Hill v. Hill

• Decision Date: 14 July 1914
• Docket Number: No. 15934.,15934.
• Citation: 261 Mo. 55,168 S.W. 1165
• Parties: HILL et al. v. HILL et al.
• Court: Missouri Supreme Court

168 S.W. 1165

261 Mo. 55

HILL et al. v. HILL et al.

No. 15934.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

PARTITION (§ 21)—TIME FOR—EFFECT OF PROVISIONS OF WILL.

Where a testator devised real property to his son and the son's wife for life, which was at their death to be divided equally between all his grandchildren, with provisions that in case of the son's death before his wife the land should be divided equally between the grandchildren and the wife, partition could not, under Rev. St. 1909, § 2569, prohibiting partition contrary to the will, be had during the lifetime of the son and his wife, the provisions in the testator's will that the land should be divided at specified times prohibiting an earlier division.

Appeal from Circuit Court, Lincoln County; J. D. Barnett, Judge.

Suit by Brainard T. Hill and others against Ellery W. Hill and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Action for partition of real estate. From a judgment of the circuit court sustaining a demurrer to the plaintiffs' petition, they appeal.

On June 23, 1905, one William H. Hill devised his real estate to his son, daughter-in-law, and grandchildren by the following will:

"I will and bequeath my real estate consisting of about two hundred acres ¼ of a mile southeast of Troy in Lincoln county, Mo., to my son B. T. Hill and his wife Nettie during their natural lives and at the death of both to be divided equally between all of my grandchildren. But should my son B. T. Hill die before his wife, I devise that the real estate be divided equally between my grandchildren and daughter-in-law, Nettie, share and share alike. I give to my son B. T. Hill six hundred dollars, I give and bequeath to each of my grandchildren the sum of five hundred dollars, the share of her two children to be held in trust and managed by my daughter-in-law, Nettie, their mother, I hereby nominate, constitute and appoint my son B. T. Hill executor of this my last will and testament without bond."

The petition to which a demurrer was sustained contains a copy of the foregoing will, and avers that the plaintiff Brainard T. Hill is the B. T. Hill referred to as a devisee in said will; that plaintiff Emma A. Hill is the wife of said Brainard T. Hill, and is designated in said will as "Nettie" Hill; that plaintiff Jessie W. Hill and the defendants are the grandchildren of William H. Hill, the testator. Said testator died in 1905, and his will was duly probated.

Plaintiffs Brainard T. and his wife, Emma A. Hill, allege that, under the will of William H. Hill, they are the owners of a life estate in the land sought to be partitioned; that, owing to the large number of interests in the land so devised, such land cannot be equitably partitioned in kind between plaintiffs and defendants, wherefore plaintiffs pray that said land be sold and the value of the life estate of said Brainard T. and Emma A. Hill be paid to them out of the proceeds of such sale, and that the remainder of said proceeds, less the expenses of the sale, be distributed to the grandchildren of said William H. Hill, deceased. The defendants, who are minors, through their curator demurred to said petition, on the ground that it shows on its face that the lands described in the petition are not subject to partition.

Avery, Young & Woolfolk and Frank Howell, all of Troy, for appellants. R. L. Sutton and Creech & Penn, all of Troy, for respondents.

BROWN, J. (after stating the facts as above).

It will thus be seen that the demurrer of defendants presents the issue that, under section 2569, R. S. 1909, the real estate described in the petition cannot be partitioned in kind or sold during the lifetime of plaintiff Brainard T. Hill without disregarding the intent of the testator, as expressed in his will.

It will be observed that the will makes two provisions under either of which the real estate devised may be divided: First, upon the death of both Brainard T. and his wife, Emma A. Hill; and, second, upon the death of Brainard T. Hill while his wife is yet living. Neither of those parties have died, and the vital question before us is: Can the real estate so devised be partitioned or sold without disregarding the expressed wishes of the testator? The proper construction of the word "divided," as used in the will now in judgment, must, in a large measure, determine the issue confronting us. Did the testator by directing that the real estate should be divided upon the death of Brainard T. Hill, or upon the death of both Brainard T. and his wife, Emma A., express a desire that such real estate be not partitioned or sold until...