Harbison v. James

• Decision Date: 06 December 1886
• Citation: 2 S.W. 292,90 Mo. 411
• Parties: HARBISON, Adm'r, etc., v. JAMES and others.
• Court: Missouri Supreme Court

2 S.W. 292

90 Mo. 411

HARBISON, Adm'r, etc., v. JAMES and others.

Supreme Court of Missouri.

December 6, 1886.

1. WILL — LIFE-ESTATE WITH RIGHT TO USE PRINCIPAL FOR SUPPORT — REMAINDER.

A devise of property to testator's widow, with "the right to sell and reinvest, as she may desire, any part of the same for her separate use and benefit," and, at her death, "any portion of the estate remaining undisposed of" to go to the testator's children, creates a life-estate in the widow, with a power to use the principal of the estate, if necessary, for her support.¹

2. SAME — ASSIGNMENT OF ASSETS AS COLLATERAL SECURITY.

Under such power of sale and disposal, the widow can make a valid assignment of a note secured by mortgage belonging to the estate, as collateral security for money necessarily borrowed by her for her support.

3. SAME — EXPENSES OF DONEE'S LAST SICKNESS AND BURIAL.

In an equitable proceeding, after the widow's death, to determine the rights of such assignee and others in the estate, the assignee will be allowed to retain from the proceeds of the note expenses of the widow's last sickness and burial, paid by her, in addition to the sum secured by the assignment.

Appeal from special law and equity court, Jackson county.

Suit in equity by John S. Harbison, as administrator de bonis non with the will annexed, of Bartlett M. Hall, for the recovery of a promissory note, and the fund represented by it, as part of the estate of said Hall. Judgment for defendants. Plaintiff appeals.

Harbison & Titus, for appellant. F. M. Black, for respondents.

RAY, J.

This case is before us on appeal from the special law and equity court of Jackson county The material facts of the case, as we gather from the record, will appear in the progress of this opinion.

Bartlett M. Hall, a citizen and resident of the state of Kentucky, died in that state somewhere between February, 1869, and September, 1870, leaving his wife and several children surviving him. He had been twice married, but left no children by his last wife. Shortly before his death he made and published his last will and testament, as follows: "(1) I desire all my just debts to be paid. (2) I give and bequeath to my beloved wife, Mary F. Hall, all my property, including real and personal, of any and every description whatever, giving her the right to sell and reinvest, as she may desire, any part of the same for her separate use and benefit; and at her death I desire that any portion of my estate remaining undisposed of shall go to my three daughters, Mary Davis, Annie Harbison, and Amelia Wilson. (3) I have given to my son Wm. Hall and my daughter Velinda Nuckols more than I am able to give the rest of my children, therefore I give to them nothing more. (4) I have also given to Mary Davis and Annie Harbison more than I have to my daughter Amelia Wilson, and after the death of my wife, Mary F. Hall, I wish Amelia Wilson to be made equal; and so with each of the other two, Mary Davis and Annie Harbison, I desire that they should come in for their proportion equally, after what they have already received be counted to them and taken into consideration, — my object being to let each of these three daughters, Mary, Annie, and Amelia, share alike, and get all of my estate remaining after the death of my wife, and after each and all of them has accounted for the portion already received. (5) I desire that my wife, Mary F. Hall, shall qualify as my executrix."

The will was duly probated in the proper court, in said state, and his wife, who was appointed executrix, qualified as such, and entered upon the discharge of her duties thereunder. The most valuable part of the testator's estate consisted of certain real estate in Shelby county of that state. These lands were sold by the executrix, and, after applying the proceeds to the payment of his debts, there remained in her hand somewhere between $5,000 and $7,000, as variously estimated by different witnesses. After considering all the evidence on that point, we conclude that it did not exceed the sum of $5,000 or $5,300, so far as this record shows.

The widow, it seems, had no property except such as she derived under her husband's will, and what she borrowed from her sister, Mrs. Kate C. Anderson, as hereinafter stated. Some $2,000 of the money so received from the testator's estate the widow invested in certain promissory notes, on one Merriweather, of Louisville, Kentucky, secured by mortgage on real estate in that city, and upon the bankruptcy of said Merriweather, and in order to save the investment, she purchased the property at assignee's sale in bankruptcy, at the price of $3,000, and received a credit on said note for the sum of $1,833.26, and a deed for the property. In order to enable her to make the purchase, she borrowed of her sister, Mrs. Anderson, $800, and, to secure the same, executed her note and mortgage on the property so purchased, and gave her note for balance of the purchase money. And thus this investment stood at the time of her death, and, so far as this record shows, so remains outstanding, unless it has been recovered by the children and devisees in testator's will. The only amount shown by the record to have been realized by Mrs. Hall on this investment is the sum of $250 paid her by the assignee in bankruptcy on account of interest thereon. It appears, also, that some $2,500 or more of the proceeds of said estate was, for a time, loaned by the widow to Woolfolk & Co., of Louisville, Kentucky, (but at what rate of interest, or whether any was collected, does not affirmatively appear;) and was subsequently brought with her to Kansas City, Missouri, in the fall of 1875, and, together with $1,100 borrowed from the defendant Mrs. Anderson, she invested in a loan to the defendant J. Crawford James, and took from him and his wife a promissory note in the sum of $3,750, bearing date September 29, 1875, due and payable in 12 months, at 10 per cent. interest, payable semiannually. This note was also secured by a deed of trust on certain real estate in said Kansas City, where the defendant James resides.

On the twenty-third of June, 1879, at Fort Wayne, Indiana, this note was indorsed and sold and transferred by the said Mary F. Hall to the defendant Kate C. Anderson by assignment in writing; reciting, among other things, that said sale and transfer was for value received, and that the interest on said note was paid to March 29, 1879, and that $650 of the principal had also been paid, leaving at that date due and unpaid the sum of $3,100, and that the transfer of said note was made for the sole purpose of securing the said K. C. Anderson for the sum of $2,500 which she, the said Hall, had borrowed from her, the said Anderson. This note, and the fund it represents, thus made and secured and transferred, is the subject-matter of this suit.

One month after the assignment of said note the said Mary F. Hall departed this life, intestate, at Fort Wayne, Indiana, leaving as her only heirs at law her brother and sister, J. W. Crawford and the defendant K. C. Anderson, and also leaving debts to various parties, due and unpaid, including expenses of last sickness, funeral expenses, etc., to the amount of $290.55, which, the record shows, were afterwards paid by the defendant K. C. Anderson.

In September afterwards the plaintiff, Harbison, was appointed administrator de bonis non with the will annexed of the estate of said Bartlett M. Hall, deceased, by the probate court of Jackson county, Missouri, and thereupon commenced this suit against the said J. Crawford James, Kate C. Anderson, and her husband, Samuel Anderson, for the recovery of said promissory note, and the fund represented thereby; claiming, in his petition, that the same belonged to the estate of said B. M. Hall, for whose interest, and the interest of said legatees Mary Davis, Annie Harbison, and Amelia Wilson, this suit was brought; and also claiming that, by the terms of said will, the testator's wife, Mary F. Hall, had only the right and power to sell and reinvest said estate, or any part thereof, for the benefit of said estate, and the legatees named, without the power of absolute disposal of the same; and that she only had the right to the interest or usufruct arising from said estate during her life, for her personal support and maintenance; and that, at her death, all of said estate remaining and undisposed of was to go to, and be divided according to the terms of the will among, the daughters of the testator above named. The petition also charges that said Mary F. Hall did not use, or make any disposition of, said fund represented by said James note during her life-time by which plaintiff is precluded from recovering the same; and that said widow had no power or right to absolutely dispose of the same to any one; that said widow owed no debts for which said fund was or could be pledged, or for which it is or can in any way be held liable; and that she had no right or power to pledge or mortgage said fund, or any evidence of debt made or executed representing said fund. The petition also charges that defendant James, though requested, has refused to pay said sum of $3,750, with interest, to the plaintiff, and that the same is now owing the plaintiff for the use aforesaid. The petition further charges that the defendant Kate C. Anderson makes some claim to own or be interested in said note and fund; but plaintiff charges the same to be fraudulent, wrongful, and invalid, and arising from and supported by divers illegal and inequitable practices, influences, and devices, and that she took the same with notice that the fund belonged to plaintiff's testator; and, in order that she may show to the court her said claim, and have her right thereto, if any, adjudicated, she and her husband are made parties hereto. Wherefore plaintiff prays judgment against said Kate C. Anderson, that she may be barred and precluded from any claim,...