Bramell v. Adams

• Decision Date: 15 November 1898
• Parties: BRAMELL et al. v. ADAMS et al. SAME v. COLE et al. SAME v. COLLINS et al.
• Court: Missouri Supreme Court

47 S.W. 931

146 Mo. 70

BRAMELL et al. v. ADAMS et al.

SAME v. COLE et al.

SAME v. COLLINS et al.

Supreme Court of Missouri, Division No. 1.

November 15, 1898.

WILLS — CONSTRUCTION — POWER OF ALIENATION — REMAINDER-MEN — LAPSED DEVISES — ESTOPPEL — EXECUTORS AND ADMINISTRATORS — STATUTE OF NONCLAIM — EFFECT OF FINAL SETTLEMENT — APPEAL — REVIEW.

1. A will devising to testator's widow all his property and notes and evidences of indebtedness, to have full control of same as long as she lives, and, after her death, "what is left" to remainder-men, entitles the widow to a life estate, without power to alienate the corpus of the estate, and the remainder-men to whatever is left of the estate, whether diminished by losses in the management thereof or increased by profits.

2. There is no estoppel of the remainder-men to deny the power of the life tenant under a will to make absolute disposition of the estate, where they accepted gifts made by her out of the corpus of the estate, but did not at the time know what the will provided, and the tenant had individual property out of which the gifts might have been made on the advice of the party claiming an estoppel, who had taken gifts from the estate from the life tenant without consideration.

3. Administration Law (section 184), providing that "all demands not * * * exhibited and presented to the court for allowance in two years shall be forever barred," does not apply to an action by remainder-men to establish their rights as owners of a fund in the administrator's hands, which was derived from a conversion by decedent, who was the particular tenant, of a part of the estate into money.

4. A final judicial settlement of an executrix's account does not conclude remainder-men from seeking to charge her estate thereafter for a note for which she did not account, which was received by her as particular life tenant of the estate of which she was executrix, on the discharge out of the funds of the estate of a collateral charge on it, because the action seeks to enforce a trust not embraced in the matters passed on by the probate court.

5. Where three cases were tried together, and the same evidence received by consent in all, and a single decree entered, and the pleadings, taken together, make issues to which the decree is responsive, the cases will be treated, on appeal, as if an order of consolidation had been made.

6. Rev. St. 1879, § 3971, providing that, when any estate shall be devised to any child, grandchild, "or other relative" of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate as the devisee would have done in case he had survived, does not entitle a grandchild of testator's wife by a former marriage to take under a devise over to her mother, who died before the testator, whereby the devise lapsed.

7. Parties cannot complain of a decree which was unduly favorable to them.

Appeal from circuit court, Johnson county; W. W. Wood, Judge.

Actions severally by Wesley O. Bramell and others against Z. T. Adams, administrator, and others, A. W. Cole and others, and George W. Collins and others. There was a decree for plaintiffs, and defendants appeal. Affirmed.

These cases were tried together in the circuit court, and were submitted on the same evidence. The decree rendered is alike in each case, and was apparently intended to include the issues involved in all. The suits, for all practical purposes, were consolidated and treated as one. The rights of the parties grow out of and depend upon the will of Calvin Atkins, deceased, which was admitted to probate in Moniteau county, in the year 1884. The material parts thereof are as follows: "I will that all my just debts be paid, at as early a date as practicable, and the remainder that is left to go to my beloved wife, Margaret A. Atkins, during her natural lifetime, she to have the entire control of the same, it consisting of the following real estate: The west half of the northeast quarter of section No. (23) twenty-three, in township (44) forty-four, range (2) two west, containing eighty acres, more or less, it being the same we now reside upon, and all other lands that I may have any claim to and upon, and also all moneys, cash, notes, or bonds, and evidence of debt, of every description whatsoever, and effects of all kinds, to go to her, for her to have full control of the same, as long as she lives, and that, after her death, what is left to go to A. W. Cole and Louisa Bramell and her children, legal heirs of her body, share and share alike; that is to say, the said A. W. Cole and Louisa Bramell, wife of Washington Bramell, is to share equal to any of the children of the said Washington and Louisa Bramell and no more; and I further revoke all former wills of every description whatsoever, and publish this as my last will and testament; and my will is that my beloved wife, Margaret A. Atkins, shall act as my executor of my entire estate, both real and personal, of every description whatsoever." The will is dated August 21, 1866. Atkins died in 1884, and his widow, Margaret Atkins, qualified as his executrix. She made final settlement, after publication of the proper notice, on the 10th of May, 1886, showing in her hands $39,210.39. She also held what is called the "Price note," for $5,000, which she failed to inventory, and hence it was never charged to her in her administration accounts, and is not included in the above balance. Mr. Atkins deposited this note as collateral security for an indebtedness which he owed, and, when the inventory was made, it was still held by his creditor. Subsequently the debt was paid by the executrix, and the Price note delivered to her. She took credit for the payment in her settlement with the probate court, but did not charge herself with the note. The widow retained possession and control of the money and other property of the estate after her discharge as executrix, and managed and invested it as she deemed proper. Atkins, at the time of his death, held a note for something over $22,000, secured by a deed of trust upon some land in Henry county, called the "Rule Farm." Mrs. Atkins had the land sold under the deed of trust, and took the title in her own name. She also bought with the funds of the estate several other tracts of land, and had the same conveyed to her personally. In 1891, a short time before her death, she conveyed 80 acres of the Rule land to plaintiff Wesley O. Bramell; a like quantity to Edward G. Bramell; and a third 80 to Louisa and Washington Bramell for life, and after their death to the children of Louisa. She held the title to the remainder of the Rule land in her own name when she died. Mrs. Atkins also conveyed, or caused to be conveyed, to defendant Cole, several tracts of land in Johnson county, aggregating about 400 acres. He, in turn, gave 80 acres of that deeded to him to his son-in-law, defendant Collins. All of the real estate above mentioned was purchased with funds of the Atkins estate. The transfers to Cole and to the Bramells were without consideration, and merely intended as gifts. The Bramells, in a suit in the circuit court of Henry county, were decreed to hold the title to that part conveyed to them, in trust for the remaindermen provided for in the will of Calvin Atkins, deceased. Mrs. Atkins also made small presents from time to time of money or personal property to some of the plaintiffs, and likewise to defendant Cole. He was the principal beneficiary of these disbursements. She gave him what is spoken of by the witnesses as the "Bowen-Hinkle notes." He collected them, paid $1,200 out of the proceeds for one of the tracts of land conveyed to him, divided part of the remainder between his two daughters, and used himself what was left after this division. Mrs. Atkins died in 1892. Defendant Adams became her administrator, and took into his possession notes amounting to about $15,000. These were payable to her, but represented investments which she had made of the funds of the Atkins estate. She left two children surviving her, — plaintiff Louisa Bramell and defendant Dr. A. W. Cole. They are her only heirs, and were born of a marriage prior to that with Atkins. He had no children. Louisa Bramell and seven of her children join as plaintiffs in these suits, making all persons interested parties thereto. Their claim, briefly stated, is that the land, to which reference has been made, was purchased with assets belonging to the estate of Calvin Atkins, deceased, and that the notes in the hands of Adams, administrator of the widow, stand for money which came from the same source. They assert that, upon the death of Margaret Atkins, they, jointly with defendants Cole and Estes, became entitled, as remainder-men under the will of her husband, to the fund held by her for life, and seek to follow it into the property in which it was invested by her. Plaintiffs brought three separate actions. The one in which Adams is a defendant is to reach assets in his hands, which, plaintiffs say, were trust funds held by his intestate, and constitute no part of her estate, but really represent property of the remainder-men; that against Cole seeks a construction of the will, and a decree declaring that the land conveyed to him, as well as that retained by Mrs. Atkins, is held, by the parties having the legal title, in trust for plaintiffs and the others, who were to take at her death; and the one against Collins was for a like purpose as to the land given him by Dr. Cole, his co-defendant. The decree entered in each case is identical. It embraces all the matters litigated in the three suits. The court declared that Mrs. Atkins was a tenant for life; took an account of the notes and effects received by her under the will; decreed to the remainder-men the title to the land, which she held at her death, and credited her with the amount invested therein. This left a balance of...