Cox v. Boyce

• Decision Date: 12 December 1899
• Citation: 54 S.W. 467,152 Mo. 576
• Parties: COX v. BOYCE et al.
• Court: Missouri Supreme Court

54 S.W. 467

152 Mo. 576

COX v. BOYCE et al.

Supreme Court of Missouri, Division No. 1.

December 12, 1899.

CURTESY IN REMAINDERS — GUARDIAN AND WARD — ORDER TO SELL MINOR'S REAL ESTATE — COLLATERAL ATTACK — RESIDENCE OF WARD.

1. A husband is not entitled to curtesy in a remainder estate of his deceased wife when she died before the expiration of the particular estate.

2. Where the probate court of the county where a minor resides appoints a guardian, and takes jurisdiction of the estate, and subsequently, on the minor's removing to a second county, the probate court of that county takes jurisdiction over the minor and estate, and orders his real estate sold, the sale cannot be collaterally attacked on the ground of the exclusive jurisdiction of the first court, when nothing appears on the face of the record of the second court showing that the minor was a nonresident of the second county, or that the court acted without jurisdiction.

3. The residence of a minor, whose custody her father surrendered to her grandfather, was the residence of the grandfather.

Appeal from circuit court, Lincoln county; Charles W. Wilson, Special Judge.

Action by Henry Cox against Green Boyce and others. From a judgment for plaintiff, defendants appeal. Reversed.

This is an action of ejectment, coming from the circuit court of Lincoln county. The plaintiff claims the land in suit as sole heir of his deceased infant child, who was the sole heir of her deceased mother, who was the wife of plaintiff. Defendant claims under a deed from the child's curator, made under judgment of the probate court of Howell county. The case turns on the question as to the validity of that deed. There is an equitable defense set up in the answer, but as the case will be disposed of before we reach that defense, it will be unnecessary to set it out in this statement. The land came from Joseph Hunter, who was the great-grandfather of the plaintiff's deceased child, through whom he claims. Joseph Hunter died in 1877, leaving a will, whereby he devised his land to his wife for life, remainder to his nine children and their heirs. One of these children died, leaving two children, of whom plaintiff's wife was one, who therefore inherited one-half of one-ninth, subject to her grandmother's life estate; and, dying in 1884, before her grandmother, the descent was cast on her child, who inherited the estate in expectancy, subject to her great-grandmother's life estate. This great-grandmother died in 1890, whereupon the life estate ended, and the remainder-men were entitled to possession. After the death of his wife, in 1884, the plaintiff took his child, then but a few months old, to her maternal grandfather, Samuel Slater, and gave her to him to keep and care for; and he did so, the child living with him until her death, in 1893. When the child was first given to Slater, in 1884, all the parties named resided in Lincoln county. In July of that year the probate court of Lincoln county appointed Slater curator of the estate of the child, and he qualified as such, but the child had no estate except her expectancy in this land. Later in the same year Slater moved to Howell county, and carried the child with him, where they resided until her death in 1893, and where he continued to reside. The records of the probate court of Lincoln county show no proceedings in the matter of the curatorship after the appointment. In 1891, after the death of the great-grandmother and the termination of the life estate, the child being then entitled to possession of her share of the land, the probate court of Howell county appointed Slater curator of the child, he qualified as such, and regular proceedings in that matter were thereafter had in that court, in the course of which the court ordered the curator to sell his ward's interest in the land, which he did, and made the deed under which defendants claim. The regularity of the proceedings in the probate court of Howell county are not questioned, but the point is made that those proceedings, though regular on the face of the record, were coram non judice, because the probate court of Lincoln county had already taken jurisdiction of the matter when the parties were resident there, and had appointed a curator, who had not been discharged. That is the real point of contention in this case. The trial was by the court without a jury, and the finding and judgment were for the plaintiff, from which this appeal is regularly taken.

Martin & Woolfolk, for appellants. Norton, A very & Young, for respondent.

VALLIANT, J. (after stating the facts).

1. From the written opinion filed in the case by the learned trial judge it appears that while, in his opinion, the judgment of the Howell county probate court was not subject to the collateral attack made on it, yet the plaintiff was entitled to recover, because he had an estate by the curtesy in the land; basing the conclusion on the decisions in Reaume v. Chambers, 22 Mo. 36, and Stephens v. Hume, 25 Mo. 349. In those cases it was decided that an estate by the curtesy initiate did not depend on actual seisin during coverture, for the reason that under our law actual seisin in the...