Collins v. Crawford

• Decision Date: 14 May 1907
• Citation: 103 S.W. 537
• Parties: COLLINS et al. v. CRAWFORD.
• Court: Missouri Supreme Court

103 S.W. 537

COLLINS et al. v. CRAWFORD.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. EXCEPTIONS, BILL OF—INSTRUCTIONS—MOTION FOR NEW TRIAL.

Where a bill of exceptions called for the copying of the instructions and the motion for a new trial, it was sufficient without their being carried into the original bill in full.

2. APPEAL—PARTIES—TRANSFER OF INTEREST— DISMISSAL.

Where, in ejectment, one of the appellants transferred her interest in the land in controversy to respondent pending appeal, the appeal as to her would be dismissed.

3. WILLS—CONTINGENT REMAINDERS.

Testator bequeathed one-eighth of certain land to defendant in trust for C., and authorized defendant to use such part of the principal as should be necessary for C.'s support, and that of her children in case of sickness or need, and, at C.'s death, the remainder of the trust fund should go absolutely to her children, if living. Held, that C.'s children acquired only a remainder contingent on any part of the trust fund remaining after C.'s death, and also on their surviving C.

4. PARTITION—PARTIES.

One holding a mere future contingent remainder intrest in land, the legal title to which was vested in a trustee, with power to sell, was not a necessary party to a suit for partition.

5. TRUSTS — ACTIVE TRUSTS—DISPOSITION OF TRUST FUNDS.

Testator bequeathed an undivided one-eighth of certain land to defendant in trust for C., with power to devote such part of the principal, as well as the income, to the support of C. and her children, if necessary, during C.'s life, and, after her death, to transfer the remainder of the trust estate to her children, if living. During C.'s life the devisees of other undivided interests brought suit for partition, to which both the trustee and C. were made parties, in which all the land was sold, and C.'s proportion of the proceeds, after satisfying certain indebtedness to which it was subject under the will, was paid to defendant, and thereafter necessarily consumed by him for C.'s support. Held, that the trust was an active one, and that C.'s interest in the property converted into money by the partition decree was properly disposed of as against her children.

Appeal from Circuit Court, Audrain County; H. W. Johnson, Judge.

Ejectment by Oscar Collins and another against T. W. Crawford. From a judgment for defendant, plaintiffs appeal. Dismissed as to plaintiff Blanche Groves, and affirmed as to plaintiff Collins.

George Robertson, for appellants. P. H. Cullen and Fry & Rodgers, for respondent.

GANTT, J.

This is an appeal from a judgment of the circuit court of Audrain county in favor of the defendant in an action of ejectment by the plaintiffs for the west half of the northwest quarter 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 defendant pleads that J. H. Crawford was the common source of title of both plaintiffs and defendant, and 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; that, among these children, was Mrs. Mattie S. Collins, the mother of these plaintiffs. 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 life time, 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 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 Mrs. 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 in said estate and said lands for the support of herself and her children during her life, 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 provisions 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; and 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 said 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 plaintiffs herein had personal knowledge of all the facts herein before stated, and knew of the said decree in partition at the date thereof, and were 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 been paid over to the said Thomas W. Crawford as trustee for the benefit of their mother, and during all that time the plaintiffs were of age and had personal knowledge of the provisions of said will and of the condition of the estate, and of the institution of the said partition suit, and the decree therein and of the sale and order of distribution, as well as of the other facts and ...