Crews v. Crews

• Decision Date: 07 April 1922
• Docket Number: No. 21168.,21168.
• Citation: 240 S.W. 149
• Parties: CREWS et al. v. CREWS et al.
• Court: Missouri Supreme Court

240 S.W. 149

CREWS et al. v. CREWS et al.

No. 21168.

Supreme Court of Missouri, Division No. 2.

April 7, 1922.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

Suit by J. A. Crews and others against Jid Crews and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

M. J. Lilly, of Moberly, for appellants.

A. H. Waller, J. W. Wight, and Edmund Burke, all of Moberly, for respondents.

WHITE, C.

Suit under section 1970, Revised Statutes 1919, to determine title to two tracts of land. The plaintiffs and defendants are the children and other descendants of James G. Crews, who died testate in the year 1869. The land involved consists of one 2-acre tract situated in the town of Clark, and a 40-acre tract of farm land. The plaintiffs claim an undivided 23/36 interest in the land. The defendant Bena Hart answered that she had no knowledge as to the matters alleged in the petition sufficient to form a belief. The defendant Leon Crews, a minor, answered, claiming a one thirty-sixth interest in the land. The defendant Jid Crews filed an answer in which he claimed to be the absolute owner of all the lands by virtue of two deeds wherein Mary Crews, the widow and executrix of James G. Crews, conveyed the land to him.

The plaintiffs in reply to the separate answer of Jid Crews alleged that the conveyances which Jid Crews received from Mary Crews were executed long after her discharge as executrix of the estate of James G. Crews, and she was without authority to execute them; that all the property of James G. Crews, according to the terms of the will after the education of the children and the death of his wife, should be equally divided among the children; that the two tracts described in the petition were not required in the education of the children of deceased, and Jid Crews by the conveyances received more than his share of the estate.

On motion of the plaintiffs the last clause of the answer was stricken out, and that action of the court is assigned as error. The case as presented probably contains all the evidence that could have been introduced had that part of the reply remained. The will of James G. Crews admitted to probate in 1889, omitting the formal introduction and attestation, is as follows

"First. I will that my just debts be paid. "Second. After all my debts are paid I hereby give and bequeath to my beloved wife Mary Crews all of my estate both real and personal to hold and enjoy during her natural life or widowhood, but if my said wife should marry after my death then I will that she have only one-third part of my estate during her natural life.

"Third. I will that my executrix whom I shall herein name shall after my death sell such of my personal property as she may think best, and apply, the proceeds to the payment of such debts as are due by my estate and if the personal property thus sold be not sufficient to Pay my debts then I desire that she shall sell such of my real estate as she may think best to finish paying my debts.

"Fourth. I desire that my executrix may at any time she may deem it for the best interest of herself and my children, sell any part or all of my real estate not disposed of to pay debts and loan tout the money or invest it in other real estate.

"Fifth. I desire that my executrix shall give all my children a fair education and at any time she may think proper I desire that she give such of my children as have not heretofore been given a horse, saddle and bridle out of my estate a horse, saddle and bridle.

"Sixth. I desire that all sales made under or by authority of this my will be made privately or publicly as my said executrix may think for the best and I further desire that my said executrix may give to each of my children at such time as she may think proper such of my property as she may think just and right.

"Seventh. I will that after all my children have been properly educated and after the death of my said wife that all my property be equally divided among all my children.

"Eighth. I hereby appoint my wife Mary Crews executrix of this my last will and testament.

"[Signed] J. G. Crews."

The estate of James G. Crews comprised more than 700 acres of land. The personal property belonging to the estate, as shown by the inventory, was not of any great value. Mary Crews, executrix, filed her final settlement, and was discharged May 15, 1873. Under the power contained in the will and for the purpose of reinvestment she conveyed some of the land belonging to the estate. Whether before or after her discharge does not amear. But in 1884 she purchased from one J. M. Reynolds the 2-acre tract involved in the suit, and conveyance was made to hen at that time. It is admitted that the money paid for this tract was realized from the sale of other real estate left by the testator. On the 8th of January, 1907, by warranty deed, Mary Crews conveyed to the defendant Jid Crews, the two-acre tract of land last mentioned. The consideration recited in the deed is as follows:

"For and in consideration of love and affection and the sum of one dollar and other valuable considerations to me paid."

The deed expressly reserves a life estate to Mary E. Crews.

On the 14th of June, 1917, Mary Crews conveyed the 40-acre tract involved in this suit to Jid Crews. The consideration recited in that deed is as follows:

"* * * In consideration of the sum of one hundred dollars, to be paid by said party of the second part, the receipt of which is hereby acknowledged, and the further consideration of the tender and devoted service of my son, the grantee in this deed, for the past twenty years, in supporting and caring for me in health and nursing me in sickness and for such services to be hereafter rendered me by my said son during the remainder of my natural life, I do hereby, under and by virtue of the powers vested in me by the last will of my late husband, J. G. Crews, duly admitted to probate in the county court of Randolph county, Missouri, on the 28th day of December, 1809, do by these presents grant, bargain and sell, convey and confirm, and give unto the said party of the second part, his heirs and assigns, the following," etc.

It was stipulated that the 2-acre tract of land in controversy was worth $700, and the value of the 40-acre tract of land was $2300; that Jid Crews had never married, but lived with his mother until her death. Mary E. Crews, widow of J. G. Crews, never remarried, and died in July, 1917. The 40-acre tract of land was a part of the real estate left by James G. Crews at his death.

The trial court, on the hearing of the evidence, found the facts as above stated, found the issues in favor of the defendant Jid Crews, adjudged that the title to the land in controversy be vested in fee simple in him, and that neither the plaintiffs nor the defendants Bena Hart and Leon Crews had any interest in the property. From that judgment the plaintiffs appealed.

I. The appellants first claim, as shown by the answer, that the executrix, after her discharge in 1873, had no power to convey the real estate or execute any of the authority conferred upon her as executrix, by the will. One of the deeds under consideration was made 34 years after her discharge, and the other one 44 years after her discharge.

A reference to the will set out above will show that clause 3 authorizes the widow to sell real estate as she might think best to finish paying debts of the testator.

The fourth clause provided that she might sell any of the "real estate undisposed of to pay debts and loan out the money or invest it in other real estate."

The sixth clause, after providing that sales might be made by the executrix publicly or privately as she thought best, proceeds:

"And I further desire that my said executrix may give to such of my children at such time as she may think proper, such of my property as she may think just and right."

A question for determination is whether the power vested in Mary E. Crews by the sixth clause of the will was official or personal; whether it pertained to and ended with her office as executrix, or was a personal trust which carried beyond her official character as executrix. This court, in the case of Donaldson v. Allen, 182 Mo. 626, 81 S. W. 1151, in an able opinion by Judge Marshall,...