Cannon v. Unknown Heirs of Curtis

• Decision Date: 03 June 1913
• Citation: 157 S.W. 860
• Parties: CANNON v. UNKNOWN HEIRS OF CURTIS et al.
• Court: Missouri Court of Appeals

157 S.W. 860

CANNON v. UNKNOWN HEIRS OF CURTIS et al.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

1. PARTITION (§ 21) — PROPERTY SUBJECT TO — WILLS.

Under Rev. St. 1909, § 583, requiring courts concerned in the execution of wills to have due regard to the direction thereof and the true intent of testator, and section 2569 providing that no partition of land shall be made contrary to the intention of testator devising the land, partition of land cannot be made in contravention of the will devising it.

2. PARTITION (§ 21) — PROPERTY SUBJECT TO — WILLS.

A will whereby testator gave to his wife all his real estate for life and then to a daughter and the heirs of her body, and whereby he declared that, in the event of the death of the daughter childless, the executor should sell the land and divide the proceeds, and whereby he empowered the executor to make deeds, directed the executor to sell the land on the death of the daughter childless, and divide the proceeds, and he acquired a power of disposition, and a partition could not be had because it would be in contravention of the will.

3. EXECUTORS AND ADMINISTRATORS (§ 120) — POWER OF EXECUTORS — PERSONAL TRUST.

A will which directs the executor to sell real estate and divide the proceeds on the happening of a contingency, and which empowers the executor to make deeds, does not repose on him any personal trust, but a sale must be made on the happening of the contingency, and the power to sell inheres in the office and may be exercised by the administrator de bonis non.

Appeal from Circuit Court, Lincoln County; B. H. Dyer, Judge.

Action by Clarence A. Cannon against the unknown heirs of Henry B. Curtis and others. From a judgment for plaintiff, defendant John R. Cannon, administrator de bonis non of Samuel Cannon, deceased, appeals. Reversed and remanded.

Creech, Penn & Palmer, of Troy, for appellant. Woolfolk & Cannon, of Troy, for respondent.

ALLEN, J.

This is an action in partition. One Samuel Cannon died testate in 1857, seised of an estate in fee in certain lands in Lincoln county, Mo. The provisions of his last will and testament affecting the land here sought to be partitioned are as follows:

"Second. I will that my wife, Hannah Cannon, retain and be in possession of all my real estate during her natural life, and in lieu of dower of my personal property or perishable estate, she have and retain an amount equal to two hundred and twenty dollars worth."

"Fifth. After my death, and after the death of my wife Hannah Cannon, I will to my daughter, Lydia Cannon, and to the heirs of her body (if she ever have any) the tract of land on which I now reside. In the event she should die childless, then my said executor shall sell said land and divide the sale money equally between all my children."

The will then provides as follows:

"Sixth. I hereby appoint John Cannon my executor to carry into effect the provisions of this will, waiving all forms of law, and empowering my said executor to sell any of my personal property either at public or private sale as he may think best, collect debts, make deeds, sue and defend, and make and give acquittance, and in fact, to do any and everything relative to my said estate that I might or could do were I present and living, hereby confirming and satisfying whatsoever my said executor may do by virtue of this will, and should anything prevent John Cannon from acting, then Samuel Cannon, Isaac Cannon, William, James or Bluford Cannon is appointed in his stead, so that any one of my sons above named is appointed my executor should anything prevent John Cannon from acting I give and grant all power to which ever of my sons may act that I have given to the first named executor."

The record shows that John Cannon qualified as executor of the will and administered upon the said estate until his death in 1888. The record does not disclose who succeeded him as executor, but it does appear that prior to the year 1911 all of the sons of the testator named in the sixth paragraph of his will departed this life. It further appears that the testator's wife, Hannah Cannon, died many years ago, and that his daughter, Lydia, died in 1911, without having had issue; that upon the death of said Lydia, without issue, one John R. Cannon was duly appointed administrator de bonis non cum testamento annexo of the estate of said Samuel Cannon, deceased, by the probate court of said Lincoln county, and duly qualified as such administrator. Thereafter, during the same year, this suit was instituted in the Lincoln county circuit court by plaintiff, Clarence A. Cannon, one of the heirs at law of said Samuel Cannon, deceased, setting up that plaintiff and the defendants named in the petition herein are tenants in common of an estate in fee simple in the land in question, describing it, and being the same land mentioned in the fifth paragraph of the testator's will, above set out, and seeking to have said land sold in partition, and the proceeds of the sale thereof, after the payment of the costs and expenses of the suit, distributed among the parties to the action in proportion to their alleged respective interests in the land. Thereafter the appellant, John R. Cannon, the administrator de bonis non, applied to the court requesting to be made a party defendant to the suit and to be permitted to file pleadings therein, which request was by ...