Hubbard v. Fuchs

• Decision Date: 21 May 1901
• Citation: 164 Mo. 426,64 S.W. 98
• Parties: HUBBARD et al. v. FUCHS.
• Court: Missouri Supreme Court

64 S.W. 98

164 Mo. 426

HUBBARD et al. v. FUCHS.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

APPEAL — FINDING OF FACTS — DECLARATIONS OF LAW — EXCEPTIONS — EVIDENCE.

1. Where, in an action at law, the evidence is conflicting, and no findings of fact are made by the court, nor any declarations of law asked, the judgment will be affirmed.

2. If there is no evidence to justify the judgment, the appellate court will interfere, though no declarations of law are asked of the trial court.

3. The action of the trial court will be reviewed where exceptions are saved on points of law other than the giving and refusing of instructions.

Appeal from circuit court, Bates county; James H. Lay. Judge.

Action by Burdell Hubbard and others against John Fuchs. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

John S. Francisco and Leon Block, for appellants. C. A. Denton, for respondent.

BURGESS, J.

This is an action of ejectment for the possession of an undivided one-third interest in the N. ½ of lot 2, and W. ¾ of the N. ½ of lot 1, of the S. W. ¼ of section 19 in township 39 of range 29 in Bates county. The petition is in the usual form. The answer, after denying generally the allegations in the petition, proceeds as follows: "Defendant, for further answer to said petition, says that the plaintiffs claim title to said land through one Clement W. Hubbard, whose children they claim to be, and they claim that said Clement W. Hubbard inherited an undivided fifth interest in said land from his father, Joel Hubbard. Defendant says: That said Joel Hubbard died seised of lands, together with some 160 or 170 acres besides, upon which he resided, and which constituted his homestead. That said Joel Hubbard died in the year 1873, and left a widow, named Nancy Jane Hubbard, and two sons, named Charles Hubbard and Clement W. Hubbard, and three daughters, to wit, Ida Bell Hubbard, and Mary Adeline, wife of Almon L. Cook, and Ellen, wife of Bellamy. That said Joel Hubbard left a will, which was duly admitted to probate, whereby he appointed one Rufus G. Hartwell his executor, and directed that his said executor should sell all his lands, and pay to his widow, Nancy Jane, five hundred dollars in lieu of dower, and to Almon L. Cook, husband of his daughter, Mary Adeline, the sum of one thousand dollars, upon the express condition that he take into his family his said son Charles Hubbard and his daughter Ida Bell Hubbard, take care of and educate them until they became of age, and further provided that, in case said Almon L. Cook should refuse to take said Charles and Ida Bell Hubbard into his said family and educate and take care of them, then the said sum of one thousand dollars should be paid to them; and he further gave to each of the said Charles and Ida Bell Hubbard the sum of eight hundred dollars, and the residue of his said estate he gave to his son Clement W. Hubbard and his daughters Adeline L. Cook and Ellen Bellamy. That said Rufus G. Hartwell qualified as executor, and proceeded to administer on said estate. But the said Nancy J. Hubbard, widow of said Joel Hubbard, refused to accept the provisions made for her by said will, and afterwards filed her petition, and had her homestead and dower in the lands of said Joel Hubbard set off to her; and the probate court appointed commissioners, who set off to her about one hundred and twenty acres of land, and in which she, as the law then was, took a fee-simple title. That the said Rufus G. Hartwell, as executor, being unable to comply with all the terms of said will, did not sell the lands of said Joel Hubbard, and did not pay the said Almon L. Cook the said sum of one thousand dollars so directed to be paid to him for the care and education of said Charles and Ida Bell Hubbard, nor did he pay the said sum of one thousand dollars to them; nor did he pay them, the said Charles and Ida Bell Hubbard, the sum of eight hundred dollars apiece, as directed by said...