McQueen v. Lilly

• Citation: 131 Mo. 9,31 S.W. 1043
• Parties: McQUEEN et al. v. LILLY et al.
• Decision Date: 09 July 1895
• Court: United States State Supreme Court of Missouri

31 S.W. 1043

131 Mo. 9

McQUEEN et al. v. LILLY et al.

Supreme Court of Missouri, Division No. 1.

July 9, 1895.

CONSTRUCTION OF WILL — RIGHTS OF DEVISEES — EVIDENCE — OBJECTIONS WAIVED — PARTITION — LEGACIES CHARGED ON LAND.

1. A testator bequeathed to his daughter, the plaintiff, a certain legacy which was not declared to be in lieu of her entire interest. To a son he devised land to be taken as his entire interest in the estate. To another son he bequeathed certain money in part of his interest. He then directed that his other children, and his grandchildren per stirpes, should take an equal share in his estate after the other bequests were paid. Held, that plaintiff was also entitled to her proportionate share in the property undisposed of.

2. The fact that unfriendly relations existed between testator and his daughter is not admissible on a construction of the will, to show that the testator disinherited his daughter, where from the will it appears that she was to take her proportionate share in the estate.

3. Appellants cannot complain of the admission of evidence which they introduced, especially where it did not affect the result.

4. Rev. St. 1889, § 7142, providing that no partition or sale of lands devised by will shall be made contrary to the intention of the testator, does not apply where there was no restriction in the will on the right of the devisees to alienate or divide the land.

5. Personal estate is the primary fund for the payment of legacies, unless it appears from the will that the testator intended otherwise.

6. Where specific legacies are to be paid before the residuary real estate is apportioned, they may be charged on the land, where the personal estate is insufficient to pay them.

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

Action for partition of land by Margaret McQueen and another against Joseph Lilly and others. Plaintiff had judgment, and defendants appeal. Affirmed.

Chas. Martin, for appellants. Norton & Avery, for respondents.

MACFARLANE, J.

This is an action for the partition of the real estate of William Lilly, deceased, who died testate in Lincoln county, in December, 1888. The matters in dispute arise over the construction of the will of the deceased, which is as follows: "Know all men by these presents that I, William Lilly, of the county of Lincoln and state of Missouri, of sound mind and memory, being desirous of disposing of the property that I may be possessed at the time of my death according to my will and pleasure, do make, publish, this my last will and testament: First. I desire after my death that my body be buried by my son George W. Lilly, in the same inclosure. Second. I will and bequeath to my wife, Elizabeth Lilly, all and every part of my lands, personal property of every kind and description, that I may be owning at the time of my death, during the existence of her life or while she remain my widow. I will and bequeath to my daughter Lucy I. Holley's children the interest that she would have in my estate if living. I will and give my daughter Margaret McQueen five hundred dollars, to be paid her after my wife's death or my death. I will and bequeath to my son Thomas Lilly one hundred acres of land, being the same on which I now reside. This 100 acres of land, with its improvements, I intend as his entire interest in all of my estate. I will and bequeath to my son James Lilly's three children the interest in my estate that my son James would be entitled to if he was living. I will and bequeath to my son Joseph Lilly one thousand dollars, to be paid to him while I live; if not while I am living, to be paid to him by my wife in part of his interest in my estate. I will and bequeath to my son Alfred Lilly an equal interest in my estate after all the above bequests are fully paid off. I will and bequeath to my daughter Ellen Rayburn an equal interest in all my estate after all the above bequests are fully paid to the respective parties as herein directed. I direct my executor hereinafter named not to sell my tract of land lying on Big Bills creek in Lincoln county for less money than four thousand five hundred dollars, short of six years from the time of my death. I direct my executor to attend to the renting and the keeping of said farm in good repair; if he should rent said farm, the rents to become a part of my said estate. I do hereby appoint my son Thomas Lilly my executor, for all the purposes of executing and carrying out the provisions of this will." The widow of testator died in 1893, before the commencement of this suit. All the children of the testator living, and the children of those of them who were dead, were mentioned in the will, and are parties to this suit. It was stated in the petition, and found by the court, that there was in the hands of the executor sufficient personal estate to pay "all debts and obligations" of deceased. On the trial, parol evidence was introduced by defendants which tended to show that for some years prior to the death of testator, and before making his will, he and his daughter Mrs. McQueen had not been on good terms. The court refused to admit evidence offered by defendants for the purpose of showing the value of the entire estate of deceased. Testator owned, at the time of making the will, and at his death, about 150 acres of land not mentioned in the will. Plaintiff claimed one undivided one-sixth interest in all the land not devised to Thomas Lilly, in addition to the legacy given her by the will. The court so found her interest, and decreed partition and sale of the land. Defendants appealed.

1. Counsel for defendants insist that Mrs....