Dunbar v. Sims

• Citation: 222 S.W. 838,283 Mo. 356
• Decision Date: 04 June 1920
• Docket Number: No. 20817.,20817.
• Parties: DUNBAR et al. v. SIMS et al.
• Court: United States State Supreme Court of Missouri

222 S.W. 838

283 Mo. 356

DUNBAR et al. v. SIMS et al.

No. 20817.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Rehearing Denied June 25, 1920.

Appeal from Circuit Court, Ralls County; W. T. Ragland, Judge.

Action by Fannie Dunbar and others against Charles T. Sims and others. From judgment for defendants, plaintiffs appeal. Affirmed.

This action was brought in the circuit court of Rails county, Mo., for the partition of the real estate described in petition, and for an accounting of the rents, profits, and money alleged to have been received by defendants.

Silas E. Sims died in Balls county, Mo., in 1907, the owner of above-mentioned real estate, leaving a will. He left surviving him his widow, Mary E. Sims, and his children, Charles T. Sims, Enoch Sims, Luther Sims, George Edward Sims, Lee Roy Sims, Arch Sims, and Fannie Dunbar. Fannie Dunbar Lee Roy Sims, and George Edward Sims are plaintiffs herein, and Charles T. Sims, Enoch Sims, Luther Sims, and Arch Sims are defendants.

On March 25, 1909, plaintiff George E. Sims and wife executed and delivered to defendant Archie Sims their warranty deed for the expressed consideration of $800, conveying all their right, title, and interest in and to the real estate described in petition.

On February 10, 1909, plaintiff Lee Roy Sims and wife executed and delivered to defendant Charles T. Sims their quitclaim deed for the expressed consideration of $625 conveying all their right, title, and interest in said land.

On October 18, 1909, plaintiff Fannie Dunbar executed and delivered her warranty deed to defendant Archie Sims for the expressed consideration of $1,500, conveying to him all of her right, title, and interest in said land.

Afterwards, on July 2, 1910, said Mary E. Sims, under the power vested in her by the will of her husband, sold, by deed duly executed, a right of way 50 feet wide across said land for $3,500 to the Atlas Portland Cement Company, a corporation.

It appears from the evidence that neither of the plaintiffs herein received any part of said $3,500.

The widow, Mary E. Sims, died April 24, 1917.

The will of Silas E. Sims, was executed on the _____ day of February, 1907. It was offered in evidence, and contains five separate paragraphs. No. 1 provides for the payment of his debts, etc. Paragraph 2 gave to the widow absolutely all of his personal property, subject to the payment of his debts. Paragraph 4 named his wife, Mary E. Sims, as executrix, with the direction and request that she be not required to give bond. The third and fifth paragraphs read as follows:

"Item Third. I will and devise all of my real estate to my wife, Mary E. Sims, for and during her natural life, and at her death, I will and devise that all my real estate shall go and vest absolutely in fee, in my seven children, namely, Charles T. Sims, Enoch Sims, George Edward Sims, Luther Sims, Lee Roy Sims, Arch Sims, and Fannie Dunbar, equally share and share alike."

"Item Fifth. I will and direct that my said executrix, Mary E. Sims, shall have power, and I hereby give her power and authority to sell and convey any or all of my real estate as she may see fit and proper, and make good and perfect title to the same in fee simple to the purchaser and to make distribution of the proceeds of such sale among my said children and herself," etc.

The deeds heretofore mentioned from plaintiffs to Archie Sims and Charles T. Sims were duly recorded in Rails county, Mo.

On March 5, 1918, the trial court found the Issues in favor of defendants, and entered its decree accordingly. Plaintiffs in due time filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by them to this court.

Mahan, Smith & Mahan and M. L. Farres, all of Hannibal, for appellants.

J. O. Allison and T. E. Allison, both of New London, for respondents.

RAILEY, C. (after stating the facts as above).

1. There is practically no dispute over the facts in this case, as heretofore set out. It is contended by appellants that the children of testator acquired no, vested interest as remaindermen in the real estate aforesaid prior to the death of the widow, Mary E. Sims, on April 24, 1917, and that, by reason thereof, the plaintiffs had no interest in their father's estate, which was the subject of conveyance, at the time they executed their respective deeds to Archie and Charles T. Sims. This contention does not appeal to us as being sound. On the contrary, we are decidedly of the opinion that upon the death of testator in 1907 his widow, Mary E. Sims, by virtue of paragraphs 3 and 5 of the will aforesaid, became vested with a life estate in the real estate in controversy, with full power of disposition during her life, and that upon the death of testator in 1907 his seven children heretofore named became vested with an equitable estate and remainder subject to the life estate and power of disposition given to the widow aforesaid. Huntington Real Estate Co. v. Megaree, 217 S. W. 301 and following; Trigg v. Trigg, 192 S. W. loc. cit. 1014, and cases cited; Schneider v. Kloepple, 270 Mo. 389, 390, 193 S. W. 834; Priest v. McFarland, 262 Mo. 229, 171 S. W. 62; Tallent v. Fitzpatrick & Kaiser, 253 Mo. loc. cit. 13, 15, 161 S. W. 689; Burnet v. Burnet, 244 Mo. 491, 505-507, 148 S. W. 872; Gibson v. Gibson, 239 Mo. 490, 144 W. 770; Edgar v. Emerson, 235 Mo. 553, 560-562, 139 S. W. 122; Grace v. Perry, 197 Mo. loc. cit. 562, 95 S. W. 878, 7 Ann. Cas. 948.

In the absence of any provision in the will calling for a different construction, the foregoing authorities are conclusive against appellants as to the merits of this controversy. 2. It is insisted, however, by appellants, that the will as clearly expressed on its...