Harper v. Hudgings

• Decision Date: 28 March 1919
• Docket Number: No. 19886.,19886.
• Citation: 211 S.W. 63
• Parties: HARPER et al. v. HUDGINGS et al.
• Court: Missouri Supreme Court

211 S.W. 63

HARPER et al. v. HUDGINGS et al.

No. 19886.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Suit by Martha Harper and others against Francis Marian Hudgings and others. Decree for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

The plaintiffs brought this suit in the circuit court of Greene county against the defendants to partition 120 acres of land situate in that county. It involves the construction of the last will and testament of William H. Hudgings, deceased, who was the common source of title. The decree of partition was as prayed for by the plaintiffs, and the defendants duly appealed the cause to this court.

The petition was in conventional form, and alleged that all the plaintiffs and defendants were children or grandchildren of said William H. Hudgings, and that they were tenants in common, and each was entitled to one-thirtieth part of said land; they claiming that they took per capita under the will.

Some of the defendants filed separate answers claiming various proportions of said real estate, and insist that the children and grandchildren of William H. Hudgings took under his will per stirpes, and not per capita, as claimed by plaintiffs.

Briefly stated, the facts were these:

The land consisted of 120 acres, and William H. Hudgings, as previously stated, was the common source of title, who died in the year 1886, testate. He had eight children, six of whom he left surviving him, five sons and one daughter, and two daughters who preceded him in death. The sons were William C., Ransome E., Jasper H., James H., and Francis M. Hudgings, and the daughter was Lodusky Caroline Hudgings, and the deceased daughters were Martha West and Sarah A. Nelson. Martha West was survived by her son and only heir, William E. West, and Sarah Nelson was survived by nine children, namely, Mettle Tilbury, J. D. Nelson, W. T. Nelson, Cora L. Whitelaw, Mary E. Nelson, Henry Nelson, Louis Nelson, Walter Nelson and Marian Nelson, her only heirs at law.

The portions of the will of William H. Hudgings which are here material read as follows:

"I give and devise to my son, William C. Hudgings, the following described tracts or parcels of land situate in Greene county in state of Missouri, viz: The east half of lots 6 & 7 N. E. fr. quarter of sec. 5, township 29, range 24, containing 80 acres more or less, and also the east half of the east half of lot six northeast fr. quarter of sec. one, township twentynine, range twenty-five (25) this last being in Lawrence county, Mo., reserving however, the right of passway Ransome E. Hudgings along the south side of the east half of lot six above mentioned.

"I give and devise to my son, Ransome E Hudgings, the following tracts or parcels of land situate in Greene county, in the state of Missouri, viz.: Lot six northwest fractional quarter of section Eve, township twenty-nine, of range twenty-four, containing 80 acres more or less.

"I give and devise to my son, Jasper H. Hudgings, and to his heirs, the following described tracts or parcels of land situate in Greene county, Missouri, that is to say, the west half of lots six and seven N. E. fractional quarter, section six township twenty-nine of range twenty-four, containing 80 acres more or less, and also the west half of the east half of lot six N. E. fractional quarter of sec. one, township twenty-nine of range twenty-five. This lot being in Lawrence county, Mo.

"And I give and devise to my son, James H. Hudgings, the following described tracts of land situate in Greene county, Mo., that is to say, the east half of the southwest quarter of section thirty-four, township thirty, of range twenty-four, containing 80 acres more or less. And also the east half of the west half of lot six of N. E. fractional quarter of section one, township twenty-nine, of range twenty-five; this last being in Lawrence county, Mo.

"And also I do give and devise to my son, Francis M. Hudgings, the following tract of land situate in Greene county, Mo., that is to say, the east half of lots seven & eight of the northwest fractional quarter of section five in township twenty-nine of range twenty-four, containing 80 acres more or less.

"And I do give and devise to my grandson, William E. West, the following described tracts or parcels of land situate in Greene county, Mo., viz.; The N. E. quarter of the N. E. quarter of section twenty-nine in township thirty of range twenty-four, containing 40 acres more or less, and also the following situate in Lawrence county, Mo., the west half of the west half of lot six of N. E. fractional quarter of section one in township twenty-nine of range twenty-five, containing 20 acres more or less.

"And I also give and devise to Almira A. Hudgings my beloved wife, the following described tracts of land situate in Greene county, Mo., for her future support during her natural life, if she survive me, it being the homestead, including the buildings, that is to say, the west half of lots seven and eight of the northwest fractional quarter of section five, township twenty-nine of range twenty-four, containing 80 acres more or less. And also southeast quarter of the northeast quarter of section twenty-nine (29) township thirty, of range twenty-four, containing 40 acres more or less.

"And also I give, devise and bequeath to the heirs of my daughter, Sarah L. Nelson (she being now deceased), the sum of nine hundred dollars in money, and if there should not be personal property belonging to my estate not otherwise disposed of to pay this legacy, the balance shall be paid them by the rest of my heirs, paying their proportionate part of the lack out of property bequeathed to them by me.

"And I also do give and devise to my daughter Lodusky Caroline Hudgings, the following described tracts of land situate in Greene county, Mo., it being the homestead above mentioned, that is to say, the west half of lots seven and eight of the northwest fractional quarter of section five, township twenty-nine of range twenty-four, containing 80 acres more or less, and also the...