Allred v. Biegel

• Decision Date: 04 April 1949
• Citation: 219 S.W.2d 665,240 Mo.App. 818
• Parties: Walter Allred, et al., Appellants, v. William Biegel and Ella Mae Knight Evans, Respondents
• Court: Kansas Court of Appeals

219 S.W.2d 665

240 Mo.App. 818

Walter Allred, et al., Appellants, v. William Biegel and Ella Mae Knight Evans, Respondents

Court of Appeals of Missouri, Kansas City

April 4, 1949

Delivered

Appeal from Circuit Court of Schuyler County; Hon. Walter A. Higbee Judge.

Affirmed.

John V Goodson for appellants.

Devised land to wife "for her use and benefit during her natural lifetime and at her death title to pass to my daughter Ella Mae Knight." Under devise life tenant had right to sell the boat as her right under the will whether same was real or personal property. The res was not damaged by its removal. There was no waste. 21 C. J., p. 948, Sec. 87. If boat was a part of the realty life tenant was entitled to use of it, or proceeds on sale, for her lifetime. 21 C. J., p 950, Sec. 88. The Haney land had reputation of belonging to John and Andy Haney, or, they reputedly had the management and control of it and their sale of boat to appellants was valid and binding as between appellants and defendant, Biegel. And when Nina Haney ratified and confirmed the sale as made by John and Andy, her sons, the sale was valid as against Biegel, and the remainderman, the daughter Ella Mae Knight (Evans). 2 C. J., p. 516, Sec. 138. Boat was personal property. Trial court erred in holding it to be real property. Severance of the tree from the soil converted it into personal property. Making a canoe of the tree after severance was just another act in reducing what was once real property into personal property. Burying personal property does not convert it into real property. State v. Doepke, 68 Mo. 208. Widow, under her marital rights as surviving spouse, became the absolute owner of the canoe under her $ 400.00 statutory allowance and had the right to sell it as her absolute property. Or, as administratrix c. t. a. she could sell it as property of estate and such sale would be binding on all parties at interest when approved by the Probate Court. Revised Statutes of Missouri, 1939, Section 107; Limbaugh's -- Missouri Practice with Forms -- Probate Court, Volume 2, Sections 720, 721, 722.

R. Wilson Barrow and James Glenn for respondents.

Respondent is the owner of the fee simple title to the land where the walnut canoe was found embedded in the soil, and is the owner, and entitled to the possession of the canoe. 34 American Jurisprudence pp. 634-5, Sec. 5; Foster v. Fidelity Safety Deposit Co., 174 S.W. 376, 264 Mo. 89; Goddard v. Winchell, 86 Ia. 71, 51 N.W. 1124, "The Aerolite case"; 6 B. R. C. 268 s 1 Ann. Cas. 5, 11 Ann. Cas. 707. The "prehistoric boat" dug up in making an excavation case. Ferguson v. Ray, 44 Ore. 557, 77 P. 600, "the gold bearing quartz" case; Burdick v. Chesebrough, 94 A.D. 532, 88 N.Y.S. 13. The "valuable earthenware" buried in land, case. The canoe was real property not personalty. Presumption that right of possession of Indian canoe or ancient boat found embedded in the soil is in the owner of the loqus in quo or fee owner, against everyone except the right owner. 170 American Law Reports, p. 708; State ex rel. Scott v. Buzard, 144 S.W. 2d 847; Ferguson v. Ray, supra; Goddard v. Winchell, supra; Foster v. Fidelity Safe Deposit Co., supra. Plaintiffs' Exhibit A (Tr. pp. 16a, 16b.) an affidavit claimed by appellants to be a bill of sale dated August 18, 1947, from John and Andy Haney to the canoe for $ 2.00 was properly excluded as evidence by the trial court. Plaintiff's Exhibit F. (Tr. pp. 34a, 34b.) an alleged contract or bill of sale dated August 20, 1947, from Nina Haney to the canoe for $ 5.00 was properly excluded as evidence by the trial court. Life tenant had no right or authority to attempt to sell the ancient canoe found embedded in the soil as it was a part of the realty and belonged to the owner of the fee who was entitled to the possession thereof. Even when severed from the realty the canoe remained the property of the remainderman in fee. The life tenant could not diminish the corpus of the real estate. The life tenant is liable for waste and is in a sense a trustee for remainderman for any part of the realty removed by her. 33 American Jurisprudence, pp. 699-702, Sec. 217; Bouvier's Law Dictionary, Rawles 3rd Edition, Vol. 3, p. 2437, Line 17; Miller v. Bowen Coal & Mining Co., 40 S.W. 2d 485; Tiedeman Real Property, 3rd Edition, Secs. 63 & 64; Burch v. Horn 156 S.W. 2d 929 (1); Davis v. Clark 40 Mo.App. 515. Appellants claim under widow's ownership of the canoe through her $ 400.00 statutory allowance is untenable. The walnut canoe or boat was not inventoried as personal property in the Estate of George Haney, deceased, (Tr. p. 17i) and was not personalty belonging to her husband at the time of his death. Nina Haney never at any time made application for a widow's $ 400.00 statutory allowance, which "she may choose" of "personal property only" of said estate, and she did not "give a receipt" for any such allowance. There was no Probate Court order with reference to such an allowance. Nina Haney, widow, took only a life estate in the real estate under the will of George Haney, deceased, which will she did not renounce nor did she elect to take a child's part in said estate. Mo. R. S. A. 1939, Section 107; Jewell v. Knettle, 39 Mo.App. 262; In re Wickard's Estate, App. 282 S.W. 173; Peugh v. McKinney, App. 211 S.W. 83; Limbaugh's Mo. Practice, Vol. 2, Section 720.

Sherry, C. Boyer, C., concurs.

OPINION

SHERRY

Plaintiffs sued Biegel, in replevin, for possession of an ancient Indian canoe found embedded in land owned by Mrs. Evans, intervenor. Trial to the court, without a jury, resulted in judgment for intervenor. Plaintiffs appeal.

Plaintiffs went swimming in the Chariton river, at a point where a new channel had been cut across a bend in the old river course. The new channel ran through land formerly owned by one Haney, who died many years ago. Haney devised the land to his wife, Nina, for her lifetime and then, in fee, to his daughter, Mrs. Evans.

After the new channel was excavated the banks eroded many feet on each side of the ditch. Due to unusual floods occurring in the spring of 1947, each of the banks was further eroded to the extent of from 15 to 25 feet, so that the river is now 200 feet wide at this point. While refreshing themselves in the waters plaintiffs discovered that what they thought was a log, protruding from the bank and partly inundated by the water, was a boat. They discussed the find and agreed that they would remove it and sell it to a museum, or exhibit it commercially. They showed it to Mr. Biegel, who, the following day, with his sons, excavated and removed it.

The Haney will had been probated but administration has never been closed. Probate records disclose that Mr. Haney owned no personal property. Plaintiffs paid Mrs. Haney, the life tenant, $ 5 for her interest in the canoe, and paid her two sons, who had been farming the land in which it was embedded, $ 2 for their interest. Plaintiffs claim the canoe, by right of discovery of lost or abandoned property, and on the theory that it is personal property which Mrs. Haney may claim under her rights as widow of the former owner.

The canoe is 27 1/2 feet long and 2 1/2 or 3 feet wide. It is made of a single walnut log, hollowed out, and with a place for a seat scooped out at the stern. It is in a good state of preservation. When found, about one-third of its length was embedded in the soil of the bank, from 15 to 25 feet below the surface of the land. It extended about 6 inches above the water for a distance of a few feet, and the remainder was submerged in the water. In order to remove it the soil around the embedded portion was excavated, and then it was pulled out with the aid of a tractor and a block and tackle.

How long the canoe had been in this spot, no one attempted to say. The entire surface of the land, under which it lay buried, prior to the eroding of the banks of the "man-made" river, had been planted to crops and cultivated. Whose hand fashioned this antiquity, and in what manner it came to rest at this spot, in the fertile valley of...