Casler v. Gray

• Decision Date: 12 February 1901
• Parties: CASLER et al. v. GRAY.
• Court: Missouri Supreme Court

60 S.W. 1032

159 Mo. 588

CASLER et al. v. GRAY.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

EJECTMENT — CURTESY — ESTOPPEL — WILL — TRUST DEED.

1. Where an executor sold the land of his testatrix, under an order of the probate court, to pay debts, the rights of the husband of the deceased as tenant by the curtesy are not affected by the fact that one of the debts proved against the estate, and satisfied with the proceeds of the sale, was secured by a deed of trust of the land, since such trust deed would affect such right only when the land was sold under the deed.

2. Under Rev. St. 1889, § 8869, providing that a married woman may devise her lands, subject to the right of the husband to his curtesy therein, a wife by devising her land to her children cannot deprive her surviving husband of his right to the possession thereof during his life as tenant by the curtesy.

3. Where the land of a testatrix was sold by order of the probate court to pay debts proved against her estate, the purchaser at such sale cannot oppose the right of the surviving husband of such testatrix to possession of such land as tenant by the curtesy on the ground that he was estopped from claiming curtesy in her estate by having accepted bequests made to him in his wife's will, unless such estoppel is pleaded.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Action by John H. Casler and another against Mary E. Gray. From a judgment in favor of plaintiffs, defendant appeals. Modified and affirmed.

L. A. Martin, for appellant. Sheetz & Sons, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of the N. E. ¼ of section 19, and also 3½ acres off of the east side of the N. E. ¼ of section 24, in township 57, of range 24, in Livingston county. The petition is in the usual form, and the answer a general denial. The case was tried by the court sitting as a jury, who rendered judgment in favor of plaintiff for the possession of the land and $137.50 damages. Defendant appeals.

The case was submitted in the court below upon the following agreed state of facts: "It is admitted: That Martha Casler, formerly Martha J. Reeves, is the common source of title, and that she departed this life in Livingston county, Missouri, on the 13th day of April, 1893. That the plaintiff John Casler and Martha Casler, formerly Martha J. Reeves, were married on the 31st day of July, 1883, and that the plaintiff John H. Casler was their son, and is now living, and aged about 7 or 8 years. That Martha Casler, formerly Martha Reeves, bought the premises in suit on the 3d day of September, 1881, and filed her deed for record in the recorder's office of Livingston county, Missouri, on November 13, 1882, and was recorded in Book 54, at page 332. That said Martha J. Reeves took possession of said premises and occupied the same as her homestead in connection with the southeast quarter of section 19-57-23, west of Grand river. That at the time of her death she was occupying said premises aforesaid with plaintiff John Casler, as her husband, and plaintiff John H. Casler, their infant son, which constituted their family. That defendant bought said premises at an administrator's sale of the estate of Martha J. Casler, which administrator's deed is hereby considered in evidence, subject to any and all the objections which plaintiffs may have thereto, and took possession of said premises under and by virtue of said deed on March 1, 1895, and was in possession thereof at the time this suit was brought, and is now in possession thereof. That the monthly rents and profits of said premises are $4.12. That the plaintiffs have been damaged in the sum of $137.50, for which they shall have judgment if they recover in this suit. That all the probate papers and records in the estate of Martha J. Casler in the probate office and court in Livingston county, Missouri, are considered in evidence, subject to any and all objections of either party. The plaintiff John Casler was the husband of Martha J. Casler, and is the legally appointed and duly qualified guardian and curator of John H. Casler, his infant son. That the will of Martha J Casler may be considered in evidence. That either party may offer any other further and additional testimony on the hearing of this cause, and any further testimony can be offered by either party; and any correction of facts can be made, and all records in case considered in probate and recorder's office."

Martha Reeves took possession of the premises and cultivated the same, and on the 31st day of July, A. D. 1883, married the plaintiff John H. Casler, by whom she had one son, the plaintiff John H. Casler, Jr., who was at the time of the trial aged 7 or 8 years. At the time of her death she was occupying the premises in suit as her homestead with the plaintiffs, and they constituted the family. On the 11th day of February, A. D. 1890, plaintiff John H. Casler joined his wife in a deed of trust on the premises in suit and other lands to secure a note for $360 and interest, on which at her death there was due about $169. Said trust deed specified that on payment of $100 of the principal the premises in suit...