Collins v. Crawford

• Decision Date: 14 July 1908
• Citation: 112 S.W. 538,214 Mo. 167
• Parties: COLLINS v. CRAWFORD.
• Court: Missouri Supreme Court

112 S.W. 538

214 Mo. 167

COLLINS v. CRAWFORD.

Supreme Court of Missouri, Division No. 2.

July 14, 1908.

1. EQUITY—PARTIES—EXTENT OF INTEREST.

In chancery suits, all persons legally and equitably interested in the subject-matter and result of the suit must be made parties; but there must be a present and substantial interest, as distinguished from a mere expectancy of future contingent interest.

2. JUDGMENT—RELIEF—SCOPE OF PLEADINGS.

Testator bequeathed one-eighth of certain land to defendant in trust for C.; defendant to use any part thereof for C.'s support and at her death any remainder to go to her children. During C.'s lifetime, the devisees of the other undivided interests brought partition, and the trustee and C. were made parties; plaintiff, child of C., not being made a party. The land was sold, and C.'s part of the proceeds paid to the defendant as trustee and paid out by him for C.'s support. The petition for partition did not allege the trusteeship of defendant, but alleged that the estate had not been finally settled, but that all claims against it had been paid. The decree required the proceeds to be distributed under the provisions of the will. Rev. St. 1899, § 4383 (Ann. St. 1906, p. 2415), provides that no partition shall be made contrary to the intent of testator. Section 4384 (page 2416) provides that, if the estate has not been finally settled, none of the partitioned estate shall be distributed until the final settlement, and also requires the court to declare the interests of the parties. Held, that though the petition should have averred the trust, since the circuit court had jurisdiction of such suits, and the land was within its territorial jurisdiction, the partition proceedings bound plaintiff's interest in the estate.

3. WITNESSES — COMPETENCY — TRANSACTIONS WITH DECEDENT.

Testator devised lands to defendant in trust for plaintiff's mother; the proceeds to be used for her support, any remainder to be paid plaintiff. During her lifetime the estate was partitioned, and the mother's share paid to defendant, who expended it in her support; plaintiff, the remainderman, not being a party thereto. After her death, plaintiff sued defendant for his share of the land. Held, that defendant was not incompetent to testify as to the disposition of the funds received by him under Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), providing that, where one of the parties to a contract in issue is dead, the other may not testify; plaintiff not claiming through his mother, and no contract being involved.

On rehearing. Former opinion, dismissing the bill as to one of plaintiffs, and confirming a judgment for defendant as to the other plaintiff, affirmed.

For former opinion, see 103 S. W. 537.

GANTT, J.

This cause was argued and the decision rendered herein on May 14, 1907. Thereafter, in due time a motion for rehearing was filed, and upon consideration a rehearing was granted. The cause has been reargued at this term of the court. The appeal is from a judgment of the circuit court of Audrain county in favor of the defendant in an action of ejectment by the plaintiff for the W. ½ of the N. W. ¼ of section 28, township 52, range 8, in said county.

Ouster was laid as of the _____ day of _____, 1903. The answer of the defendant was, first, a general denial; and, second, a special defense, wherein plaintiff pleads: That J. H. Crawford was the common source of title of both plaintiff and defendant. That prior to his death the said Crawford by last will and testament devised and bequeathed all of his property subject to his debts and certain advancements made by him to his eight children, and that, among these children, was Mrs. Mattie S. Collins, the mother of this plaintiff. The provision for Mrs. Collins in the said will was as follows: "I give and bequeath the shares of my daughter Mattie S. Collins and J. Robert Crawford, my son, in said estate, in trust, and the same shall be held in trust for them as herein provided. I hereby appoint my son Thomas W. Crawford trustee of my said daughter Mattie S. Collins and my son J. Robert Crawford, and will direct that all money and property coming to said Mattie S. Collins and J. Robert Crawford shall be paid to, and received and held by said Thomas W. Crawford in trust as trustee for them. I will and bequeath to my said daughter Mattie S. Collins, to have and to hold during her natural lifetime, and to the children of her body at her death, all in trust, all of lot three in block five in Clark's addition to Mexico, Missouri, which she is to take and the same to be charged to her at and for the sum of seven hundred dollars in the general distribution of the residue of my estate above mentioned. And it is my will and I give all money and property as the share of said Mattie S. Collins in my said estate in trust for her use during her natural life and at her death to her children absolutely. And I direct that said trustee shall hold her said share of her estate in trust for her during her natural life, she to be paid the income thereof annually, with power to said trustee to use such part of the principal of her part of said estate as shall be necessary for her support and that of her children in case of sickness or need on the part of herself and children. At the death of said Mattie S. Collins, it is my will and request that her said estate remaining so held in trust shall go absolutely to her children, if living, but if she have no children surviving her, it is my wish and I direct that the same go, and I bequeath the same to her brothers and sisters or their heirs." The will further provided that Mrs. Collins should be charged with an advancement of $286 and also with any indebtedness of the said Mattie S. Collins to said estate, or any liability of said J. H. Crawford for Mattie S. Collins should also be deducted from her share in his estate. That at the time of his death the said J. H. Crawford was security for Mattie S. Collins on a note held by one Harper to the amount of $609.22, which was allowed against the estate of J. H. Crawford. That said J. H. Crawford died in April, 1898, testate, and that in the year 1900 the said children of J. H. Crawford, J. Robert Crawford, and Mattie S. Collins, by their trustee, Thomas W. Crawford, as plaintiffs, instituted a suit in partition in the circuit court of Audrain county against Mary Botts and Cordelia Botts, the minor heirs of Cora Botts, a daughter of the said J. H. Crawford, deceased, for the partition of the lands devised to them in said will in accordance with the provisions of said will. That in the said petition for partition the said plaintiffs set forth the provision of the said will of J. H. Crawford, the advancements therein charged, the indebtedness and liabilities of the various legatees of said estate, and that the interest of the said Mattie S. Collins was bequeathed and devised to the said Thomas W. Crawford in trust for said Mattie S. Collins, with power to said trustee to use her share for the support of herself and her children during her natural lifetime, and asked for a decree in partition of said land in accordance with the said will, and that the share of the said Mattie S. Collins be set off or paid in trust to said Thomas W. Crawford as provided by said will. That on the 23d of January, 1901, a decree was rendered in partition in accordance with the provision of said will, and, as prayed for, an order of sale made that the sheriff sell the said lands, and, after paying all costs and expenses of said suit out of the proceedings, to pay the remainder to the executors of the said estate of J. H. Crawford, deceased, to be held by said executors subject to the orders and judgments of the probate court of Audrain county, and to be distributed by said executors under the provisions of the said will. That all of the lands were sold by the said sheriff under said decree and partition, except lot 3 in block 5, Clark's addition to Mexico, bequeathed to Mattie S. Collins, and at said sale the defendant, T. W. Crawford, became the purchaser of the 80 acres of the said land herein sued for. That said sale and partition was approved at the October term, 1901, of the circuit court, and the 80 acres described in plaintiff's petition was conveyed by the sheriff to the defendant T. W. Crawford. Defendant further stated that the said sheriff, in compliance with the said decree of the court, after paying the costs and expenses, paid the remainder of the proceeds of said sale to C. E. Crawford and Thomas W. Crawford, the executors of the estate of said J. H. Crawford. That afterwards, on December 9, 1901, said executors made a final distribution of the proceeds of said estate, including the proceeds of said lands and the share of the said Mattie S. Collins bequeathed to the said Thomas W. Crawford in trust, amounting to $2,164.65, and, deducting therefrom the advancement charged against her in said will and the $700 as the value of the said lot devised to her and her indebtedness to said estate, there remained $546.63, which was paid to the said Thomas W. Crawford as trustee in trust for said Mattie S. Collins, and defendant says that at the time of the said distribution, and for a long time thereafter, up to the date of her death, on the ____ day of April, 1903, the said Mattie S. Collins was continuously ill with consumption, and her said trustee, the defendant herein, in obedience to the provisions of the said will, used said balance of $546.63 for her support and maintenance, including doctor bills, nurses, medicine, etc., and the same was necessary for her maintenance. Defendant further states that the plaintiff herein had personal knowledge of all the facts hereinbefore stated, and knew of the said decree in partition at the date thereof, and was present when the said lands were sold under said decree, and knew of, and approved of, the proceeds of said sale to the amount of $546.63 having...