, Knox county, Missouri, to be used mother of the defendants, her children and and applied to the benefit of said church,grandchildren, 11 in all. The property dis- the money to be paid to the pastor of St. posed of by the will was of the value of about Joseph Church as soon as my executors may $7,000. Her husband died January 8, 1877, conveniently receive the same. leaving an estate worth $20,000, and she and "Third. I desire that my said executors her son Enos were executors of his will, Enos shall have masses read for the said Eve having the principal charge and management Catharine Berberet to the amount of sevenof the business. The estate was still unset- ty-five dollars,--thirty-five dollars for higb tled at the time of her death. Enos and masses and forty dollars for low masses; Joannah, her daughter, testified that their the high masses to be said, one each year, mother requested him to write the will, and on the day of each year of my death, and that he came to her house in Edina, where the low masses to be said one at the end of she had been living and keeping house with every four months. My executors shall noJoannah, to write it. Enos testified that it tify said parish priest of St. Joseph Church was written five or six weeks before it was when to be read, and shall pay for same taken by her to Joseph Hirner, Atlay J. when each mass is read, in case of my death. Steffen, and Thomas Burk to get them to If there can be a final settlement made besign it as witnesses to its execution. He and fore the amount of masses read, then, in the Joannah also
also testified that the will was event, the money for said masses shall be dictated by their mother, and explained by paid over to my executors, to be used for them to her. It was also shown by Joan- said above masses. nah that, three weeks before the will was "Fourth. I desire that my executors shall written, her mother insisted that she should
pay to my daughter Joannah G. C. Berberet write her will, that she declined to do so, the amount of two dollars per week for her and that she then asked Enos two or three services and attention given at my last sicktimes to write it before he consented. Mrs. ness, to be paid to her as conveniently as my Berberet could not read written English, but executor may receive the same. could printed. She could read written Eng- "Fifth. I give and bequeath to each of my lish, and spoke it fluently. The will was following named children the sum of sixty written by Enos, and admitted to be in his dollars each: To Nicholas J. Berberet, E. handwriting. It was signed by Mrs. Ber- B. Berberet, Joannah G. Berberet, Emma beret in German, and Hirner and Steffen McBride, wife of John McBride, Florence signed it, in her presence and at her request, T. Miller, wife of John Miller,--said amount as witnesses thereto. On behalf of contest- to be paid as soon after my death as my execant, it was shown that Mrs. Berberet and utors may conveniently receive the same, Enos, as executors of the estate of Enos Ber- as the above amounts has been made to me beret, deceased, were entitled to commissions as presents heretofore from each. as such executors amounting to about $1,600, “Sixth. I give and bequeath to my daughwhich she had given to her said son by her ter Joannah G. C. Berberet all my wearing will. Evidence was also introduced tending apparel, all my household and kitchen furnito show that Enos had influence over his ture, beds and bedding, all provisions and mother in matters of business.
wood that I may depart this life possessed; The writing in contest is as follows:
and it is my desire that my said daughter, “In the name of the Lord my God, Amen. Joannah G. C. Berberet, shall take immedi. Know all men by these presents, that I, ate possession of all of said property named Eve Catharine Berberet, of the city of Edina, in this clause after my death, and the same in the county of Knox, state of Missouri, be- shall not be included in the inventory of my ing of sound and disposing mind, do make estate. and publish this my last will and testament, "Seventh. I give and bequeath to my son hereby revoking all other wills.
John W. Berberet the sum of fifty dollars, to "First. I desire that my funeral expenses be paid to him by my executor when a final and the services of a requiem mass and all settlement can be made of my estate, both debts that I may be owing be first paid, real and personal, If the whereabouts of and a neat tombstone be placed over my my son John W. Berberet cannot be found