Ernshaw v. Smith

• Decision Date: 18 February 1928
• Docket Number: 26388
• Citation: 2 S.W.2d 803
• Parties: ERNSHAW v. SMITH
• Court: Missouri Supreme Court

2 S.W.2d 803

ERNSHAW v. SMITH

No. 26388

Supreme Court of Missouri, Second Division

February 18, 1928

Harry Clymer, of Steelville, for appellant.

J. R Kirkham, of Dixon, and Johnston & Rinehart, of Rolla, for respondent.

OPINION

HIGBEE, C.

This is an action to determine title to certain lands in Pulaski county, Mo.

John A Smith was the common source of title. He died testate in August, 1922. His will, duly admitted to probate, disposed of all his property. W. H. Smith, the respondent, is the chief beneficiary. Rebecca E. Stroup is a daughter of the testator. Paragraph 4 of the will reads:

'I devise and bequeath to Rebecca E. Stroup a life interest in and to the farm known as the Earnshaw farm (96 acres about) that it is my will that the said Rebecca E. Stroup have and hold during her natural life all of the farm above named (the Earnshaw Farm located on East side of Gasconade River also in Sec. 34 or 35, in Twp. 37 of R. 11) and after the death of the said Rebecca E. Stroup it is my will that the Earnshaw farm be taken charge of by my grandson, W. H. Smith and sold and the proceeds from the sale thereof be equally divided between the grandchildren that I may then having living, and it is my will that said land be sold as soon as the said W H. Smith can conveniently sell same and that he divide equally the money he receives from the sale of said land between the grandchildren that I may have living at that time and it is further my will that if for any reason the said W. H. Smith cannot or will not sell said land as herein desired by me, then and in that event I give and bequeath after the death of Rebecca E. Stroup to my grandchildren that may survive her, the land and farm known as the Earnshaw farm, to be held and enjoyed by them equally and their heirs forever.'

Testator was survived by ten grandchildren, including plaintiff and defendant. Their parents were dead. Each of the grandchildren except the plaintiff and one other is specifically mentioned in the will; seven are given $ 1 each.

The point is made by appellant that, since all the other grandchildren are specifically named, and his name is omitted, the testator died intestate as to him, notwithstanding the provisions of paragraph 4 of the will, above set forth.

We have read the cases cited by appellant on this point, and are constrained to hold against him on that point. Section 514, R. S. 1919, reads:

'If any person make his last will, and die,...