Cunningham v. Cunningham

• Decision Date: 09 July 1930
• Docket Number: No. 27976.,27976.
• Citation: 30 S.W.2d 63
• Parties: NORMAN A. CUNNINGHAM ET AL., Appellants, v. WILL CUNNINGHAM ET AL.
• Court: Missouri Supreme Court

30 S.W.2d 63

NORMAN A. CUNNINGHAM ET AL., Appellants, v. WILL CUNNINGHAM ET AL.

No. 27976.

Supreme Court of Missouri. Division One.

July 9, 1930.

Appeal from Knox Circuit Court. — Hon. James A. Cooley, Judge.

TRANSFERRED TO ST. LOUIS COURT OF APPEALS.

C.R. Fowler and C.D. Stewart for appellants.

J.C. Dorian and P.K. Gibbons for respondents.

SEDDON, C.

Plaintiffs (appellants here), on July 26, 1926, commenced this action in the Circuit Court of Knox County for the partition of 152 acres of land, situate in Section 9, Township 63, Range 11, in Knox County, Missouri, which land was owned by John H. Cunningham at the time of his death. The parties to the action (except the plaintiff, Robert H. Bertram, who claims as purchaser of the interest of Lyman Cunningham, a son of John H. Cunningham) are the children, and the heirs of a deceased child, of said John H. Cunningham, who died testate on June 13, 1919.

Several years prior to his death, John H. Cunningham made and published a will and a codicil thereto, which will and codicil were duly probated in the probate court of Knox County on July 14, 1919. By the first clause of the codicil to the will, the testator bequeathed to a son, Howard R. Cunningham, the sum of one thousand dollars. By the second clause of the codicil, the testator bequeathed to a son, Ira Arthur Cunningham (who is a party defendant herein, and who is referred to in the record as Arthur Cunningham), the sum of five thousand dollars. The second clause of the codicil reads as follows:

"Second. I will and bequeath to my son, Arthur Cunningham, the sum of five thousand dollars, conditionally, that is to say, if my said son, Arthur Cunningham, shall take good care of and provide for me and my said wife, Mary J. Cunningham, up to the date of the death of both me and my said wife, otherwise said bequest shall revert back to my estate.

"I further will and bequeath to my said son, Arthur Cunningham, any and all live stock which may belong to me or in which I may own a share or interest, on condition my said son, Arthur Cunningham, shall pay off and discharge all just debts and liabilities against my estate, including the burial expenses of myself and my said wife, Mary J. Cunningham, and the further condition that my said son, Arthur Cunningham, shall furnish a suitable home and take good care of my two grandchildren, to-wit: Vera Cunningham and Lloyd Cunningham, minor children of my said son, Howard R. Cunningham, until such time as said Howard R. Cunningham can provide a suitable home for them.

"I direct that all of the above conditions imposed on my said son, Arthur Cunningham, shall be complied with before he shall be entitled to either said five thousand dollars, or any share in any live stock.

"I further will and bequeath to my said son, Arthur Cunningham, all farming machinery, implements and tools on the same conditions as above set out."

The fourth clause of the codicil reads: "It is my will and desire that in event I depart this life before my said wife, Mary J. Cunningham, then, and in that event, no bequest herein shall be paid, and no division of my property shall be made, until after the death of my said wife, Mary J. Cunningham, and she is hereby bequeathed the absolute title in my entire estate for and during her natural life, but not given power to sell any real estate, being life estate only, bequeathed to my said wife."

The fifth clause of the codicil reads: "All the rest, residue and remainder of my estate and wherever situate, after the payment of the above bequests, I will and bequeath to my children, to-wit: Will Cunningham, Norman A. Cunningham, Elmer W. Cunningham, Robert S. Cunningham, Lyman Cunningham, Ira Arthur Cunningham, Howard R. Cunningham, and Nellie M. Killen, formerly Nellie M. Cunningham, share and share alike." [Above italics our own.]

Mary J. Cunningham, the widow of the testator, died on February 22, 1926, a few months prior to the commencement of the instant action.

The petition is conventional in form, alleging that plaintiffs and defendants are tenants in common and are the owners in fee of the described real estate; alleging the undivided share or interest of each of the several parties in and to the described real estate; and further alleging that, "owing to the great number of interests, said lands cannot be partitioned in kind without great prejudice to the parties in interest." The prayer of the petition is that the lands be ordered to be sold, and that the proceeds arising from such sale, after payment of the costs of suit, expenses of sale, and a reasonable attorney's fee, be distributed and partitioned among the parties according to their respective interests in the lands.

The defendant, Ira Arthur Cunningham, filed an answer, wherein he pleaded in haec verba the will and codicil of his father, John H. Cunningham, and alleged that said will and codicil were duly probated in the Probate Court of Knox County on July 14, 1919. The said defendant further alleged in his answer that, "by and under the terms of the will and testament of his father, John H. Cunningham, aforesaid, so admitted to probate in Knox County, Missouri, he became entitled to a specific interest in said estate, both personal and real, to the extent of the bequest made him in said will, and that he is entitled to said amount either in lands, or the proceeds thereof, before any partition or division of said estate shall be made to the other heirs or legatees of his said father; that there is not sufficient personal property to pay same; and that he has faithfully, on his part, carried out all the provisions and requirements so set out in his father's will, and that he is now entitled to the five thousand dollars being set aside to him before any further division is made of said estate." The answer of said defendant admits that the lands described in the petition are not susceptible of partition in kind; and the answer prays that said lands be ordered to be sold, and that, after payment of the pecuniary bequests under the will of said John H. Cunningham has been made out of the proceeds arising from the sale of said lands, the remainder of the proceeds be divided among the parties according to their respective interests as set forth in the petition.

The reply admits that the will and codicil of John H. Cunningham, deceased, as the same are pleaded in the answer of defendant, Ira Arthur Cunningham, were duly probated in the Probate Court of Knox County, and avers, in substance and effect, that defendant, Ira Arthur Cunningham, had failed to perform the conditions imposed upon the pecuniary bequest made to said defendant, under and by virtue of the provisions of the second clause of the codicil to the will of John H. Cunningham, deceased, and that, "by reason of defendant's failure to provide and care for the testator and his wife up to their deaths, and to pay all debts and liabilities against the said estate of the said testator, the defendant has forfeited all right of inheritance as a special bequest under the second paragraph of the said codicil to said will, and that all the property and money attempted to be bequeathed by said second paragraph of said codicil to the defendant reverts to the estate of said testator, and becomes the property of all the plaintiffs and defendants herein set out, after all just debts have been paid." The prayer of the reply is that the pecuniary bequest made in clause two of the codicil to the will of said John II. Cunningham, deceased, be declared void and for naught held.

The cause was tried to the court, without the aid of a jury, upon the issues defined by the pleadings, the actual controversy and the real issues tried being: (1) whether defendant, Ira Arthur Cunningham, had performed the conditions prescribed by the second clause of the codicil to the will of his father, John H. Cunningham, so as to entitle him to the bequest of five thousand dollars under the will of his father, and (2) whether such pecuniary bequest is chargeable against the real property of testator, devised under the residuary clause of the codicil, which real property is the subject of the instant action.

The trial court found the issues so tried and submitted in favor of the defendant, Ira Arthur Cunningham, and entered an interlocutory judgment in the cause, wherein the court found that, under and by virtue of the will and codicil of John H. Cunningham, deceased, Howard R. Cunningham is entitled to the specific bequest of one thousand dollars, and that defendant, Ira Arthur Cunningham, is entitled to the specific bequest of five thousand dollars, as alleged in his answer; that there are not sufficient personal assets belonging to the estate of John H. Cunningham, deceased, to pay the aforesaid pecuniary bequests to Howard R. Cunningham and Ira Arthur Cunningham, and that the payment of such pecuniary bequests will have to be provided for out of the sale of the real estate belonging to the said John H. Cunningham, deceased, said real estate being the subject of the instant action; that said real estate cannot be divided in kind without great prejudice to the owners thereof, and that it is to the best interests of plaintiffs and defendants that said lands be sold for cash, and that the net proceeds, after deducting costs, expenses and special bequests, be divided among the heirs of John H. Cunningham, deceased, as named in plaintiffs' petition; wherefore, it was ordered and adjudged by the court that there be partition of said real property, and that the same be sold for cash, at public vendue, by the Sheriff of Knox County, according to law, and that the proceeds of said sale, after deducting costs and expenses, be divided as follows: "To Ira A. Cunningham, five thousand dollars, bequest; to Howard R. Cunningham, one thousand dollars, bequest;" and that the remainder of the proceeds of said sale be divided among the parties to the action according to...