Mourning v. Missouri Coal Min. Co.

• Decision Date: 21 December 1889
• Citation: 99 Mo. 320,12 S.W. 884
• Parties: MOURNING v. MISSOURI COAL MIN. CO.
• Court: Missouri Supreme Court

12 S.W. 884

99 Mo. 320

MOURNING v. MISSOURI COAL MIN. CO.

Supreme Court of Missouri.

December 21, 1889.

WILLS — ADMINISTRATORS — SALE TO PAY DEBTS.

The will of testator provided that all his property should go to his four daughters as long as they lived or remained unmarried, to be held jointly as an undivided estate. If any married, the remaining unmarried daughters might give them such portion of the estate as they saw fit, not exceeding one-seventh of the whole, which should be charged to their share in the final division, which should take place on the death or marriage of them all. Upon the death or marriage of them all, the estate should be divided among all of testator's children. Held that, as the surviving daughter took her share by inheritance, it was liable to sale at her death, for her debts.

Appeal from circuit court, Lincoln county; E. M. HUGHES, Judge.

Plaintiff brought ejectment for 80 acres of land in Lincoln county. After a general denial, the answer sets up, as an equitable defense, that the debts allowed against the estate of Elizabeth Mourning were an equitable charge against the land in litigation. The case was submitted to the court upon the following agreed statement of facts: "The following facts are agreed upon between the plaintiff and defendant: That the common source of title to the lands in dispute is Thomas Mourning, who died in Lincoln county, Mo., in the year of 1837, owning the land in controversy. That said Thomas Mourning, Sr., left surviving him seven children, namely: Nancy Mourning, who died without issue, in the year of 1842; Thomas Mourning, Jr., who died without issue, in the year 1847; John Mourning, who died in the year of 1866, leaving four children; Louisa Mourning, who died without issue in the year of 1878; Susan Mourning, who died without issue, in the year 1881 or 1882; Elizabeth Mourning, who died without issue, in the year 1884; and William R. Mourning, the plaintiff in this cause. That said Thomas Mourning, Sr., left a will, which was duly probated in Lincoln county, Mo., a copy of which is hereto attached, and made a part of this agreed statement. That the value of the lands sued for does not exceed $600, and that the rents and profits are $24 per year. That the plaintiff is the surviving child of said Thomas Mourning, Sr., and claims title as such, and that the defendant claims title through a sale of said lands made by the administrator of the estate of Elizabeth Mourning for the payment of debts to the amount of $272.10, allowed against her estate. The said Elizabeth Mourning was the surviving one of the four daughters of the said Thomas Mourning, Sr., mentioned in his last will,...