Howard v. Howard

• Decision Date: 30 March 1916
• Docket Number: No. 17732.,17732.
• Citation: 184 S.W. 993
• Parties: HOWARD et al. v. HOWARD.
• Court: Missouri Supreme Court

184 S.W. 993

HOWARD et al. v. HOWARD.

No. 17732.

Supreme Court of Missouri, Division No. 1.

March 30, 1916.

Error to Circuit Court, Livingston County.

Action by Alpheus M. Howard and others against Augustus Howard. Judgment of partition, and defendant brings error. Reversed and remanded.

Craven & Moore, of Excelsior Springs, for plaintiff in error. W. E. Fowler, of Excelsior Springs, for defendants in error.

BROWN, C.

This is partition. The petition (omitting caption) is as follows:

"Plaintiffs state: That Nicholas Howard, late of Clay county, Mo., died seised in fee of the following described tracts or parcels of land situate in the county of Livingston and state of Missouri, to wit: The southwest quarter of section No. 1, township No. 59, range 24, and the southeast quarter of section 2, township No. 59, range No. 24. That said Nicholas Howard left as his sole heirs the following named children: Alpheus M. Howard, Lenora E. Howard, Peter G. Howard, and Augustus Howard. That the said Nicholas Howard left a will, which has been duly probated according to law in Clay county, Mo., and that by the terms of said will he left one-fourth of all his real and personal property to Alpheus M. Howard, one-fourth to Lenora E. Howard, one-fourth to Peter G. Howard, and one-fourth to Augustus Howard, according to the terms of said will herein set forth. That the will of said Nicholas Howard is in words, signs, and figures as follows:

"`Owing To the Brevity and uncertainty of Human Life and while my mind is clear and sound I wish to make a Disposal of my Property amongst or Between my Children.

"`First. I will Bequeath to Lenora E. Howard, one-fourth of all my Real and Personal Property.

"`Second. I will and Bequeath to Augustus Howard, one-fourth of all my Real and Personal Property.

"`Third. I will and Bequeath Alpheus Howard, one-fourth of all my Real and Personal Property.

"`Fourth. I will and Bequeath to Peter G. Howard, one-fourth of all my Real and Personal Property.

"`It is also Both my will and desire that Lenora E. Howard, Alpheus Howard and Peter G. Howard act as Guardian (after my Death) for Augustus Howard giving To him every twelve months the interest or Proceeds of his fourth of my estate this is Done to keep Augustus Howard from spending or squandering same and should said Augustus Howard Die then will is that his share of my estate Be legally Divided amongst his heirs.

                  "`July the 6th, 1906.      Nicholas Howard
                "`Witness
                  "`C. M. Ewing
                   "`W. N. McKinney.'
                

"That the parties hereto have title to said land as follows: The said Alpheus M. Howard, Lenora E. Howard, and Peter G. Howard are each entitled to the undivided one-fourth part of said land in fee; that the said Alpheus M. Howard, Lenora E. Howard, and Peter G. Howard as guardians and trustees of and for Augustus Howard, under the terms and conditions of the last will and testament of the said Nicholas Howard, deceased, as herein set forth, are entitled to the remaining undivided one-fourth part of said land, and to hold the interest and proceeds of the same for the use and benefit of said Augustus Howard as set forth in said will. That all debts against said estate have been paid in full out of the personal property of said estate, and none of said real property will be needed for the payment of debts.

"Plaintiffs pray that partition be made of such land in accordance with the respective rights of the parties, and that if partition cannot be made in kind that said land may be sold and the proceeds appropriated according to the respective rights of the parties hereto, and for such other and further relief as to the court may deem meet and just in the premises."

At the September term the defendant by attorney, appeared and waived process, but did not answer. The court thereupon entered its interlocutory judgment for partition as follows:

"That Nicholas Howard, late of Clay county, Mo., died seised in fee of the following described tracts or parcels of land situated in the county of Livingston and state of Missouri, to wit: The southwest quarter of section No. 1, township No. 59, range 24, and the southeast quarter of section 2, township 59, range No. 24. That Nicholas Howard left as his sole heirs the following named children: Alpheus M. Howard, Lenora E. Howard, Peter G. Howard, and Augustus Howard. That the interests of the several parties hereto in the described real estate is as follows: Alpheus M. Howard, an undivided one-fourth interest; Lenora E. Howard, an undivided one-fourth interest; Peter G. Howard, an undivided one-fourth interest; Augustus Howard (or Alpheus M. Howard, Lenora E. Howard, and Peter G. Howard, as trustees for Augustus Howard), an undivided one-fourth interest. It being ascertained and determined that Augustus Howard is the lawful owner of said one-fourth interest, but whether he is entitled to the same absolutely or with said named persons who were by the last will and testament of Nicholas Howard, deceased, ancestor and former owner of said land attempted to be appointed testamentary guardian of said Augustus Howard and of his interest in said real estate, is by agreement of parties in open court left open to the further decision and determination of this court or of some other court having jurisdiction of the subject-matter and of the parties.

"It is further ordered that George Gardner, Hal Baker, and L. L. Lauderdale, three disinterested persons, residents of Livingston county, Mo., and possessing all of the statutory qualifications, be and they are hereby appointed commissioners to make partition of the premises in plaintiffs' petition described among the parties in interest according to their respective rights as herein ascertained and determined, with instructions to set off to Alpheus M. Howard one-fourth, to Lenora E. Howard, one-fourth, to Peter G. Howard, one-fourth, and to set off the other one-fourth as the interest of Augustus Howard;...