Doneghy v. Robinson

• Decision Date: 30 December 1918
• Docket Number: No. 19506.,19506.
• Citation: 210 S.W. 655
• Parties: DONEGHY et al. v. ROBINSON.
• Court: Missouri Supreme Court

210 S.W. 655

DONEGHY et al. v. ROBINSON.

No. 19506.

Supreme Court of Missouri, Division No. 1.

December 30, 1918.

Rehearing Denied March 1, 1919.

Motion to Transfer to Court in Banc Overruled March 28, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by A. Doneghy and others against Frank G. Robinson. Judgment for defendant, and plaintiffs appeal. Affirmed.

Higbee & Mills, of Lancaster, and Campbell & Ellison and A. Doneghy, all of Kirksville, for appellants.

John H. Lucas and Ingraham, Guthrie & Durham, all of Kansas City, for respondent.

BROWN, C.

Ejectment instituted August, 1914, in the Jackson circuit court to recover 352 acres of land in that county. The ouster is laid as of August 1, 1914.

The defendants answered (1) by general denial; (2) a plea of the statutes of limitations apparently intended to cover all the provisions of sections 1879, 1881, and 1884 of the Revised Statutes 1909; (3) a plea of estoppel by certain matters in pais; and (4) a count in the nature of a counterclaim to quiet and adjudge title under the provisions of section 2535 of the same Statutes. The particulars so specially pleaded may be set out more fully if necessary.

The plaintiffs replied, admitting their claim of title as remaindermen under the Doneghy will, which, with the proceedings and conveyances thereunder, were fully set out, and denying all the controverted allegations of the answer.

The land in question lies near the southwest corner of Jackson county, about 18 miles south of Kansas City as its limits existed in 1865, 22 miles southwesterly from Independence, and 2 miles east of the Kansas-Missouri state line. It is a part of a tract of 500 acres owned and occupied as a family residence at the time of his death by James Doneghy, who is the common source of title. The family consisted of himself, his wife, Kate S. Doneghy, and their six sons, the eldest of whom was then but 12 years of age. All of these are now living. One of them, A. Doneghy, conveyed his interest to his wife, a coplaintiff, while two of the others have, since the death of their mother, conveyed their interests to A. Doneghy and the two other female plaintiffs. It is therefore correct to say that four of these sons and the representatives in title of the other two are the plaintiffs in this suit.

On October 23, 1860, James Doneghy, with his own hand, wrote and properly executed his will in words and figures following:

"I make this my last will and testament.

"I first desire all of my debts paid out of the proceeds of my personal estate or as much of it as will satisfy the debts. I wish my land to remain unsold until my oldest child living shall become twenty-one years of age or should my wife prefer living near a town in this or any other state the land may be sold provided the money for which it is sold shall be invested in other property or bank stock the interest of which shall be for the support of my wife and children. My wife is to have the management of my property but shall not divide any between the children until the oldest living child shall become twenty-one years of age, she may then divide it as she thinks best, or not at all if she desires it. I do not mean by this that she shall not give any of them a horse, cow or hogs or furniture, but has reference to my land and negroes. She may sell at any time any of my negroes and invest the money in other property or stocks or loan it out using only the interest. Should she marry at any time all of my property shall be divided equally between my children except one-third, which shall be allotted to my wife to have the use of during her life, then to be divided between the living children. "Guardians shall be appointed over my children by the court after she becomes another man's wife, and shall be sent to such schools as their guardians may choose. Should my children all die my wife is still to have the use and management of my property as long as she remains my widow then she shall have one-third allotted to her to have as before mentioned, the remaining two-thirds shall be given to my brother's (John T. Doneghy) children, should he have any, if not, it shall belong to him. The other third after my wife's death shall be divided between Amelia Irving's and Lucinda Caldwell's (my sister's) children.

"I make my wife Kate S. Doneghy my executor with full power to carry out this my last will and testament with a request that she shall not be required to give security for the faithful performance of it. In testimony of which I have hereunto set my hand and affixed my seal Oct. 23rd, 1860.

                                      "Jas. Doneghy. [Seal.]"
                

This was something more than a year before his youngest child was born. From this time on the lives of the Doneghys became inextricably tangled with great historical events in the little community where they resided, of which events we take judicial notice. Much of it is indicated by the statement that the home was near the Kansas-Missouri border, where the seed was sown from which a crop of trouble was to be harvested during the succeeding years. The Civil War began early in the next year, and this region, as appears in the evidence, became the theater of bitter border warfare between those whom a Missouri historian has designated as "Jayhawkers" and "Bushwhackers." Mr. Doneghy entered the Confederate army in 1861, leaving his family in the home on this tract of land. On October 23, 1862, the house was burned by the federal soldiers, leaving them homeless, and only a few days afterward (November 5, 1862) he was killed in battle, leaving this will in force. When the house was burned Mrs. Doneghy took her children to a neighbor's house, where she remained three days, and then found a little home in the same neighborhood, in which she and her children resided until the following August, when General Ewing, the military commandant of the district, issued the famous General Order No. 11, which drove her away. She went to Kentucky, where she remained, with her children, until the revocation of the order in the following year. In the meantime the will had been admitted to probate in Jackson county and she had qualified as executrix: She prepared her inventory, which was verified in Kentucky on May 4, 1864. It included five slaves, who had been removed from this state—two to Arkansas and three to Kentucky. These do not appear in any form in her settlements subsequently made. During the two years of border warfare that had preceded her departure from the state both the schools and churches had been eliminated from the old neighborhood, and upon her return frail Kentucky she leased a small farm near Independence, which was then not only the county seat but the principal and largest town in Jackson county, and contained excellent private schools as well as public schools in the vicinity, one of which was in the neighborhood of the farm upon which she moved with her children. She borrowed a horse and oxen with which she cultivated the place, and sent the children to school. While there she received some money from her father's estate in Kentucky, but the amount does not appear. While she was living on this rented place she sold the tract of 500 acres, which includes the land in controversy, to John S. Anderson, of Belmont county, Ohio, for $8,000, and executed the conveyance to him the effect of which is in dispute. It is dated the 18th day of December, 1865, and in its introductory part designates the grantor as "Kate S. Doneghy, executrix of the last will and testament of James Doneghy, deceased." In other respects it is a general warranty deed with the usual covenant of warranty. The defendant claims through this deed. Upon its execution and the payment of the purchase price the executrix charged the entire amount of $8,000 to herself as executrix, and used it all, together with the entire proceeds of the personal estate, in the payment of debts which were duly allowed by the probate court, leaving a balance unpaid of $761.50 as shown by her final settlement duly approved by the Jackson county probate court at the February term 1872. This balance she paid out of her own funds. We agree with the finding of the circuit court that the sale was a fair one, realizing the full market value of the land at the time at which it was made. This does not seem to be seriously disputed. Although there was some evidence that it was worth more, the difference is not sufficient to effect the question upon which the case stands.

About four years after the sale to Anderson, Mrs. Doneghy purchased a farm of 120 acres near Independence, for which she paid $40 per acre, and within about a year sold it at a profit of $2,400, and purchased ac house in the town, into which she moved, and there continued the education of the children, the youngest of whom was about 10 years old, until 1875, when she sold the house and removed to Macon county, where she resided until her death, which occurred June 24, 1914, after which this suit was promptly instituted. She never remarried. No dower was ever assigned her.

1. It sufficiently appears from the foregoing statement that both parties claim title in fee to the land in question under the will of James Doneghy, which we have set out in full. Its construction is the principal question with which we have to deal. The plaintiffs contend that it gave Mrs. Doneghy, now deceased, an estate for her own life (subject to be determined by her remarriage, which never occurred), with remainder to her children, who are all represented by them, in fee. The defendant asserts that the will gave the land to her in fee (subject only to be determined by her remarriage) and that the same title passed to Anderson by her conveyance. They further contend that if the estate she acquired under the will was a life estate only, the deed to Anderson operated as an execution of the power of sale conferred on her by the will, so that the...