Small v. Field

• Decision Date: 01 December 1890
• Parties: SMALL et al. v. FIELD et al.
• Court: Missouri Supreme Court

14 S.W. 815

102 Mo. 104

SMALL et al. v. FIELD et al.

Supreme Court of Missouri.

December 1, 1890.

CONSTRUCTION OF WILLS — TRUSTS — WIFE'S SEPARATE ESTATE — ACKNOWLEDGMENT OF CONVEYANCE.

1. A mother under great pecuniary and moral obligations to a daughter bequeathed to her by holographic will "all the rest of my real and personal estate for the sole use of herself and children." The mother's property was worth $18,000, all of which passed under the residuary clause, subject to an annuity to a son of $350 a year, and a legacy of $300 "to be paid out of the amount willed to my daughter." The latter was 34 years old, and had 4 children living. Her husband was an army officer dependent on his salary, and had accumulated no property. Held, that the daughter took the fee in the land, and that the words "for the sole use of herself and children" did not create a trust, nor make them tenants in common with her, nor vest in them a remainder after her death.

2. A devise to a married woman "for the sole use of herself and children" creates in her a separate estate, and the equitable title thereto will pass by her unacknowledged deed.

3. In Missouri a conveyance acknowledged before a deputy clerk of a territorial court is admissible in evidence, though Rev. St. U. S. § 1871, provides that each judge of the territory shall designate and appoint one person as clerk of his district, and no provision is made for the appointment of a deputy, section 748, however, expressly speaking of "deputy clerks" of territorial courts.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

This proceeding for the partition of lots 490, 491, and 492, in block 37, McGee's addition to the city of Kansas, necessitates the construction of the will of Julia A. Rich; and, upon this construction of the will, the point must be determined whether Mrs. Kate Greene, the daughter of the testatrix, took an estate in fee. The will is as follows: "In the name of God, amen. I, Julia A. Rich, of the county of Leavenworth, in the state of Kansas, being of sound mind, do make and declare this to be my last will and testament. First. All my just debts and funeral expenses to be fully paid. Second. I will and bequeath to my beloved daughter, Kate Greene, wife of Oliver D. Greene, all my personal effects, in cluding silver, bedding, jewelry, and clothing, at her death to be equally divided between her two daughters, Mary and Kate Greene, and my adopted daughter, Medora Annie Rich. Third. I will and bequeath to my son, James W. Rich, my house now occupied by him and his family, and the one hundred and thirty acres of land, more or less, upon which it stands, and which I hold a mortgage upon, during his natural life. At his death, property to be sold, and the proceeds invested for the benefit of my adopted daughter, Medora Annie Rich, to clothe and educate her; also the sum of three hundred and fifty dollars a year, to be paid him in money, semi-annually. At his death it goes to his daughter, Medora Annie Rich. Fourth. In consideration of the deep affection I have for my beloved daughter, Kate Greene, and her tender love and sympathy for me in all my trials and troubles in this life, I will and bequeath her all the rest of my money, notes, real and personal estate, for the sole use of herself and children. Fifth. Should my brother, Thomas H. Wilson, survive me, I will and bequeath him three hundred dollars, in consideration of his kindness and attention to me during the last eight months of my failing health. This money to be paid him from the amount willed my daughter, Kate Greene, and which I beg she will see that he gets. Sixth. In case of the death of Medora Annie Rich, I will and bequeath her portion to my daughter, Kate Greene, deducting three hundred dollars to be paid Julia Eliza Rich, youngest daughter of James W. Rich. Executed at Salt Creek, Leavenworth county, state of Kansas, June 30, 1874, in the presence of witnesses whose names are hereunto affixed. JULIA A. RICH. Witnesses: RICHARD W. MOSES. RICHARD MOSES." On the hearing of the cause, the following facts were shown in evidence: Julia A. Rich was the widow of Hiram Rich, and lived, at the time of her death, (October 11, 1875,) in Leavenworth county, Kan., and at that time, and the time she made her will, to-wit, June 30, 1874, she had two children living, James W. Rich and Mrs. Kate Greene, the wife of Oliver D. Greene, an officer in the United States army. Hiram Rich died intestate in the year 1862, at Leavenworth, leaving his widow, Julia A. Rich, his three children. Hiram Rich, Jr., James W. Rich, and Mrs. Kate Greene, and a grandson, Bradley Rich, son of Lucius Rich, deceased, as his only heirs at law, and under the statutes of Kansas one-half of the property, real and personal, of said Hiram Rich, deceased, descended to his widow, and the other half to his children and said grandson, in equal parts. In 1863, Julia A. Rich was appointed administratrix of the estate of Hiram Rich, deceased. The property left by said Hiram Rich consisted of a farm of about 276 acres, located in Salt Creek valley, in Leavenworth county, and personal property of the appraised value of $56,083.32. Julia A. Rich qualified as such administratrix, and gave bond in the sum of $114,000. On July 22, 1864, she made final settlement in the probate court of Leavenworth county, and showed a balance due the estate in her hands of $23.892.29, after the payment of all debts, and besides reported a large amount of uncollected assets, to-wit, about $20,000, which the year before had been appraised at par, all of which the court ordered her to distribute among the heirs of Hiram Rich. Hiram Rich, Jr., and Bradley Rich both died without issue and intestate, before the decease of said Julia A. Rich, and before she made her will. Mrs. Kate Greene never received from her mother any part of the estate of her father, real or personal, to which she was entitled, and never asked her mother to make a settlement for her interest, or any part thereof, but allowed her entire portion to remain in her mother's possession, and under her control, for her support, as long as she lived; but James W. Rich exacted and was paid by his mother all that was coming to him from his father's estate, and besides, at the time she made her will, had become indebted to her in the sum of about (principal and interest) $4,000, for which she had a mortgage upon his house and farm. Mrs. Greene, testifying in this case, said: "My mother had both family afflictions and troubles, and financial losses in administering her husband's estate. Those were the troubles to which she referred in clause four of her will." At the time of making her will, and at the time of her death, Mrs. Julia A. Rich owned the following property: The Salt Creek farm of 276 acres, which had formerly belonged to her husband, except about 40 acres, the interest which had descended to Mrs. Kate Greene, which had never been deeded to her, but which had been permitted by Mrs. Greene to remain in possession and control of, as before stated, which was worth at the time she made her will, according to the evidence of her administrator and the witnesses to her will, from $25 to $30 an acre, and for which she offered to take $35 per acre in the spring of 1874, making the value of her interest in the farm at that time about $7,000 or $8,000. These three lots in Kansas City, which, with the foundry then upon them, and machinery contained in it, were then worth from $2,500 to $3,000, were incumbered with state, county, and city taxes for the years 1868, 1869, 1871, 1872, 1873, and 1874, to the amount of $1,143, exclusive of interest and penalties, and with penalties and interest to probably about $2,000. She had for several years derived no income from this property in Kansas City, the foundry not being in operation, but in an abandoned condition. Thirty-three shares of stock in the Merchants' National Bank of Little Rock, Ark., worth at that time about $1,650. A promissory note against one Whitney for $4,000. Two notes against her son, James W. Rich, one for $2,000, and one for $850, which, with interest due for several years, amounted to about $4,000, secured by a mortgage on his house and farm. At the time of her death she was indebted in the sum of about $800. The foregoing was her total estate and its condition. It was worth, at the time she wrote her will in 1874, and at the time of her death in 1875, hardly $18,000. For several years before her death she had rented her Salt Creek farm for $300 or $400 per annum, and had no other income except from the interest paid by Whitney, and probably some dividends on her bank-stock. She made her home with her son and his family, but visited her daughter, Kate Greene, from time to time. In 1874, James W. Rich was 45 years of age, — and his wife about 28. He had three children, — Medora Annie, a child by his first wife, whom the testatrix refers to in her will as her adopted daughter, then aged about 10 years; Julia Eliza, aged about 4 years; and a son aged 2. James W. Rich had no property to speak of except his house and farm, which were mortgaged to his mother for about their full value. At that time Mrs. Kate Greene was 34 years of age, and her husband 41. She then had four children living, — Mary Kate, Nathaniel, and Henry, aged respectively 11, 10, 4, and 2. Two of her children had died previous to that time. Subsequent to her mother's death, two more children were born to Mrs. Kate Greene, Oliver D., born in May, 1876, and a daughter, Augusta C., born in 1879, but who died before this suit was instituted, but after her conveyance to respondents' grantor. From the time of his marriage in 1859 up to the time Mrs. Julia A. Rich made her will, Oliver D. Greene was an officer in the army, and had accumulated little, if any, property, and, although he owned a home of his own while stationed at St. Paul, he had probably lost it by...