Action by William A. Dudgeon and others against May Hackley and others. From a judgment for defendants, plaintiffs appeal. Affirmed.
With a very few verbal corrections we adopt the statement of facts as found in the divisional opinion. This statement reads:
"The plaintiffs are the sole surviving heirs of Alexander Dudgeon, Sr., deceased, who died in 1882, after having devised 267 acres of land to his son, Alexander Dudgeon, Jr., for life, with remainder to the heirs of his body, and charging certain advancements against the land devised to Alexander Dudgeon, Jr., and another devisee. The other heirs brought an action in March, 1883, to determine and enforce the amount thus payable, so as to equalize themselves. Such proceedings were had in that suit as resulted in a decree of the circuit court, affirmed by this court, charging the sum of $3,737.50 as an equitable lien against the said 267-acre tract devised as aforesaid. A special execution was issued for the enforcement of that judgment, whereunder the property so devised to Alexander Dudgeon, Jr., was sold, and he became the purchaser at such sale for the sum $4,492.80, being the amount of the aforesaid lien and costs accrued in its enforcement. In order to provide the purchase money the said Alexander Dudgeon, Jr., borrowed $4,800 and secured it by his deed of trust executed upon said 267 acres. The petition in the present case alleges: That by reason of these premises the said Alexander Dudgeon, Jr., acquired the legal title to the said tract of land, subject to the purchase mortgage, in trust, for the benefit of the contingent remainderman, to wit, the heirs of his body, as provided in said will, and in default of such heirs, for the benefit of plaintiffs as reversioners. That
in June, 1891, said Alexander Dudgeon, Jr., borrowed $5,236 and executed his deed of trust to secure the same upon the 267-acre tract aforesaid, and used the money thus acquired to pay off and discharge the prior mortgage given by him on said land. That on the 3d of December, 1904, the said Alexander Dudgeon, Jr., conveyed a part of said tract, to wit, 107 acres, and received $5,000 from the purchaser, and applied this sum in part to pay off and discharge in part the aforesaid mortgage, leaving a balance due of about $2,900. That the holder of said indebtedness assigned it to the defendant Joseph Megraw. That Alexander Dudgeon, Jr., and his wife died — the wife in August, 1910, and the husband in June, 1911, without heirs of their body surviving. That said Alexander Dudgeon in his lifetime duly made and published his will, which was admitted to probate after his death, whereby he devised the unsold portion of the 267 acres, to wit, 160 acres, to his nephew, May Karl Hackley, and nominated Paul Hackley to be the executor of his will, both of whom are alleged to claim some interest in said land. The petition then charges that May Hackley took the legal title to said tract of land, to wit, 160 acres, subject to the balance of the debt secured by mortgage thereon, and now holds the same in trust for the benefit of these plaintiffs, who are reversioners thereof in default of any heirs of the body of Alexander Dudgeon, Jr., deceased, and who are willing and ready to contribute to the estate of Alexander Dudgeon, Jr., or his devisee, their just part of the purchase price of said land paid by the said Alexander Dudgeon, Jr. The plaintiffs ask for relief on the equity side of the court, and for a decree determining the respective rights of the plaintiffs and defendants May Hackley, Paul Hackley, and Joseph Megraw, and for general relief.
"May Hackley answered by his guardian ad litem, admitting in substance the allegations of the petition which related to heirship, the devise to Alexander Dudgeon, Jr., the amount of the advancements charged against Alexander Dudgeon, Jr., and enforced as an equitable lien against said 267 acres, the death of the said Alexander Dudgeon, Jr., and his wife, the devise by him to defendant May Hackley, and the existence of an unpaid balance of the mortgage on the land. The defendants further pleaded the statute of 10 years' limitation, and that plaintiffs have been guilty of laches. On the trial, the evidence disclosed that the will of Alexander Dudgeon, Sr., who died in 1882, contained the following provisions:
"`Second. I will that my property be equally divided amongst my children, viz., Archie Dinwiddie, my grandson, who is entitled to one share; Bernard F. Dudgeon, Martha Settle, Alexander Dudgeon, William A. Dudgeon and John Dudgeon, after their paying to my estate what I have them charged with on my cash book.
"`I give to my son, John Dudgeon, 80 acres the E. ½, etc., and to my son, Alexander Dudgeon, the home place containing 267 acres as follows, 107 acres, E. part, etc., to my grandson Archie Dinwiddie, 70 acres S. part, etc. My son, Alexander Dudgeon, Jr., and my grandson, Archie Dinwiddie, received larger advancements than the rest of my children, including the land I have given them in my will and they are to advance to the other children to make all equal.
"`The 267 acres I have given to my son, Alexander Dudgeon, is to him and his wife, during their lifetime and at their death to my son Alexander Dudgeon's bodily heirs.'
"There was other evidence sustaining the allegations of fact made in the petition, and it was also shown that prior to the execution of a mortgage upon the tract of 267 acres purchased by Alexander Dudgeon, Jr., at the sale made by the sheriff, he, Alexander Dudgeon, Jr., obtained a quitclaim deed from all the present plaintiffs, except Archie F. Dinwiddie, and applied for a farm loan on said land, rating it at about $14,000, and that the original mortgage was given to secure that loan. The trial court dismissed the bill, and plaintiff Dinwiddie appealed."
The foregoing statements suggest that this court had ruled upon the construction to be given to the will of Alexander Dudgeon, Sr. Further facts should be stated. This court did affirm the judgment of the Howard county circuit court in the construction of this will. Dudgeon v. Dudgeon, 87 Mo. 218. It should be added that the appellant Dinwiddie in this case was a party to that suit, and was the appellant in that suit. It should be further stated that the only serious question upon appeal in that case was whether or not the charge against the 267 acres of land mentioned in the will of Alexander Dudgeon, Sr., should be limited as a charge against the life estate of Alexander Dudgeon, Jr., or whether it should be construed as a charge against the land, and thereby against all the estates and interests therein. The appellant Dinwiddie, in this case, was the appellant in that case, and was trying to protect his prospective reversionary interest by urging that the charge provided for in the will should be declared only as against the life estate, and against no other interests in that 267 acres of land. This court denied the contention of Dinwiddie, and said that all interests in this land should be sold to carry out the intent of the will maker. All interests were sold and Alexander Dudgeon, Jr., became the purchaser at execution sale. This sufficiently states the case.
W. M. Dinwiddie, of Columbia, and E. W. Hinton, of Chicago, Ill., for appellants. A. W. Walker, of Fayette, and W. M. Williams, of Boonville, for respondents.
GRAVES, J. (after stating the facts as above).
When clearly considered, this case narrows down to a very small compass. In Dudgeon v. Dudgeon, 87 Mo. 218, this court construed the will of Alexander Dudgeon, Sr. We then said:
"The plaintiffs in this case are four of the children of the decedent, and allege substantially in their petition that the total value of the estate, including the value of the land devised and advancements made by deceased in his lifetime, amounted to the sum of $19,425; that, to make each one of the six devisees equal, each one would be entitled to the sum of $3,237.50; that each one of the plaintiffs had received by way of advancement much less than the above amount; and that defendant Alexander, adding the value of the land devised to the advancement made him, would receive the sum of $3,737.50 in excess of said amount of $3,237.50. The object of the suit is to charge this excess upon the 267 acres of land devised to Alexander Dudgeon and wife during their lives, and after their death to the bodily heirs of said Alexander; and the petition concludes with a prayer asking that said excess be decreed to be a charge upon the land so devised and that it be sold for its payment. The court made a decree in conformity with the prayer, the propriety of which is challenged by the appeal to this court.
"It is conceded that, to make the children and
devisees equal sharers in the estate of the decedent, each one should receive the sum of $3,237.50. It is also conceded that each one of the plaintiffs had not received this sum, but a much less sum, by way of advancement. It is also conceded that the value of the 267 acres of land devised, when added to the advancement of $300, made to Alexander in his father's lifetime, would exceed the amount of $3,237.50 in the sum of $3,737.50. But it is contended that, inasmuch as Alexander, the son, only took a life estate, with remainder in fee to his bodily heirs after his death, the said excess of $3,737.50 could only be charged against the life estate, and not against the fee. Such a construction as is contended for would not execute the manifest purpose of the testator, but would, on the contrary, defeat it. It is clearly shown by the second clause of the will that the testator intended that all of his children should share equally in the distribution of his estate, and that no one of them should have any advantage...
