Crews v. Maupin
| Decision Date | 15 December 1920 |
| Parties | WILLIAM M. CREWS et al. v. C. T. MAUPIN et al.; and WILLIAM Y. MILLER et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. -- Hon. Ernest S. Gantt, Special Judge.
Affirmed.
Paul P Prosser and Alex H. Walker for appellants.
(1) The court erred in finding and decreeing that the land in controversy, subject to the dower and homestead rights of the widow of testator, was devised by the will and codicil "to Robert D. Maupin and Joseph C. Maupin in equal shares as tenants in common for life, with remainder at their death to the respective children born of their bodies in fee simple," thereby giving to said Robert D. and Joseph C and to each of them, and to the children born of their bodies an unequal and greater share in testator's estate than to his other children, contrary to the express terms of said will and intent of said testator. This issue must be determined by the terms and provisions of testators will fairly construed. (a) "The intention of the testator must prevail unless contrary to some positive rule of law." Borland on Wills, p. 296; Bredell v Collier, 40 Mo. 321; Shumate v. Bailey, 110 Mo. 411; Yocum v. Siler, 160 Mo. 281; Peugnet v. Berthold, 183 Mo. 61. (b) "The intention must be gathered from the whole will and not from detached portions thereof." Borland on Wills, p. 298; Erwin v. Henry, 5 Mo. 469; Carr v. Dings, 58 Mo. 406; Chew v. Keller, 100 Mo. 362; Grace v. Perry, 197 Mo. 550. (c) "A will and its codicils are to be construed together." Borland on Wills, p. 299; Wells v. Fuchs, 226 Mo. 97. "The codicil is controlling only to the extent necessary to give effect to its provisions." Borland on Wills, p. 300. (d) "A word or a phrase occurring more than once in a will is presumed always to be used in the same sense." Borland on Wills, p. 310. (e) "Where plainly required, words may be supplied or omitted, and words or sentences transposed." Nichols v. Boswell, 103 Mo. 151; Thompson v. Thompson, 115 Mo. 56; White v. McCracken, 87 Mo.App. 262. (2) The court erred in finding that certain of the grandchildren of the testator, remaindermen in the lands in dispute, were barred by the Statutes of Limitation and that their interests had vested in plaintiffs. "The possession of a life tenant cannot be adverse to the remainderman." Sutton v. Casseleggi, 77 Mo. 397; Heckescher v. Cooper, 203 Mo. 293; Hunnewell v. Burchett, 152 Mo. 611; Bowman v. Lee, 48 Mo. 335; Fugate v. Pierce, 49 Mo. 441; Wilkerson v. Ellers, 114 Mo. 245; Nelso v. Brodhack, 44 Mo. 596; Charles v. Pickens, 214 Mo. 213. McCune v. Goodwillie, 205 Mo. 339; Coberly v. Coberly, 189 Mo. 16; Stevenson v. Black, 168 Mo. 549; Hunnewell v. Adams, 153 Mo. 440; Johnson v. Prewitt, 32 Mo. 553; Barber v. Henderson, 156 Mo. 566; Rothwell v. Jamison, 147 Mo. 601; Comstock v. Eastwood, 108 Mo. 41; Hecksecker v. Cooper, 203 Mo. 278.
R. M. Bagby and J. H. Denny for respondents.
(1) Appellants acquired no interest in the land in controversy under the will, for the simple reason that this land was a part of testator's home place, which the codicil devised to Robert D. Maupin and Joseph C. Maupin. (2) If the codicil to the will did not create a fee simple in the two sons, then, taken in connection with the whole will, an estate tail was created in them, which was by statute cast into a life estate in the sons with remainder in fee to their respective children. R. S. 1909, sec. 2872-2874; King v. Thies, 272 Mo. 416. (3) The grandchildren of testator took per stirpes the shares of their respective parents, and not the whole per capita. 40 Cyc. 1494; Preston v. Brant, 96 Mo. 552; 2 Jarman on Wills, p. 619, note 18; Romjue v. Randolph, 166 Mo.App. 97; 2 Underhill on Wills, p. 798, sec. 599. (4) The agreed statement admits that Mary E. Crews, and the plaintiffs, her heirs at law, have been in the open, notorious, exclusive possession of said land, claiming ownership and paying all taxes from the 18th day of September, 1882, up to the present time, and that none of the defendants or any one under whom they claim or might claim have paid any taxes on said land or begun any action for the possession of said land prior to the filing of their separate answer in May, 1917. Every element necessary to confer title by adverse possession is here admitted. Fugate v. Pierce, 49 Mo. 441; Bowman v. Lee, 48 Mo. 335. Claim of ownership gives the possession an adverse character. Stevenson v. Black, 168 Mo. 549. The payment of taxes is evidence of the existence of a claim of title by adverse possession. Lumber Co. v. Craig, 154 S.W. 73; Stone v. Perkins, 217 Mo. 586; 2 Corpus Juris, p. 271, sec. 605. It is enough that possession be under a claim of title, to clothe it with the character of an adverse holding, and to give it efficacy as a defense, when of sufficient duration to be a bar. Tyler on Ejectment & Adverse Enjoyment, p. 683. (4) So that if the will did create an estate tail, or a life estate, in Parthana T. Miller, whatever rights or cause of action, if any, the appellants ever had, accrued on her death on the 20th day of June, 1903, and was barred by the Statute of Limitations in ten years thereafter, and long before the beginning of this suit. King v. Thies, 272 Mo. 416; Sec. 1879, R. S. 1909. (5) The children of testator made a division and equalization after the death of the widow, and Parthana T. Miller was paid her share in money and the land set apart to Mary E. Crews and Joseph C. Maupin, and subsequently divided by voluntary partition between the latter two. This equalization and partition was fair and just, and is binding on the remaindermen. Accord v. Beatty, 244 Mo. 126; King v. Thies, 272 Mo. 422; Stockwell v. Stockwell, 262 Mo. 683; Sparks v. Clay, 185 Mo. 508. (6) Appellants are bound by the covenants in their mother's warranty deed, and are estopped to assert any interest in the land as it is admitted that they received from her estate property of equal or greater value than the value of the interest now asserted in the land. R. S. 1909, sec. 2793 and 2875; Rumsey v. Otis, 133 Mo. 85; Foote v Clark, 102 Mo. 395; State ex rel. v. Burns, 129 Mo.App. 474; Talbert v. Grist, 198 Mo.App. 492. (7) The deeds made by the testator after the will was made, and the operation of law after his death in appropriating 46 acres of the home place to pay his debts and setting off the remainder as a homestead to his widow, exempted the whole estate from the operation of the will, and the residue of the home place on the death of the widow became intestate property, and passed in fee by the warranty deeds made by the children of testator. 40 Cyc. 1207, 1210, 1211; 30 Am. & Eng. Ency. law (2 Ed.), 652, 655; Cozzens v. Jamison, 12 Mo.App. 452; Shepherd v. Fisher, 206 Mo. 245.
RAILEY, C. White and Mozely, CC., concur.
This is an action at law, commenced by plaintiffs as the children and grandchildren of Mary E. Crews, deceased, in the Circuit Court of Howard County, Missouri, on April 17, 1917, to quiet title to 50.19 acres of land in the southeast quarter of Section 13, Township 51, Range 17, located in said county, and more fully described in the petition. The suit was brought against the heirs at law of Robert D. Maupin, deceased, who are named in the petition as defendants; also against Joseph C. Maupin and his children, whose names are set out in the petition; also against the heirs at law of Perthana T. Miller, deceased, whose names are set out in said petition, and who are the only appellants in this cause, and are the only defendants who claim any interest in said land adversely to plaintiffs. The petition alleges that plaintiffs are the owners in fee of the real estate aforesaid, as tenants in common, according to their respective interests as alleged therein; that defendants claim some interest in said land adversely to plaintiffs, etc. The court is asked to ascertain and determine the respective interests, titles, etc., of the parties herein, etc.
The heirs at law of Perthana T. Miller, deceased, to-wit, William Y. Miller and wife, J. Earl Miller and wife, and Annie Crews and husband, filed their joint and separate answer, in which they set out the will and codicil thereto, of William M. Maupin, deceased, claim an interest in the real estate aforesaid, under said will and codicil, and likewise plead other matters which will be referred to hereafter.
Respondents filed a reply to the answer aforesaid, admitted certain allegations of the answer to be true, denied all other allegations therein, pleaded the ten-year Statute of Limitations as a bar to the claim of said defendants, as well as other matters, which will be considered later.
It appears from the record that the notes of the testimony taken by the court stenographer at the trial were burned with the court house at Moberly, and counsel for the respondents and appellants have agreed upon the material facts of the case, as follows:
William M. Maupin was the common source of title. William M. Maupin executed a will and testament on the 8th day of February 1871, and also executed a codicil thereto on the 4th day of August, 1873. At the date of said will and codicil, said William M. Maupin was the owner of 585.84 acres of land in Howard County, Missouri, a description of which is unnecessary. William M. Maupin died on the 13th day of September, 1879, and his said will and the codicil thereto was duly proven and admitted to probate in the Probate Court of Howard County, Missouri, on the 7th...
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