Boyer v. Allen

• Citation: 76 Mo. 498
• Parties: BOYER v. ALLEN et al., Plaintiffs in Error.
• Decision Date: 31 October 1882
• Court: Missouri Supreme Court

76 Mo. 498

BOYER

v.ALLEN et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1882.

Error to Scotland Circuit Court.--HON. JOHN C. ANDERSON, Judge.

REVERSED.

William T. Kays for plaintiff in error.

NORTON, J.

The only question presented by the record in this case for our determination, is whether the title to the southeast quarter of the southeast quarter of section 21, township 65, range 11, in Scotland county, is vested in plaintiffs or in defendant Thompson Walker. It is conceded that this land was owned by Elzy Boyer, who died intestate in 1867, and plaintiffs claim that under his will they are the owners of said land, and ask that it be sold for partition and division among them according to the terms of the will. Defendant Walker claims that the land belongs to him by virtue of a deed of general warranty executed in 1869 by Rebecca Boyer, widow of said Elzy Boyer, deceased, conveying said land to one William Walker, who subsequently conveyed it to defendant, Thompson Walker. It is affirmed by defendant, Walker, that under the will of said Boyer, deceased, first, that Rebecca Boyer was invested with the fee in the land conveyed by her to William Walker, and second, that if she did not take the fee under the will, she was invested by it with the power to sell the particular tract of land in controversy and pass the fee, and that the deed executed in 1869 conveying said land in fee to said Thompson Walker, although it contained no reference to the power, was effectual to pass the absolute title. The extent of the estate acquired by Mrs. Boyer under the will, and the extent of the power conferred upon her by it, is, so far as it concerns the land in controversy, to be found in the following provision of said will, viz: “I will and bequeath to my wife, Rebecca Boyer, all my real estate that I am in possession of at this time, to do with as she shall wish for her own use while she continues my widow. I will that my wife Rebecca shall sell one lot of ground containing thirty-nine acres and one-half lying in section 21, township 65, range 11, and apply the proceeds to her own use.” It is admitted by the pleadings that the tract of land in controversy conveyed by Rebecca Boyer to William Walker, is the same land referred to in the above clause of the will, and two questions arise under said clause, first, did it give to Mrs. Boyer a widowhood estate, only, or a fee simple estate; second, did it confer upon her the power to sell the absolute...