Drew v. Platt

• Decision Date: 21 December 1931
• Docket Number: 30003
• Citation: 44 S.W.2d 623,329 Mo. 442
• Parties: George J. Drew, Anne Lewis Drew, Alexander C. Drew, Dorothea Barnett Armes and Katherine H. Drew, Appellants, v. Ann Drew Platt, Margaret Drew Wilson, Emma Drew Catlin, Francis A. Drew, Elizabeth Drew Brown, Mary Ann Drew, William McRee Drew, Tankerville J. Drew and Dorothy Drew Green
• Court: Missouri Supreme Court

44 S.W.2d 623

329 Mo. 442

George J. Drew, Anne Lewis Drew, Alexander C. Drew, Dorothea Barnett Armes and Katherine H. Drew, Appellants, v. Ann Drew Platt, Margaret Drew Wilson, Emma Drew Catlin, Francis A. Drew, Elizabeth Drew Brown, Mary Ann Drew, William McRee Drew, Tankerville J. Drew and Dorothy Drew Green

No. 30003

Supreme Court of Missouri

December 21, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Transferred to St. Louis Court of Appeals.

Abbott Fauntleroy, Cullen & Edwards for appellants.

Leahy Saunders & Walther and J. L. London for respondents.

Ferguson C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This suit involves the ownership of an undivided one-third interest in "a certain leasehold for an unexpired term of years of real estate and improvements at the northwest corner of Jefferson Avenue and Chestnut streets" in the city of St. Louis. The pleadings describe the real estate covered by the lease in the general terms and manner above quoted, followed by a more particular description of the property. The term of the lease is not set out and the lease was not introduced in evidence, nor does the evidence disclose the duration thereof. By the will of George I. Barnett, deceased, probated in the Probate Court of the City of St. Louis, on January 4, 1899, the leasehold, an undivided one-third interest in which is in controversy, was bequeathed to his three children, Sarah L. Drew, Emma L. Drew and Absolom J. Barnett, each taking an undivided one-third interest therein. The plaintiffs are all the children and heirs at law of Sarah L. Drew, deceased, and are conceded to be the owners of the undivided one-third interest in the leasehold which was bequeathed to their mother. Emma L. Drew sister of Sarah L. Drew and owner of one undivided one-third interest in said leasehold, died testate on May 4, 1911. Her will was admitted to probate in the probate court of the City of St. Louis on the 15th day of May, 1911. The defendants are all the children and heirs at law of the said Emma L. Drew, deceased. Under Item 5 of the will of Emma L. Drew, as originally written, the defendants take and are the owners of this undivided one-third interest in the leasehold. However, basing their claim upon an alteration, amendment and interlineation appearing in Item 5 of the will which if considered and taken as a part of the will probated such undivided one-third interest in the leasehold was bequeathed to their mother Sarah L. Drew, plaintiffs claim to be the owners thereof. Counsel for plaintiffs stated to the trial court: "The dispute is over the one-third interest which was conveyed [by the will of George I. Barnett] to Emma L. Drew. The plaintiffs claim to be the owners of this one-third interest and the defendants claim to be the owners thereof. The matter submitted to the court to determine is whether the plaintiffs or the defendants are the owners of it." Title to the real estate covered by the lease is not involved. The cause was tried in the circuit court in the City of St. Louis. The court found and decreed that under the terms of Item 5 of the will of their mother, Emma L. Drew, the defendants were the owners of the undivided one-third interest in the leasehold. Plaintiffs' appeal was granted to this court.

Our jurisdiction of the appeal is not questioned. "Counsel on each side apparently assume that we have jurisdiction of this appeal, but jurisdiction 'can neither be waived nor conferred by the consent of parties.' Whether the question is raised by counsel or not it is our duty to determine from the record in each case whether or not we have jurisdiction." [Lewellen v. Lewellen, 319 Mo. 854, 5 S.W.2d 4; Devoto v. Devoto (Mo. Sup.), 326 Mo. 511, 31 S.W.2d 805; Cunningham v. Cunningham, 325 Mo. 1161, 30 S.W.2d 63.]

We assume that the appeal was granted to this court on the theory that title to real estate is involved. "Is a leasehold for a term of years real estate? If so the title to real estate is involved." [Springfield Southwestern Railway Co. v. Schweitzer, 246 Mo. 122, 151 S.W. 128.] In 35 Corpus Juris, at page 970, it is stated: "Except in so far as the common-law rules may have been modified by statute, terms for years, however long, are chattels real, falling within the classification of personal property." In the Schweitzer case, supra, this court says: "It must be conceded that if a term of years is real estate, it becomes such either by force of common law or by virtue of some statute. Now, at common law a term for years created by a lease was a chattel -- a chattel real to be sure, but still a chattel. At the tenant's death such leasehold became an asset in the hands of his administrator and did not go to his heirs. At common law the term 'real estate' did not include a lease (cases cited)." The opinion next refers to our statutes "defining the term 'real estate' in connection with some particular subject-matter and for some particular purpose." The sections of our statutes enumerated (we use section numbers found in Revised Statutes 1929) and the subjects to which they relate are: 1141, Judgments; 1173-1174, Executions; 3052, Conveyances; 4476, Crime and Punishments; 318, Dower; 655, Construction of Statutes; and 9977, Taxation and Revenue. The court then says: "It is enough to say that in ...