Heady v. Crouse

Decision Date22 February 1907
PartiesHEADY et al. v. CROUSE et al.
CourtMissouri Supreme Court

Testator devised lands to his widow for life, with remainder to the heirs of her body. The wife married again, and she and her second husband sued to obtain a decree for the sale of the lands, in order that the proceeds might be more profitably invested, and a sale was made by the husband as commissioner. Thereafter the husband and wife divided the land owned by him among the children, giving each a deed to his or her share. Held, that the acceptance of such deeds did not amount to a ratification of the sale of the land of the children, so as to preclude them from attacking it.


Testator, who died childless, devised his lands to his widow, with remainder to the "heirs of her body." The widow married again, and she and her second husband successfully sued their children for a decree authorizing a sale of the lands for reinvestment of the proceeds. Held, that the children of a daughter of the widow, the children having been born after the entry of the decree and the daughter having died before the widow, were not bound by it, as they derived their title, not by inheritance from their mother, but directly from the will as heirs of the body of their grandmother.

In Banc. Appeal from Circuit Court, Lincoln County; U. W. Johnson, Judge.

Action by Joseph W. Heady and others against Zuno Crouse and others. Judgment in favor of defendants, and plaintiffs appeal. Reversed and remanded.

Norton, Avery & Young, Frank Howell, and Barclay, Shields & Fauntleroy, for appellants.

It requires no argument on our part to support the proposition enunciated by us in points 1, 2, and 3. The authorities quoted under these points are from our own state, and abundantly support the proposition for which we contend.

In point 4 of our brief we take the position that, even though the children of Mrs. Heady in 1871 had a legal estate in the lands in controversy, under all of the evidence in this case they had no such interest as would authorize either a court of law or equity to enter the decree offered in evidence. The inherent jurisdiction of equity to decree a sale of the legal estate of infants in real property for reinvestment by bill or petition for that purpose has been questioned and denied from the earliest times to now. In England where the chancery jurisdiction for the protection of infants and their estates originated and is continued, the courts of chancery have uniformly denied this first-mentioned and court power without the aid of an act of Parliament. The leading English case, perhaps, on this subject is that of Taylor v. Phillips, 2 Ves. Sr. 23, decided in the year 1750. In that case Lord Chancellor Hardwicke said: "There is no instance of this court binding the inheritance of the infant by any discretionary act of the court." As in personal things, as in the composition of debts, it has been done, but never as to the inheritance, for that would be taking on the court a legislative authority—doing that which is the subject of a private bill. In the case of Russell v. Russell, 1 Malloy, 522, decided in the year 1827, Lord Chancellor Hart said: "I have no authority to bind an infant's legal real estate without the aid of an act of Parliament." These two cases, which are most frequently cited, are but an exemplification of the rule maintained in many other English chancery cases, among them Simson v. Jones, 2 R. & M. 374-377; Calvert v. Godfrey, 6 Beav. 97-109. In the first case the master of the rolls says: "This court has no authority to give an infant a power of alienation, even for her own benefit." And on page 377 the master says: "By the rule of law she has no power of disposition during her minority, and this court has, I think, no jurisdiction to give her such power, and I am not aware that any case is to be found in which the court has attempted to exercise such jurisdiction." In the case of Calvert v. Godfrey, Lord Langdale, M. R., distinctly denies the inherent jurisdiction of equity to order the sale of an infant's legal estate merely because it was beneficial to the infant. The English rule, as above announced, has been adopted and followed by a decided weight of authority, both judicial and elementary, in this country. We shall only quote from a few leading American cases to sustain our position on this subject. In the case of Losey v. Stanley, 147 N. Y. 567, 42 N. E. 8, was considered very fully the question involved in these cases, and decided that a court in chancery had no inherent jurisdiction to sell or mortgage the inheritance of minors, using this language: "Having concluded that the court had no inherent jurisdiction to sell or mortgage the inheritance of an infant, the court then considers whether the order to mortgage can be sustained by virtue of a New York statute in reference to sales by trustees, and concluded there was no statutory authority for the action of the court." Continuing, they say: "That the Supreme Court, acting as a court of equity, possesses an inherent jurisdiction for some purposes over the estates, real and personal, of minors, cannot be successfully overcontroverted; but there is no instance of this court binding the inheritance of an infant by any discretionary act of the court, for that would be taking on the court legislative authority— doing that which is properly the subject of a private bill." Without quoting further from this case, this appears the leading American on the subject, and we would ask the court to examine it. Pomeroy, in his Equity Jurisprudence, at section 1310, referring to the decisions of the American courts on this subject, says: "It seems to be a doctrine sustained by a preponderance of authority that a court of equity has no right, as a part of its jurisdiction over infants, to order the sale of the infant's real estate for the purpose of maintenance, education, or investment." In Forman v. Marsh, 11 N. Y. 544, the court says: "The court of chancery has no inherent or original jurisdiction to order the sale of an infant's real estate." Rogers v. Dill, 6 Hill (N. Y.) 415, lays down this doctrine: "The power of a court of chancery to order the sale of real estate belonging to an infant is derived entirely from the statute, and the sale of real estate devised to an infant, if ordered by a court of chancery contrary to the devise, is utterly void, and passes no title to the purchaser." In Baker v. Lorillard, 4 N. Y. 257, it was said: "The jurisdiction of a court of chancery to order the sale of an infant's real estate is derived wholly from the statute, and has no power to direct such a sale unless the infants are seised of the property." Messner v. Giddings, 65 Tex. 301, having this question before them, use this language: "No power exists in any person or tribunal to devest a minor of title to real estate, unless such power be conferred by the lawmaking department of the state." In Walker v. Smyser, 80 Ky. 620, the Supreme Court lays down this doctrine: "It is well settled that the powers of courts of equity in this state to sell and reinvest infant's real estate are not inherent but statutory." The Supreme Court of Virginia, in the case of Faulkner v. Davis, 18 Grat. 651, 98 Am. Dec. 698, says that "a court of equity has no authority under this general jurisdiction as guardian of infants to sell their real estate whenever it is for the advantage of the infants so to do." And the Supreme Court of the United States, in discussing this question in the case of Williamson v. Berry, 49 U. S. 556, 12 L. Ed. 1170, said: "The management and disposition of the estates of infants are among the mass of powers upon this subject which belong to the inherent and original jurisdiction of the court of chancery. They relate, however, to their personal estate and the increase of their real estate; the court having no inherent power to direct the sale of their real estate for their maintenance or education. That power rests with the Legislature."

This same question was referred to, but not decided, by our Supreme Court in Kearney v. Vaughan, 50 Mo. 284. In that case the right to order a sale was questioned by a stranger. The court held that a stranger to the sale could not raise the question, but added: "If this were a proceeding of the heirs to recover the property notwithstanding the sale, it would be necessary to scrutinize it, and see whether it could be sustained; but the defendants, having no interest in that question, the heirs not contesting and not being made parties may be satisfied with the sale, and willing to abide by it. However, they are not concluded by plaintiff's judgment, and so far as this case is concerned we are at liberty to complete the sale as having passed title to the plaintiffs." A case very closely related to the one at bar is the one of Stevens v. De la Vaulx, 166 Mo. 20, 65 S. W. 1003. This was a suit in equity for the partition of an estate held by trustees under the will of Patrick M. Dillon. The estate sought to be partitioned had been left to trustees to be by them leased until the death of the widow, the trust to continue during the life of the wife and children of the testator, but when any children shall die, leaving issue, such issue shall take immediately. "The petition alleged that the estate was declining in value, and that unless partitioned it would greatly depreciate," etc. The counsel argued "that, however wise and well adapted to the conditions that existed fifty years ago the terms of the will may have been, they hampered the estate in the hands of the trustees at present, and...

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