Gentry v. Gentry

• Decision Date: 24 May 1894
• Parties: Gentry v. Gentry et al., Administrators, Appellants
• Court: Missouri Supreme Court

26 S.W. 1090

122 Mo. 202

Gentry v. Gentry et al., Administrators, Appellants

Supreme Court of Missouri, Second Division

May 24, 1894

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Plaintiff is the widow of William Gentry. During his lifetime he lived on and had his mansion house on the "blue land" at a point marked "X," as shown by the plat hereto annexed. For convenience of reference the lands have been colored on the plat in different colors, and designated as "blue land," and "yellow land." The latter, Gentry owned in fee; the former, he was possessed of as tenant by the curtesy, the same having been owned by a former wife, Ann, by whom he had several children, who was the sister of plaintiff, who was a widow when married to Gentry, and has a child by a former marriage.

The mansion house was situate on the place of residence known as "Oakdale," which embraced, not only the Ann Gentry land, but also the "yellow land" immediately adjoining, purchased and owned as before stated, by Gentry who held all of the "yellow land" in fee and cultivated as one farm or plantation the land described in paragraph 1 of the petition. Distant from "Oakdale," and just one mile south of it, is tract number 1. One-fourth of a mile southwest of this, is tract number 2, and one-fourth of a mile still further west from 2 is tract number 3. All of the "yellow land," as shown on the plat, was included in paragraph 1 aforesaid.

On this "Oakdale" place Gentry had lived with his wife Ann many years, and by this marriage had a large family of children still living. The mansion house in which William Gentry lived with his family for many years preceding his death was on this part of the land in which he had only a life estate, while the orchard, garden, and most of the stables and other outbuildings belonging to said farm were on that part of the land which he owned in fee. After the death of Ann, Gentry married plaintiff, her sister, in 1874, and lived with her also in the former residence down to the time of his death, May 22, 1890.

On June 6, 1890, the defendants, J. C. Thompson and John R. Gentry, were, by the probate court of Pettis county, duly appointed administrators of his estate, and on June 9, 1890, said administrators procured from the probate court an order in words and figures as follows:

"And it is further ordered that the administrators be, and they are hereby, authorized and directed to continue the cultivation of all crops now planted upon the several farms belonging to the estate, and to harvest and to properly care for all wheat, corn and oats and meadow upon each and all of said farms, and for that purpose they are directed to use the stock and implements belonging to said estate, and also to expend such sums as may be necessary in feeding and caring for said stock and implements, and to employ such hands as may be necessary for the cultivation and preservation of said crops, and to expend such sums as may be necessary for the payment of wages and for boarding said hands."

Thereupon said administrators took possession of the land described in said petition which said Gentry owned in fee, and cultivated and harvested and used the grain crops then growing thereon, and they also used all the pastures and used all the hay that grew thereon in the season of 1890. In short, said administrators got and enjoyed all the benefits and full use of all said land from the death of said William Gentry, the farming operations being carried on as in Gentry's lifetime, without in anyway consulting the widow or recognizing in any way that she had any right in or to said land or any part thereof, until February 17, 1891, when, in contemplation of this suit, the parties hereto entered into a contract hereinafter set forth; but prior to February 17, 1891, to wit: On February 7, 1891, said administrators procured from the probate court an order directing them to rent all of the lands of the estate of said William Gentry. The contract of February 17, 1891, is as follows:

"This agreement made and entered into by and between Evelyn E. Gentry, widow of William Gentry, on the one side, and J. C. Thompson and John R. Gentry, administrators for the estate of said William Gentry, on the other, witnesseth:

"That, whereas there is a contention between the said Evelyn E. Gentry and said administrators concerning, first, her right to any quarantine, and, second, if she be so entitled, then as to the land affected thereby;

"And, whereas it is desirable for all parties to lease the land this spring, so that no damage shall occur to anyone;

"Now, then, it is agreed as follows: First, that the administrators shall exercise full control over the lands belonging to the estate, and rent the same as best they can; second, that Evelyn E. Gentry binds herself to be satisfied with and abide by their action in the premises, and in the rents received; third, that she gives possession of the house and grounds adjoining, now occupied by her, by the first of March, 1891, so a tenant can be put into possession; fourth, that all questions as to the right of quarantine, the amount of land, if any, involved therein, and the share of rent belonging to Mrs. Gentry, if any, be and the same are left open without prejudice to either party; but either party, or anyone else interested may, in any court of competent jurisdiction, bring any suit or institute any proceeding to settle the above matters so left open, provided the adjudication shall apply only to rents so received, that either party may be so entitled to; and the said Evelyn Gentry limits her right to recovery, if any, to contribution from the administrators.

"This agreement only applies to rents hereafter, neither side making concession as to past rents, if any, nor as to any questions left open above.

"Witness our hands this seventeenth day of February, 1891.

"(Signed) Evelyn E. Gentry and Gentry and Thompson, administrators."

In January, 1891, plaintiff brought suit for the assignment of her dower in all the lands of which her late husband died seized, which was in the ordinary form, and in which nothing was said about her right of quarantine. This suit for dower was returnable to the May term, 1891, of the Pettis county circuit court. At the October term, 1891, she dismissed said suit for dower as to all the lands covered by the $ 30,000 deed of trust mentioned in the abstract of the record. On June 6, 1891, the plaintiff filed a petition herein in the probate court of Pettis county, which embraced all of the land in paragraph one of the petition marked down on the plat, being all of the "yellow lands" thus designated. With the exception of the "blue lands," she prayed judgment against the administrators for the rents, and asked for an order that they be compelled to pay her the rents of the lands already received by them, and all that they should receive until her dower should be assigned.

The answer of defendants was the following:

"Come now the administrators aforesaid and for their answer in this behalf say that they deny every allegation in the complaint or petition filed in this cause.

"These administrators further answering say that they did not rent the lands of the estate of William Gentry, deceased, until the said lands were put into their charge upon the order of this court, made at its February term, 1891; prior to that time they received no rent for any of the land; and they further allege that there was no mansion house upon the lands of William Gentry, deceased, and that the plaintiff in this cause did not reside, at the time of the death of said William Gentry, upon the lands of the said William Gentry, deceased, and that, therefore, no right of quarantine exists.

"They further allege that a large part of the land described in paragraph 1, was conveyed away by the plaintiff by a deed of trust to secure $ 30,000, which is now a subsisting lien, and on which there is a heavy interest charge, and they allege that the assets in their hands are not adequate to paying the same, and that it should be set off against and taken from the rents and profits, if any, and adjusted in this proceeding; and they further allege that there is now pending, and was at the time of bringing this proceeding, a suit by the plaintiff to set off her dower in the land described, in which she claims and seeks to recover the damages and rents and profits for one-third of the land from the death of the said William Gentry, which suit stands for trial and final determination in October, 1891."

The case being tried in the probate court, judgment in plaintiff's favor was rendered, substantially the same as that rendered in the circuit court. The case was appealed to the circuit court of Pettis county, where it was tried by the court at the October term, 1891. At the close of the evidence defendants asked leave to amend their answer to conform to the facts proved, by adding "paragraph B" to their answer as follows:

"The defendants further say that by and with the consent of, and acquiescence of the plaintiff they entered on the lands of William Gentry after their appointment as administrators of his estate and with her consent and acquiescence, and under the orders of the probate court of Pettis county, Missouri undertook to and did complete the crops and care for and protect and raise the same then growing thereon, and to care for and feed the stock belonging to him at the time of his death, and their possession was in no sense adverse to the plaintiff, and it was solely for the purposes above set forth up to the time of the contract pleaded in the petition herein, and that during all said time the plaintiff lived in the house where sh...