Ball v. Ball

• Citation: 65 S.W. 552,165 Mo. 312
• Parties: ISSA BALL et al., Appellants, v. ORINDA I. BALL et al
• Decision Date: 26 November 1901
• Court: United States State Supreme Court of Missouri

65 S.W. 552

165 Mo. 312

ISSA BALL et al., Appellants, v. ORINDA I. BALL et al

Supreme Court of Missouri, Second Division

November 26, 1901

Appeal from Morgan Circuit Court. -- Hon. Dorsey W. Shackleford Judge.

Reversed and remanded.

Ross & Bohling for appellants.

(1) The will of Addison T. Ball gave his widow Orinda I. Ball "such portion as she would be entitled to under the statute of descent and distribution now (then) in force in this State." She took under the will. She pleads the will in her answer, and claims to hold under and by virtue of its provisions. Davidson v. Davis, 86 Mo. 440. (2) The widow, having taken under the will, can not take also under the homestead law. (a) The homestead law in force in 1874, not exempting the rights of the widow from the operation of the will of her husband, she will be excluded from homestead by accepting the provisions of the will made for her in lieu thereof. She accepted the provisions made for her by the will. She says so in her answer. A party is bound by the statements made in his pleadings. Knoop v Kelsay, 102 Mo. 291. Schorr v. Etling, 124 Mo. 47; Burgess v. Bowles, 99 Mo. 550; Davidson v. Davis, supra; Estate of Meech, 37 Vt. 419. (b) "It is a maxim of a court of equity not to permit the same person to hold under and against a will." Pemberton v. Pemberton, 29 Mo. 413; Schorr v. Etling, supra; Van Syckel v. Beam, 110 Mo. 592. (3) Dower was never admeasured and set off to the widow. She was and is entitled to be endowed of one-third in value of all lands of which her husband died seized, including the mansion house. The mansion house is on the 160 acres in question. Said 160 acre-tract is substantially one-third in quantity of all of said lands, and much more than one-third in value. The evidence is that said tract is worth as much as all the remainder of the lands of decedent. R. S. 1899, sec. 2933. (4) She had the right to transfer and assign her unassigned dower interest, and her grantee succeeds to the right to sue for and have the same assigned to him; but her assignee, William L. Ball, took subject to all the liabilities that attach to such estates in the hands of the dowress. R. S. 1899, sec. 2934. Where the widow elects to take under the will, those claiming under her are bound by her election. Van Syckel v. Beam, 110 Mo. 589. William L. and Emmett Ball do not stand in the position of innocent purchasers. "When one can not make out his title except through a deed or other instrument which leads him to the knowledge of another fact, he will be deemed to have knowledge of that fact." Loring v. Groomer, 110 Mo. 632. (5) The evidence being that the 160 acres held and conveyed by the widow was equal in value to all the balance of the land of which the testator died seized, her dower can not include all of said 160 acre tract. Appellants in the first count of their petition pray the court to have the dower of the widow admeasured. The court erred in refusing so to do.

Wm. Forman and D. E. Wray for respondents.

(1) There is no inconsistency in the widow, Orinda I. Ball, taking the devise under the will and the homestead under the law, and she was not required to elect. Schorr v. Etling, 124 Mo. 42. (2) "The homestead as dower is vested in the widow by operation of law and without the act or will of the husband, and in spite of them. It follows that, unless the intention to exclude these rights is manifest from the provisions of the will, they will not be excluded. She can claim both the benefits given her by law and the will. The intent of the testator to dispose of that which is not his should appear upon the will." Schorr v. Etling, supra. The widow was not required under the terms of the will to elect. It was evidently the intention of the testator to give to her all she was entitled to under the law then in force. (3) The failure of the widow to renounce the will did not deprive her of her homestead. Schorr v. Etling, supra; Bogart v. Bogart, 138 Mo. 419. (4) The heirs are bound by the parol partition of the lands. Appellants acknowledged this when they made warranty deeds to William L. Ball, Dollie Ball and Emmett Ball, to the respective tracts set apart to them, and when they accepted deeds from respondents to the lands conveyed to appellants in pursuance of the parol partition.

OPINION

BURGESS, J.

Addison T. Ball died testate in February, 1874, leaving his widow, Orinda I. Ball, and his children, his only heirs at law, Issa and Minnie Ball, plaintiffs, and Dollie, Emmett and William L. Ball, defendants surviving him. His will was as follows:

"First. My will is that my wife have the entire control and management of my estate both real and personal for the uses and purposes hereinafter mentioned so long as she remain my widow.

"1st. For the payment of all my just debts and 2d for the necessary and proper support of herself and necessary and proper support and education of my children during their minority, and for this purpose I desire that my wife and children keep and use my property in common without any division until the children shall respectively arrive at age at which time I desire my wife with the advice and assistance of my brothers John and Jamison Ball to set off to each child a reasonable portion of my estate and so on as each child becomes of age until the last one attains its majority, at which time I desire all my estate divided so that my children shall be made equal and my wife have such portion as she would now be entitled to under the statute of descent and distribution now in force in this State.

"Second. In case of the marriage of my wife my will is that my brothers John and Jamison Ball or in case of the death of either the survivor then take charge of my estate and cause it to be distributed of among my wife and children according to the statute of descent and distribution now in force in this State.

"Third. I hereby appoint my wife and brother above named executors of this will.

"In witness whereof, I have hereunto set my hand this twelfth day of February, 1874.

"A. T. Ball."

The purposes of this suit is to have the will construed; to admeasure and set off dower to his widow, Orinda I. Ball, defendant herein; to determine, adjudge and decree to plaintiffs their estate in the lands in controversy; and to annul the deed of Orinda I. Ball to William L. Ball, and the deed of William L. Ball to Emmett R. Ball, in so far as said deeds affect or cloud the title of plaintiffs in and to said lands.

The widow took and held under the will and proceeded to carry out its terms and provisions. Addison T. Ball died seized of 485.95 acres of land in different disconnected tracts in Morgan county, Missouri.

On the eighteenth day of March, 1893, all the children having reached their legal majority except William L., the widow, with the assistance of John Ball (Jamison Ball having died), proceeded to set off to said children portions of said lands. This was done by the devisees exchanging or making deeds to each other. No conveyance was made of the 160 acres on which the mansion house was located; nor was any action taken in any court or in any manner whatever setting apart said lands to the widow.

In 1896, and subsequent thereto, the defendant, Orinda I. Ball, asserted claim of absolute title to said 160 acres of land, the same being described as follows, to-wit. The southeast quarter of the northeast quarter; 60 acres the south part of the west half of the northeast quarter; and 60 acres the south part of the east half of the northwest quarter all in section 24, township 43, of range 18, in Morgan county, Missouri.

On the fifth day of February, 1897, she conveyed said lands by warranty deed to her son and co-defendant, William L. Ball; and thereafter on the second day of February, 1898, William conveyed by warranty deed to his co-defendant, Emmett R. Ball, 40 acres of said land described as follows: The south half of the northeast quarter of the northwest quarter and the south half of the northwest quarter of the northeast quarter of section 24, 43, 18. Said defendants then and thereafter openly asserted title absolutely to said lands and denied the right of these plaintiffs to have or to hold any right, title, interest or estate, either present or in expectancy, in and to said 160 acres of land.

By the separate answer of Orinda I. Ball she pleads the will, and claims under it, and also claims the fee simple title to the one hundred and sixty acres, under the homestead law then in force (vol. 1, sec. 5, p. 628, Wagner's Statutes, 1872). The answer of the other defendants makes the same allegations and claim of homestead.

Evidence offered by plaintiffs tended to show that the land was worth from $ 15 to $ 22.50 per acre at the time of the trial, and that at the time of the death of the testator the one hundred and sixty acres exceeded in value fifteen hundred dollars, and was equal in value to all of the remainder of his land.

With respect to the division of the land, the evidence was as follows:

Issa Ball, plaintiff, testified as follows:

"Q. When did you first learn that deeds were to be exchanged as to the other parts of this land? A. About an hour before the deeds were made out she (my mother) came up to tell us to come to town and sign those deeds.

"Q. Did you and your sister come to town? A. Yes, sir; we went to McNair's office.

"Q. What happened there. A. We signed the deeds there. The first I knew about the making of the deeds was about an hour before they were made. She (my mother) said for us to come to town and sign those deeds. Had heard nothing before about it. We were living about a mile and a quarter from my mother's at the time, at Mr. Taylor Blank's. Had been there about two weeks. Had not been at...