Fries v. Fries

• Decision Date: 19 December 1924
• Docket Number: No. 24605.,24605.
• Citation: 267 S.W. 116
• Parties: FRIES v. FRIES et al.
• Court: Missouri Supreme Court

267 S.W. 116

FRIES v. FRIES et al.

No. 24605.

Supreme Court of Missouri, Division No. 1.

December 19, 1924.

Appeal from St. Louis Circuit Robert W. Hall, Judge.

Suit by Christian Jacob Fries, Jr., against Amanda Elise Fries and others. From a judgment sustaining demurrers, plaintiff appeals. Affirmed.

W. B. & Ford W. Thompson, of St. Louis, for appellant.

Milton R. Stahl, of St. Louis, for respondents.

JAMES T. BLAIR, P. J.

Appellant brought this suit to establish his title to a one-third interest in certain real and personal property left by his father, who died testate in 1904, and for partition. The construction of the father's will is the decisive question. Demurrers were filed by the several respondents and sustained, and appellant refused to plead further. Judgment was rendered accordingly, and this appeal followed.

Appellant is the son of Christian Jacob Fries, Sr., by a first marriage. Respondents Amanda and Alma are daughters by a second marriage, and Amanda is the executrix of the will of her mother, Elise Fries, who died in October, 1921. Respondents William and Clara Henson are husband and wife and are grantees of Elise Fries and makers of certain notes in which appellant asserts an interest under the father's will. Strodtman is trustee in a deed of trust which secures the Henson notes.

The petition sets out the will of Christian Jacob Fries, Sr., which, so far as pertinent, reads as follows:

"First. I direct that my just debts and funeral expenses be paid out of my estate by my executrix hereinafter named.

"I give to my children, Christian Jacob Fries, Jr., Amanda Elise Fries, and Alma Mathilda Fries, each the sum of five dollars, to be paid to them respectively after my decease by my executrix.

"I give to my beloved wife, Elise Fries, all of my personal property of every description, to have and to hold to her for her own use and benefit, I also give her my said beloved wife, Elise Fries, all of my real estate, wherever the same may be situated, also to have and to hold unto her for her own use and benefit, to have full charge and control of all real estate, that she may at pleasure, dispose, sell and convey any and all real estate, if she desires to do so. "And I further direct, that after my decease, my said beloved wife, Elise Fries, may at her pleasure execute a will, and devide and provide for my said children all of real estate and personal property remaining.

"And lastly, I do appoint my said beloved wife, Elise Fries, as executrix of this my last will and testament, and I do direct that she shall not be required to give bond."

The petition alleges the father's estate included:

"Lots 8 and 9 in Harney Heights addition, and in block No. 5090 of the city of St. Louis, Mo.; said lots having an aggregate of 100 feet Court; on the north line of Geraldine avenue, by a depth northwardly of 135 feet."

It is further alleged that this realty was not needed to pay debts or expenses of administration and was received by the said widow under the terms of said will; "that long after final settlement of Christian; Sr.'s estate, to wit, on June 9, 1915, the widow, Elise, executed and delivered to Alma and Amanda Fries a warranty deed to all the above-described real estate, but reserved a life estate to herself"; that though the deed recited it was made for "one dollar and other valuable considerations," yet, in fact, there was no consideration but the deed was a gift; that it was recorded June 11, 1915; that June 15, 1921, Alma and Amanda reconveyed lot 8, above described, for "one dollar and love and affection"; this deed was recorded June 21, 1921; that on July 14, 1921, the widow, Elise, by a deed which is alleged to have been without consideration, conveyed to Amanda "the southern 21 feet of said lot 8," above described; that on the same day Elise conveyed to respondent Henson "the northern 29 feet of said lot 8" in consideration of a cash payment and the execution of a principal note for $2,000 and 33 notes for $20 each, secured by the deed of trust in which respondent Strodtman is trustee.

It is then alleged that October 8, 1921, Elise Fries died testate. Her will, in so far as it is material here, reads:

"First. I give and bequeath to my stepson, Christian Fries, the sum of one dollar ($1.00).

"Second. I give and bequeath to my daughter, Amanda Fries, all the furniture and furnishings in my house, No. 2539 Geraldine avenue, St. Louis, Missouri.

"Third. All the balance of my estate, real, personal and mixed, I give and bequeath to my two daughters, Amanda Fries and Alma Fries, share and share alike.

"Fourth. I hereby appoint my...