Grant v. Hathaway
| Decision Date | 15 December 1908 |
| Citation | 114 S.W. 609,215 Mo. 141 |
| Parties | E. W. GRANT, Administrator of Estate of DAVID S.W. HATHAWAY, Deceased, v. CHARLIE A. HATHAWAY and DAVID S.W. HATHAWAY, a Minor, Appellants |
| Court | Missouri Supreme Court |
Appeal from Callaway Circuit Court. -- Hon. A. H. Waller, Judge.
Reversed.
N. D Thurmond and J. W. Tincher for appellants.
(1) The will of D. S.W. Hathaway did not specifically devise his land and at his death the title to his land vested in his heirs or legatees and not in the administrator. The authority to sell the land of decedent is given by the statute, section 146 and this power cannot be exercised by the administrator without an order of sale by the probate court. In order that the administrator may sell land to pay debts and legacies the statutes nowhere requires or authorizes the administrator to take possession of the lands. The order of the probate court in this case was in the usual form and did not direct the administrator to take possession of the land, and even if the order did so direct it would be without authority of the law. R. S. 1899, secs. 146-150. (2) The administrator is not authorized to take possession of decedent's lands except under the provisions of section 130, and then only for the purposes therein mentioned. The probate court made no order for the administrator to take possession of and rent the land in controversy, and without such an order the administrator could not maintain an action for the possession of the land even if it was owned by the decedent at his death. The administrator cannot sue in ejection. Burdyne v Mackey, 7 Mo. 374; Aubuchon v. Lory, 23 Mo. 99; Chambers' Administrator v. Wright's Heirs, 40 Mo. 482; Thorp v. Miller, 137 Mo. 231; Hall v. Bank, 145 Mo. 418.
David H. Harris and Robert McPheeters for respondent.
(1) The reason of a law is its life, and in construing it courts look to the purpose in view in its enactment. State ex rel. v. Swanger, 190 Mo. 576; Blandy v. Asher, 72 Mo. 31. The history of a law is an important factor and may always be taken into consideration in construing its meaning. State v. Balch, 178 Mo. 392; Springfield Gro. Co. v. Walton, 95 Mo.App. 526; Duff v. Karr, 91 Mo.App. 16; Schawacker v. McLaughlin, 139 Mo. 333. The general purpose and object of the statute is never to be overlooked in its construction and application and it should have a reasonable interpretation. Ross v. Railroad, 111 Mo. 18; Carson-Rand Co. v. Stern, 129 Mo. 381. In the construction of a statute it is proper to consider the prior state of the law on the subject and all changes therein. Gabriel v. Mullen, 111 Mo. 119; State ex rel. v. Hostetter, 137 Mo. 636. The effect and consequences of any proposed construction of a law may properly be considered as an aid in ascertaining the probable intention of the lawgiver as expressed in it. Kane v. Railroad, 112 Mo. 34; Bowers v. Smith, 111 Mo. 45; Chouteau v. Railroad, 122 Mo. 375; State v. Slover, 126 Mo. 652; State ex rel. v. Garrett, 76 Mo.App. 303. If a certain interpretation would lead to unreasonable or iniquitous results, it will not be adopted unless such an interpretation is compelled by the language. Moorshead v. Railroad, 119 Mo.App. 576; Hilgert v. Pav. Co., 107 Mo.App. 393. What is within the true intent and spirit of the statute is as much a part of it as its letter. Schawacker v. McLaughlin, 139 Mo. 333. It is one of the well-recognized canons of construction that what is implied in a statute is as much a part of it as if it was expressed. State ex rel. v. Moore, 96 Mo.App. 434. Whenever power is granted by a statute, the grant of the power carries with it, by necessary implication, everything necessary to make the grant effectual. State ex rel. v. Perkins, 139 Mo. 106; Sheidley v. Lynch, 95 Mo. 487; Bryant v. Russell, 127 Mo. 422. (2) If it is necessary to have possession of lands to rent, such possession is certainly necessary in order to effect a sale. Statutes in pari materia are to be construed as one law. State ex rel. v. Slover, 126 Mo. 652; St. Louis v. Howard, 119 Mo. 45. (3) To say that the probate court is without authority to make an order directing an administrator to take possession of a decedent's real estate for the purpose of selling same for the payment of debts and legacies, would, in many cases, render section 146 of our statutes wholly ineffective. One of the absolute essentials or prerequisites of a sale is the power or ability on the part of the seller to deliver possession to the purchaser of the thing sold.
This is an action in ejectment for forty acres of land in Callaway county, Missouri. In January, 1903, David S.W. Hathaway, deceased, of Davis county, Iowa, bargained to purchase two adjoining farms in Callaway county, Missouri, one consisting of 120 acres, and known as the Tyler farm, and the other 160 acres, owned by one Robert L. Smith. For the latter tract Hathaway agreed to pay $ 5,000. Smith executed a deed, conveying this 160 acres to D. S.W. Hathaway, and left it in the hands of real estate agents at Fulton for delivery to Hathaway. On March 9, 1903, Hathaway, accompanied by his son, Charlie A., and George W. Hamilton, a real estate agent, went to the law office of T. A. Boulware, in Fulton, and stated to him that he wanted said deed changed so that Charlie A. Hathaway should appear as grantee in the deed instead of D. S.W. Hathaway. Boulware telephoned to Smith for permission to make the change, which permission was given, and the change was made accordingly. The elder Hathaway explained that the deed was made without consulting him, and that he wanted 120 acres of the land conveyed to his son and the remaining forty acres to himself. It was understood by Mr. Boulware that the old gentleman did not have enough money to pay the purchase price of the land, and that the son was to borrow a sum sufficient to make up the deficiency and give a deed of trust on the land conveyed to him to secure the loan. After leaving Mr. Boulware's office the parties went to the office of Mr. Hamilton, where the latter, as instructed by the elder Hathaway, wrote a deed conveying forty acres of this 160-acre tract to "David S.W. Hathaway, of the county of Davis, in the State of Iowa." Upon the 120 acres remaining in the hands of Charlie A. Hathaway a loan of $ 1,600 was then effected, and the purchase price of the whole tract of 160 acres paid in full to Smith, the original grantor.
Charlie A. Hathaway had a little son, six years of age, named David S.W. Hathaway, after his grandfather, and he was present while these transactions were in progress; and the defendants claim in their answer to plaintiff's petition, and endeavor to prove, that the grantee named in the deed to the forty acres in controversy was David S.W. Hathaway, minor defendant, and not his grandfather. However, both Mr. Boulware and Mr. Hamilton testified at the trial that it was their understanding that the old gentleman was intended as the grantee and not his namesake grandson. The elder David S.W. Hathaway went into immediate possession of the land in controversy, had it cultivated, and made improvements thereon. After his death, in August, 1903, his son, Charlie A. Hathaway, claimed this forty acres of land for his infant son. There was considerable testimony on the question of ownership of this forty acres, but as it has little or no bearing on the main issue involved, we deem it unnecessary to dwell upon it further.
It developed that the estate of David S.W. Hathaway in Davis county, Iowa, his home, was insolvent, and letters of administration were issued by the probate court of Callaway county to E. W. Grant, of Callaway county, as administrator of the estate of David S.W. Hathaway in said county. Hathaway left a will which was admitted to probate both in Iowa and Missouri. By this will he bequeathed $ 5,000 in money to his wife and also left her his residence property in the city of Bloomfield, Iowa. This residence property, however, was incumbered, and was afterwards sold for the payment of the incumbrance. Bequests of $ 500 each were made to...
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