Branstetter v. Branstetter
| Decision Date | 09 July 1917 |
| Docket Number | (No. 100.) |
| Citation | 197 S.W. 688 |
| Parties | BRANSTETTER et al. v. BRANSTETTER et al. |
| Court | Arkansas Supreme Court |
Suit between M. S. Branstetter and others, and Charles Branstetter and others. From a decree for the latter and an order dismissing their bill of review, the former appeal. Affirmed.
This is a suit for partition. The complaint alleged that S. M. Branstetter and M. S. Branstetter, one of the appellants herein, were the owners as tenants in common of the land involved, which they obtained by deed executed to them jointly by one P. A. Douglas; that thereafter S. M. Branstetter died, leaving a will by which he devised one half of his estate to his son, M. S. Branstetter, and the other half to the heirs of another son, S. F. Branstetter, whose heirs are made parties to the suit. It was further alleged that the appellees, Roberta and Alice Branstetter, were the sole heirs of A. O. Branstetter, who had no right or claim to any of the land involved in the suit, but, as appellants were informed, were claiming some interest therein. The complaint then alleged that M. S. Branstetter had expended $1,244.65 in making permanent improvements on the land, and S. M. Branstetter had expended the sum of $619.56 in making permanent improvements; that M. S. Branstetter and the heirs of S. F. Branstetter own each a one-half interest in the land. The complaint further alleged as follows:
Appellees Alice and Roberta Branstetter answered, in which they denied that the appellants were the sole owners of the land. They alleged that S. M. Branstetter died leaving a will, in which he made provision that the appellees were to receive a certain judgment which he held against the estate of their father in the sum of $617.36; that thereafter the said S. M. Branstetter and the guardian of the appellees entered into an agreement by which the said S. M. Branstetter accepted a small sum for said judgment; and that thereafter the same S. M. Branstetter made an alteration in his will by executing a codicil thereto as follows:
They alleged that the will, with the codicil, was duly probated. Appellees prayed that "their rights be determined and decreed by this court in the property above mentioned, and to all other relief to which they are entitled." The will, with the purported codicil, was attached and made an exhibit to the answer.
The appellants replied, in which they denied that the above purported codicil to the will of S. M. Branstetter constituted any part thereof, and alleged that it was merely a leaf pinned to the will and was of no force or effect, and denied that the appellees had any rights in the lands by reason thereof.
The will, with the purported codicil, was duly presented to the probate court, and there was a contest concerning the codicil to the will, and the court, after hearing evidence, admitted the will, together with the purported codicil, as the last will and testament of S. M. Branstetter, deceased. An appeal was taken to the circuit court from this order of the probate court, and the circuit court approved the finding and judgment of the probate court, and its judgment was certified down, and a final judgment was entered by the probate court admitting the will, with the purported codicil, as the last will and testament of S. M. Branstetter.
The deposition of M. S. Branstetter was heard, and a deed from Douglas to S. M. and M. S. Branstetter was introduced, and the court, after hearing the testimony, found that M. S. Branstetter is the owner of one-third of the land involved in the suit; that the heirs of S. F. Branstetter, deceased, who are specifically named in the decree, are the owners of one-third interest in the land, and that the appellees, as the children and heirs of A. O. Branstetter, are the owners of one-third of the estate of S. M. Branstetter, deceased. The court further found that the parties to the suit were entitled to have the lands divided according to their respective interests, and entered a decree that the five acres (describing it) be partitioned and divided, giving to M. S. Branstetter a one-third thereof in severalty; to Nettie Branstetter, widow of L. N. Branstetter, a one-ninth interest for her life; to the children and heirs of S. F. Branstetter (naming them) a one-third interest (dividing the same in severalty between them); and to the children and heirs of A. O. Branstetter (appellees here) the remaining one-third.
The court then appointed commissioners to make partition according to the decree and directed them to report their acts to the court. This decree, as appears by nunc pro tunc entry, was rendered on February 1, 1915. An appeal was prayed from this decree, and on appellee's motion such appeal was dismissed by this court on the ground that if the decree was final the time for appeal had expired, the transcript not having been lodged with the clerk of this court within six months from the rendition of the decree; and, if not, the appeal was premature.
On September 25, 1916, the commissioners appointed to make partition having reported that the land was not susceptible of division, the court entered a decree approving said report of the commissioners and directing that the lands be sold for the purpose of the partition, and directing that the proceeds of the sale should be distributed pro rata according to the respective interests of the parties as set forth in the original decree. From this decree, directing the sale of the lands for partition, this appeal has been duly prosecuted.
On January 13, 1917, the appellants filed what they designated as a "bill of review," in which they asked the court to review and correct its original decree, on the ground that on the face of the record it appeared that the title to the land had been acquired from Douglas by appellant M. S. Branstetter and his father, S. M. Branstetter; that the appellant, in his own right, owned a one-half interest in the whole land, and that the appellees, who only claimed title through the father of M. S. Branstetter, could only have had an interest in one-half, so that on the face of the record it appeared that there was a palpable error in giving the appellant M. S. Branstetter only a one-third interest in the entire land.
The chancellor dismissed the bill of review, from which appellants also prosecute an appeal.
Appellants' counsel, in their brief, state that both appeals are prosecuted for one purpose, which is to correct an alleged error on the part of the chancellor in declaring what were the respective interests of the parties in the land and the proceedings thereon.
W. N. Carpenter, of De Witt, and Samuel Frauenthal, of Little Rock, for appellants. Botts & O'Daniel, of De Witt, for appellees.
WOOD, J. (after stating the facts as above).
I. Appellees demurred to the complaint on the ground that the court did not have jurisdiction, and the demurrer was overruled and they excepted to the ruling, but they did not stand on the demurrer, and afterwards answered and have not urged in their brief that the court erred in taking jurisdiction of the case. While the complaint does not state expressly that the appellants, or any of them, are in possession of the land, it does set up that improvements were made, and, taking the complaint all together, it should be treated as one where the appellants, or some of them, were in possession of the lands in controversy, holding the same for the others, who are appellants, and who were tenants in common. But the suit, so far as the appellees are concerned, cannot be treated as a suit merely in partition, because appellants, in their complaint, alleged that the appellees had no right or claim to any of the land, and in their response to appellees' answer they denied that appellees "acquired or had any rights in said land."
Therefore, while the complaint could be treated as one for partition so far as the tenants in common were concerned, whose interests or title were not disputed, so far as the appellees are concerned it is more in the nature of a suit on the part of ...
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