Buckner v. Buckner

• Decision Date: 28 March 1919
• Docket Number: No. 19901.,19901.
• Citation: 210 S.W. 887
• Parties: BUCKNER v. BUCKNER et al.
• Court: Missouri Supreme Court

210 S.W. 887

BUCKNER v. BUCKNER et al.

No. 19901.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Appeal from Circuit Court, Madison County; Peter H. Huck, Judge.

Suit for partition by Maude A. Buckner against Price Buckner and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Ed. D. Anthony and Jos. F. Chilton, both of Fredericktown, for appellant.

David M. Tesreau and Anthony & Davis, all of Fredericktown, for respondents.

BROWN, C.

This is a suit for the partition of certain lands in Madison county, Mo., of which one Aylette Buckner died seized on May 24, 1876, leaving a will which is the subject of this controversy. The plaintiff is the widow of Thomas L Buckner, son of defendant Robert A. Buckner, Sr., and grandson of the testator. He died in 1911, leaving three children, the defendants Price Buckner, Carl Buckner, and Earl Buckner. The plaintiff duly elected to be endowed with a child's share of his lands absolutely. The defendant Robert A. Buckner, Sr., is the only son of the testator. All the other defendants are children and grandchildren of Robert A. Buckner, Sr., and persons claiming some interest through or under them respectively.

The will of Aylette A. Buckner, so far as it affects the issues in this case, after bequeathing a legacy of $5 to his only son, Robert A. Buckner, devises and bequeaths his entire estate to his wife, Martha Ann Buckner, for life, with full power of disposition, and proceeds as follows:

"Third. It is my will and I do hereby give, devise and bequeath the residue of my estate remaining in her hands at the death of my beloved wife of whatever nature or kind, to the heirs of my said son, Robert Alfred Buckner, which are born unto him in lawful wedlock, or to the descendants of such heirs so born in lawful wedlock, share and share alike therein, but in case and in the event my beloved wife should outlive the child or children and issue born unto my said son Robert Alfred in lawful wedlock or their descendants, then the whole of my property of whatever character, nature or kind shall be my wife's absolutely and in fee simple, thereby giving and granting unto her full power and authority to dispose of the same by gift, deed or will as she in her wisdom may then see proper to do.

"And it is my will that in the event my said son Robert Alfred Buckner should die without any other issue born unto him in lawful wedlock than his present son, Quarles A. Buckner (my little grandson who now lives with me), and he the said Quarles A. Buckner should outlive my beloved wife, Martha Ann, and he the only lawful heir of my said son Robert Alfred, then I will bequeath and devise unto him the said Quarles A. Buckner, all the balance of the property hereinbefore devised to my wife or the proceeds thereof, which she may have at the time of her death."

The widow died October 22, 1892, leaving these lands undisposed of. At the time of the execution of his father's will in 1875, and also at the time of the latter's death in the following year, the defendant Robert A. Buckner, Sr., was a widower having one child, Quarles A. Buckner, who lived with his grandfather. After the death of the testator the son remarried, after which he had seven other children, who were living at the death of Martha Ann Buckner. After her death three others were born who are still living. Several others were born to him and his wife and died in infancy.

The answer pleads the construction of the will in a suit brought by the defendant Robert A. Buckner, Jr., and Thomas A Buckner, sons of Robert A. Buckner, Sr., in the Madison circuit court September 27, 1909, against all other beneficiaries in the will, to obtain a judicial construction of its terms, in which the facts were, as now, admitted, and a final decree entered by direction of this court. Buckner v. Buckner, 255 Mo. 371, 164 S. W. 513. After reciting the facts, the opinion of this court, and the terms of the will, said decree is as follows:

"The court therefore determines, decrees, and construes the aforesaid will to be valid and lawful; that the defendant Robert A. Buckner, Sr., took nothing by the terms of said will except the sum of $5, and that he took no interest in the aforegoing described real estate; and that Martha Ann Buckner, the widow of Aylette Buckner, took a life estate in said land and that at the death of the said Martha Ann Buckner, to wit, on the 22d day of October, 1892, the above-described land became vested in the children of said Robert A. Buckner, Sr., who had theretofore been born in lawful wedlock or to their direct descendants, subject, however, to the birth of other children to said Robert A. Buckner, Sr., in lawful wedlock, after the death of said Martha Ann Buckner, said after-born children to become vested immediately upon their birth with a share in said property equal to that of their brothers and sisters.

"And the court further finds, decrees, and adjudges that at the time of the death of said Martha Ann Buckner, the title to said real estate then vested, share and share alike, in the following children of Robert A. Buckner, Sr., born in lawful wedlock, and who were then living, to wit: Quarles A. Buckner, Martha Buckner Hamlett, Robert A. Buckner, Jr., Thomas L. Buckner, Lillie B. Buckner, Lula P. Buckner, Elizabeth V. Buckner, and Harry F. Buckner.

"And that the said children of Robert A. Buckner, Sr., born in lawful wedlock, born after the death of Martha Ann Buckner, became immediately upon their birth by the provisions of said will vested each with a share in and to said property equal to that of their said brothers and sisters born before the death of said Martha Ann Buckner.

"It is further ordered by the court that the clerk of this court make a...