Hood v. Shively

• Decision Date: 25 September 1930
• Docket Number: No. 4783.,4783.
• Parties: HOOD et al. v. SHIVELY et al.
• Court: Missouri Court of Appeals

31 S.W.2d 283

HOOD et al. v. SHIVELY et al.

No. 4783.

Springfield Court of Appeals. Missouri.

September 25, 1930.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

"Not to be officially published."

Suit by Rachel Hood and another against George A. Shively, individually and as administrator de bonis non with the will annexed of the estate of H. C. Shively, deceased, and another. Judgment for defendants, and plaintiffs appeal.

Reversed and remanded, with directions.

J. D. Harris, of Carthage, for appellants.

Ray Bond, of Joplin, for respondents.

BAILEY, J.

This is a suit in partition involving 80 acres of land in Jasper county. H. C. Shively died, testate, October 12, 1912, seized of this land. The petition recites that the said H. C. Shively left surviving him his widow, Minerva Jane Shively, and his children Rachel Hood and Effie Hood, plaintiffs herein, and George A. Shively and his daughter, Zaidee Shively Smith, defendants. It is further alleged that the will was duly established, admitted to probate, and that the widow fully administered on the estate, paid all debts, and made final settlement. It is further alleged that the widow was given a life estate under the will and departed this life January 13, 1924; that defendant George A. Shively was thereafter appointed administrator de bonis non with the will annexed on the estate of the said H. C. Shively; that by the terms of the will plaintiffs and defendants became tenants in common in said land, each owning an undivided one-fourth. Then follows a conventional prayer for partition.

The answer set up as a defense that plaintiffs and defendants were not tenants in common; that Minerva Jane Shively died January 13, 1924; that no administrator was appointed at that time to carry out the terms of the will of H. C. Shively, deceased, providing for the sale of the land; that the land was managed by Harry Riddle; that in September, 1927, defendant George A. Shively was upon his own application, duly appointed administrator de bonis non, with the will annexed, of the said H. C. Shively estate. The answer further sets up that, "to order partition of said land would be directly contrary to and in direct conflict with said will of said H. C. Shively, deceased, and with the directions, intent and purposes therein contained. That the sole jurisdiction to administer on said estate and direct the disposition of the income thereof and of the proceeds of any sale arising from said land, is vested in the Probate Court of Jasper County, Missouri, and that this court is without jurisdiction over the subject matter of this action." The reply was a general denial. Upon the issues thus made a trial was had before the circuit court of Jasper county, which court, in a written opinion, held that: "An order of sale in partition and the distribution of the proceeds thereof would be in contravention of the will of deceased, in that it would provide machinery for sale and distribution other than that provided in the will of the deceased, and the judgment will be for defendants." Plaintiffs have appealed.

The will involved, after granting certain specific bequests to testator's children and giving to his wife a life estate in all his property, proceeds as follows:

"10th. I will that after the death of my wife all property be sold, personal property to be sold at public sale, out of which proceeds the funeral expenses of my wife be paid, the balance to be equally divided among my children.

"11th. The farm and all real estate to be sold as soon as convenient and a fair price can be realized, and all money thus realized after all expenses are paid to be equally divided among my children.

"12th. In the meantime while the farm remains unsold to be rented to best advantage to good reliable parties and proceeds to be divided equally among my children.

"13th. I will that the Probate Court appoint an Administrator and executor of this my last Will and Testament."

The question in this case is whether the trial court erred in holding that partition of said land could not be had because in contravention of the will of H. C. Shively, deceased, as above set forth. Our statutes prohibit partition or sale of lands devised by any last will contrary to the intention of the testator expressed in any such will. Section 2005, Rev. St. Mo. 1919. We also have a statute (declaratory of the common law) that the court shall have due regard to the directions of the will and the true intent of the testator therein expressed. Section 555, Rev. St. Mo. 1919. This rule has been strictly adhered to and consistently applied by the courts of this state. The intent of the testator once determined becomes the rule and guide in construing a will. There is no difficulty, however, in determining the intent of the testator in this case. His wife, Minerva Jane, was granted a life estate in all his property. As to that there is no question. Upon her death all the property was to be sold, and, after paying her funeral expenses, the balance was to be divided equally among his children. By the tenth clause the real estate was to be sold, "as soon as convenient and a fair price can be realized." The will does not name an executor for the estate after the death of the wife, but leaves the appointment of an administrator to the probate court. The twelfth clause provides for the renting of the farm while the farm remains unsold and a division of the rent money among testator's children. It is evident he intended a sale under the will and a conversion of the property into money in the belief, no doubt, that the interest of his children would thereby be best served, since the estate was small.

The will was admitted to probate in 1912, and final...