Allison v. Chaney

• Decision Date: 31 October 1876
• Citation: 63 Mo. 279
• Parties: JOHN ALLISON, Executor, etc., Respondent, v. L. CHANEY, et al., Appellants.
• Court: Missouri Supreme Court

63 Mo. 279

JOHN ALLISON, Executor, etc., Respondent,

v.L. CHANEY, et al., Appellants.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Cooper County Circuit Court.

Draffen & Williams, with A. W. Anthony, for Appellants.

Hayden & Tompkins, for Respondent.

NORTON, Judge, delivered the opinion of the court.

Respondent, as the executor of the last will of Greenberry Allison, deceased, presented his final settlement to the probate court of Cooper county, which was approved by the court, and an order made distributing the estate to the devisees of said Greenberry Allison. From this judgment and order of distribution, L. Chaney and other devisees appealed to the circuit court of Cooper county. Upon a trial de novo in the circuit court, the judgment and order of distribution, made by the probate court, were approved and affirmed. From this judgment appellants have appealed to this court.

The record shows that Greenberry Allison died possessed of real estate valued by himself at $3,880, and personal estate amounting to $479.20; that at the time of his death there were living John Allison, Lucinda Chaney, two of his children, and Susan Allison, widow of decedent's son Loret, and Joseph W. Allison, Henderson A. Allison, and Mary E. DeWitt, grandchildren; that decedent left a will which was duly admitted to probate containing the following provisions:

“1st. I give and bequeath to my son, John Allison, all of my real estate, being one hundred and ninety-four acres of land, situate in the county of Cooper, in the State of Missouri, valued at twenty dollars per acre, or three thousand eight hundred and eighty dollars, and he, the said John Allison, paying to my other children and grandchildren the bequest hereinafter made to them. 2d. I give and bequeath to my daughter, Lucinda Chaney the one-fourth part of my estate; also, four hundred dollars to equalize what I have heretofore given my son, John Allison.

3d. I give and bequeath to Susan Allison, widow of my son, Loret Allison, deceased, the one-fourth part of my estate; also, four hundred dollars to equalize what I have heretofore given my son, John Allison, except hereinafter provided, during or as long as she remains the widow of said Loret Allison; and in case she marries or dies the bequest is to be distributed to their children--that is, the children of said Loret.

4th. I give and bequeath to Joseph W. and Henderson A. Allison, my grand-children, one-fourth part of my estate; also, four hundred dollars additional to equalize what I have heretofore given my son, John Allison; and I further bequeath to my grand-daughter, Mary E. DeWitt, the sister of said Joseph W. and Henderson A. Allison, twenty dollars, to be deducted out of the bequest to the aforesaid grand-sons.

5th. I will that my son, John Allison, can, at his option, keep the real estate at the price valued, or sell the same and pay and distribute the proceeds as heretofore provided.

6th. I will and direct that the personal estate, goods and moneys, if any, that I may be seized at the time of my death, after the payment of my debts and funeral expenses, shall be divided between my children and grand-children in equal portions, in accordance with the foregoing provisions of this, my will.”

This will was construed by the court below so as to invest the real estate of the testator in his son, John Allison, upon the payment by him of four hundred dollars to the legatees as provided in the clauses 2, 3 and 4 of said will; and it was also so construed as to require the grand-children to take per stirpes and not per capita of the personal estate under clause 6 of the will.

It is insisted by appellants that the court erred in thus construing the will, and that according to its terms and the intent of the testator, the legatees named in clauses 2, 3 and 4 of said will were entitled to receive one-fourth part of the land devised to John, in clause...