Vantine v. Butler

• Citation: 157 S.W. 588
• Parties: VANTINE v. BUTLER et al.
• Decision Date: 31 May 1913
• Court: United States State Supreme Court of Missouri

157 S.W. 588

VANTINE v. BUTLER et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. JUDGMENT (§ 663) — RES JUDICATA.

Where the issue of heirship was determined in plaintiff's favor in a prior suit by her against defendants and others for the purpose of deciding that issue, the judgment rendered therein was conclusive on that issue when offered in a subsequent suit by plaintiff to partition a portion of the ancestor's realty, where the judgment was admitted without objection, though it had not been affirmed on appeal when offered in evidence.

2. PLEADING (§ 272) — PUIS DARREIN CONTINUANCE.

A party to a case may show by a plea of puis darrein continuance that a judgment in a subsequent action between the parties introduced herein, in evidence, was reversed on appeal after it was rendered.

3. DESCENT AND DISTRIBUTION (§ 89) — PRETERMITTED HEIR — PARTITION.

A pretermitted heir could have brought a partition suit and set up therein her rights as heir without having brought a prior suit to establish heirship and her title in her father's estate; she having the same right to a partition

decree as any other heir would have had in case of intestacy.

4. PARTITION (§ 27) — ACTIONS — DEFENSES.

The fact that some of the devisees under decedent's will brought an action against others to set aside the will after the institution of a partition suit by an heir would not constitute a defense to the partition suit; the heir's rights not depending on whether the will is established or annulled.

Appeal from Circuit Court, Boone County; Nic Thurmond, Judge.

Action by Lizzie Vantine against Mary Butler and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Plaintiff sues as the child and heir of John Butler, who died on the 28th of September, 1906, after having made a will devising his estate, consisting of land and personalty, wherein she was neither mentioned nor provided for, for a partition of a portion of his real estate between herself and widow and devisees mentioned in said will, alleging that she is entitled to an undivided one-sixth interest in the fee of said land, subject to a dower interest of the widow therein, to whom said land had been devised during her natural life or widowhood with remainder at her death or remarriage to her codefendant, Loutetia Phelan, also a daughter of said John Butler, deceased. The petition then specifically sets out the respective interests of the parties, and alleges that the personal estate of the deceased, John Butler, is amply sufficient to pay off all his debts, and that the land in question, being insusceptible of advantageous division, should be sold for partition. The two defendants are the devisees under the will, to whom the particular land sought to be partitioned was devised; and answered (1) by a general denial, (2) by way of affirmative defense and plea in abatement that plaintiff prior to the institution of the present suit had instituted another action in said court against all the heirs of John Butler, deceased, seeking to establish her rights as a child and heir of the deceased, to a distributive share of his entire estate, and wherein the present defendants and other heirs of the deceased were made defendants, and wherein they denied the heirship and interest of plaintiff, and on trial of which issue plaintiff prevailed. And for a third defense alleged that one of the descendants of John Butler, deceased, had brought an action against other devisees under his will to set aside the same, which action was still pending. The reply took issue. Plaintiffs adduced evidence of the decision in her favor in the former suit begun to establish her heirship by the circuit court of Boone county, and that an appeal was taken therefrom by some of the defendants but without bond, which appeal subsequently resulted in an affirmance of the judgment obtained by plaintiff in the lower court in a decision rendered February 29, 1912. Vantine v. Butler, 240 Mo. 521, 144 S. W. 807, 39 L. R. A. (N. S.) 1177. And also proved that she was not a party to the suit contesting the will. Upon the conclusion of the testimony, the court rendered a judgment ascertaining the interests of the parties and appointing three commissioners to set off dower to the widow, and directing the remainder of the land described to be sold and the proceeds divided in proportion to the interests of the parties entitled. From that decree, the defendants perfected their appeal to this court.

Whitecotton & Wight, of Moberly, and Harris & Finley, of Columbia, for appellants. Gillespy & Conley, of Columbia, for respondent.

BOND, J. (after stating the facts as above).

I. The first error assigned in the brief of appellants is that the decree below was not supported by competent...