Carr v. Dings

• Decision Date: 31 October 1873
• Citation: 54 Mo. 95
• Parties: CHARLES BENT CARR, Appellant, v. WILLIAM DINGS, Respondent.
• Court: Missouri Supreme Court

54 Mo. 95

CHARLES BENT CARR, Appellant,

v.WILLIAM DINGS, Respondent.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Jefferson Circuit Court.

John L. Thomas & Brother, for Appellant.

I. The statute of limitations did not begin to run against the children of George Washington Kerr, until Mrs. Susan Kerr's death, which took place in 1865, and hence, the plaintiff's claim was not barred. The plaintiff's cause of action did not arise till Mrs. Kerr died. (Park vs. Cheek, 4 Cold., 20; Smith vs. Thompson, 2 Swan, 381; Ang. on Lim., §§ 470-475.)

II. The law raises a presumption after the lapse of twenty years, that the debts have been paid, and if they have not been paid and can still be indorsed the defendant was bound to show it.

Sam. Reber, for Respondent.

I. The will vested the legal title in Allen subject to be divested on and after payment of the testator's debts. But the title never can pass until this condition has happened, and that it has happened, is to be made out by evidence.

II. If Susan Kerr had filed a bill against Beverly Allen to compel a conveyance, she would have had to allege and (if he did not admit it) to prove that the debts were paid and the other residuary legatees, to-wit: the children of G. W. Kerr would have had to do the same thing. But plaintiff has introduced no evidence showing payment of the debts of the estate. He did not even show that it had ever been administered, or that the executor qualified. He is therefore without proof on a material point or compelled to rely on presumptions. But presumptions of a conveyance by a trustee are only indulged where the time at which he was required to make it, has passed--or where there is sufficient reason shown to support the presumption. (Perry Trusts, §§ 349, 354, et seq, and where the doctrine on the subject is fully stated.) But according to the terms of the will in this case, the trust might still continue to be a subsisting active or accomplished trust.

III. If the beneficiary claims that the trust has in point of fact been accomplished, he must establish the fact by affirmative evidence. If he does not choose to go into court (where the facts can most conveniently be established) to get a decree of title against Allen's heirs, he must at least show by the record in the Probate Court, the settlement of Allen's estate, or other competent evidence, that the event has happened on the happening of which the estate of the trustee was to cease.

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment brought to recover a tract of land in Jefferson County.

The defendant by his answer denies the plaintiff's title to the land or his right to the possession thereof. And for further answer avers that he and those under whom he claims said land, have been in the open and notorious possession of the same and every part thereof, claiming the same as their own absolute property under claim of title thereto, denying the title of all other persons, for more than ten years next before the action was commenced; and that neither the plaintiff nor his ancestors, predecessors or grantors or other persons under whom plaintiff claims said land, have been seized or possessed of said lands or any part thereof, or interest therein, for more than ten years next before the commencement of this action. Wherefore, &c.

To the plea of the statute of limitations the plaintiff replied, denying that his right of action was barred by the statute, and averred that one John Kerr was seized in fee simple of the premises in question in the year 1843, and that in the month of December of that year said Kerr executed, in proper form, his last will, by which he bequeathed to his wife, Susan Kerr, the said premises, for and during her natural life, with remainder to the children of George Washington Kerr; that after executing said will, said Kerr departed this life in 1843 leaving the same as his last will; that said will was after his death duly probated and recorded by the Probate Court of St. Louis County where he died; that in May, 1852, the said Susan was married to John A. Craig; that in the year 1864 said Craig died, and that in the year 1865 the said Susan also died; that the adverse possession of defendant and those under whom he claims, if any such possession ever existed, did not commence till about the year 1862, and could not commence or run against Susan until she became discovert in the year 1864.

The plaintiff further replied, that he claimed title by deed from Mrs. Clendennin and George W. Kerr, the only children of George Washington Kerr, and avers that the right of him and those under whom he claims to institute a suit for the recovery of said premises, did not arise till the death of said Susan Craig in the year 1865.

The cause was tried by the court, a jury having been waived by the parties.

The plaintiff introduced in evidence; First--The exemplification of a patent from the United States, for the land in controversy, to John Kerr, dated July 15, 1825. Second--The last will of John Kerr, the substantial portion of which is as follows:

“First, I revoke all former wills by me at any time heretofore made. Second, I hereby constitute and appoint Beverly Allen, of the city of St. Louis, aforesaid executor of this my last will and testament.

Third, I devise and bequeath to my said executor all my estate, real, personal and mixed, and whether held by me as joint tenant, tenant in common or in severalty, in trust for the payment of my debts, which he will pay and discharge in the order prescribed by law for the payment of debts of deceased persons, hereby giving to my said executor power to lease or sell the same, without intervention of courts, as to him shall seem best for my estate and creditors; also in trust, after the payment of my debts, to convey whatever may remain of my estate to my wife, Susan Kerr, to be used and appropriated by her, in and about her maintenance and support, with power to my said wife to dispose of one-fourth of the same, remaining at time of her death, as to her shall seem fit, and the residue of what may so remain shall, at the time of her death, pass to and be vested in the children of my deceased brother, George Washington Kerr. In testimony, etc.”

This will was shown to have been duly proved up in the Probate Court of St. Louis County.

Third.--Plaintiff offered evidence tending to prove, that John Kerr died in 1843...