Edgar v. Emerson

• Decision Date: 01 July 1911
• Citation: 139 S.W. 122,235 Mo. 552
• Parties: EDGAR v. EMERSON et al.
• Court: Missouri Supreme Court

139 S.W. 122

235 Mo. 552

EDGAR v. EMERSON et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

1. PARTIES (§ 43)—INTERVENTION—EFFECT.

Where an administrator with will annexed filed a suit to construe the will of testator, who gave his estate to his wife for life, with remainder to a brother in fee, and recognized that the estate of the widow of the deceased brother was interested in the question and made her unknown heirs parties defendants, and the widow's administrator filed a pleading reciting that it was filed by leave, and the court in the final decree recognized him as a party, he was a party, though there was no order admitting him to be a party.

2. APPEAL AND ERROR (§ 519)—RECORD— AGREED STATEMENT OF FACTS—EVIDENCE— BILL OF EXCEPTIONS—NECESSITY.

An agreed statement of facts, on which a case is submitted to the trial court, or the evidence, may only be brought up to the court on appeal by a bill of exceptions.

3. APPEAL AND ERROR (§ 907)—QUESTIONS REVIEWABLE—RECORD—ABSENCE OF BILL OF EXCEPTIONS.

Where the record contains no bill of exceptions, the court on defendant's appeal must presume that there were sufficient facts in the agreed statement of facts or evidence to justify the findings, and the review is confined to the petition and the decree.

4. PLEADING (§ 32)—WRITTEN INSTRUMENTS —LEGAL EFFECT.

The rule that documents which are mere evidence should be pleaded only by their legal effect does not apply to a suit in equity, the purpose of which is to obtain a judicial interpretation of an instrument, and in such a case the instrument is properly copied into a petition, and forms a part thereof.

5. WILLS (§ 616)—CONSTRUCTION—ESTATES ACQUIRED.

Testator gave all his property to his wife for life, with power to sell, and gave what was left at her death for use to pay special legacies, and the remainder in fee to a brother. The wife did not exercise the power of sale. Held, that the wife acquired a life estate, with the right to the income for life, and on her death the property must be used to pay the special legacies, and the balance became the property of the brother in fee, and on his death before testator's wife the brother's wife took the property as provided by his will, but income accrued before the death of the life tenant passed at her death to her administrator.

Error to Circuit Court, Iron County.

Action by Wm. E. Edgar, administrator de bonis non, with will annexed, of John W. Emerson, against Stephen E. Emerson and others, in which Arthur Huff, administrator of Hattie Emerson, deceased, appeared as a party defendant. There was a judgment for plaintiff construing the will of decedent, and defendant Huff brings error. Affirmed.

J. H. Raney and K. C. Weber, for plaintiff in error. Martin L. Clardy and Silver & Dumm (White, Mabie & Conkey and John A. Irrmann, of counsel), for defendant in error. Edw. A. Rozier, for certain defendants.

VALLIANT, J.

Plaintiff, Wm. E. Edgar, administrator d. b. n., with the will annexed, of the estate of John W. Emerson, deceased, filed this suit for the purpose of obtaining a judicial construction of the will. The defendants named in the petition are the brothers and sisters, the half brothers and sisters, and nieces of the testator, certain legatees named in the will, and the unknown heirs of Hattie Emerson, deceased, who was the widow of George F. Emerson, deceased, who was a brother of the testator.

The testator left a considerable estate in Iron county. He had no child, and by the terms of his will he left his whole estate to his wife, Sarah M. Emerson, for life, remainder in fee to his brother, George F. Emerson. Sarah, the widow, qualified as executrix and assumed the administration of the estate. After the death of the testator, George F. Emerson, the remainderman, died, leaving no child, but leaving his widow, Hattie Emerson, who has since died. After the death of George F. Emerson, Sarah M., the widow of testator, died, without having made final settlement of the estate, and thereupon the plaintiff, Wm. R. Edgar, was appointed administrator d. b. n., with the will annexed. After this suit had been pending for a while, Arthur Huff filed a petition in the cause, showing that he had been appointed by the probate court of Iron county administrator of the estate of Harriet Emerson (called in the plaintiff's petition Hattie Emerson), deceased, late widow of George E. Emerson, and asking to be made a party. After that he filed a pleading, which recites on its face that it is filed by permission of the court, in which he states that George F. Emerson died, leaving a will in which all his property, including his interest in the estate of John W. Emerson, was given to his widow, Harriet, and that Harriet had since died, and the pleader, Huff, had been duly appointed administrator of her estate by the probate court of Iron county. The pleading concludes with a prayer that all the estate now in the hands of the plaintiff, administrator d. b. n., be decreed to belong to Huff, administrator, and that plaintiff in his final settlement turn the whole estate over to him. All of the defendants were nonresidents and were brought in by publication; one of them being a minor, a guardian ad litem was appointed for her, and an answer, in the usual form of a minor by her guardian ad litem, was filed. The defendant Hulda E. Kirby entered her appearance, but filed no answer. The only pleadings filed in the case were the plaintiff's petition, the pleading of Huff, administrator of Harriet Emerson, and the answer of the minor, by her guardian ad litem.

The cause was submitted to ...