Hynds v. Hynds

Citation274 Mo. 123,202 S.W. 387
Decision Date29 March 1918
Docket NumberNo. 19031.,19031.
PartiesHYNDS et al. v. HYNDS.
CourtMissouri Supreme Court

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by A. J. Hynds and others against George Hynds. From a judgment for defendant, plaintiffs appeal. Affirmed.

This is ejectment begun in the Adair circuit court in March, 1909, to recover three tracts of land in that county. The first and largest of these tracts is described as follows: The S. ½ of the S. W. ¼ of section 12 of township 61 of range 15 except the right of way of the Wabash Railroad. It is not necessary to describe the two smaller tracts.

The petition was in the ordinary form, alleging that plaintiffs were entitled to possession on October 4, 1899, and the ouster on May 18, 1908.

The answer was: (1) A general denial; (2) a prayer that the court ascertain and adjudge the right, title, and interest of the parties plaintiff and defendant respectively, and to adjudge the defendant to be the absolute owner; (3) that his father, John Hynds, died in June, 1858, leaving his widow, Permelia E[ynds, and their children, W. G. Hynds, A. J. Hynds, Richie Hynds, Jennie Mahaffy, and defendant as his only heirs; that his mother took letters of administration of the estate, consisting of money, notes, and other personal property, out of which she purchased the land in controversy; that afterward she settled with each of the other heirs, paying them in full their respective shares, after which there only remained these lands, which did not exceed his distributive share of the estate, and which she promised to convey to him, and which he accepted as his distributive share of the estate of his father, and took possession of the same; and that for more than ten years before the death of his mother and up to the time of the beginning of the suit had remained in actual and continuous possession, claiming title thereto.

The affirmative matters so pleaded were put in issue by the reply, which alleged that, from the time of the death of her husband, his mother had furnished the defendant with food, clothing, and shelter, by which all his interest in his father's estate had been consumed. The cause came on for trial in the Adair circuit court, and resulted in a judgment vesting the entire title to the 80-acre tract we have described, in the defendant to the exclusion of plaintiffs and each of them, and declaring the title in fee to the two smaller tracts to be in the plaintiffs and defendant according to their respective interests as heirs of Permelia Hynds. From this judgment an appeal was taken to this court, in which it was reversed in so far as it was in favor of defendant as to his full ownership of the 80-acre tract, and remanded for a new trial upon that issue, which is all that is left in the case. Upon the going down of our mandate a change of venue was taken to the circuit court for Macon county, where a new trial was had, resulting in the judgment from which this appeal is taken. It adjudges the title to the 80 acres to be in defendant free from all claims of plaintiffs or either of them.

Although the title of the cause is not mentioned there is enough information scattered through the appellant's abstract of the record to justify the inference that the plaintiffs include all the living children of John and Permelia Hynds excepting defendant, together with the living children of William G. Hynds, a son, who died in March, 1899. The defendant is their youngest son. John Hynds died in Adair county in June, 1858, leaving surviving him the said Permelia, his widow, and six children, to wit, W. G. Hynds (since deceased as above stated), A. J. Hynds, Richie Hynds, Jennie Mahaffy, Mary Hynds, and George Hynds, the defendant. Riehie died about two years before the institution of this suit, childless and unmarried. Mary died at some time not stated in the evidence. Permelia Hynds died in 1898 seised in fee simple of the 80 acres of land in controversy. At the time of the death of Mr. Hynds the defendant, his youngest child, was but two years old. Nothing is said about Mrs. Mahaffy's husband, so that we may assume that she is a widow. Immediately after the death of Mr. Hynds, his widow took out letters of administration and filed an inventory of his estate, which consisted entirely of personal property, mostly cash and notes, and amounting in all to $5,452.91. She had no property of her own other than her interest in this estate. The inventory was dated and filed August 11, 1858.

September 21, 1858, Mrs. Hynds purchased the west 40 acres of the land in controversy, taking title in her own name and paying $750 therefor. On the same date she purchased the two small tracts of timber land originally involved in this suit for $223, taking the title in her own name, and April 27, 1864, she obtained the other 40 now involved in this suit, taking the title to herself.

On May 6, 1865, she made a statement as guardian of the persons and estates of "the minor heirs of John Hynds, deceased," in which she reported that she made final settlement as administratrix of his estate at the April term, 1863, of the probate court, at which she paid W. G. Hynds, one of the heirs, $450, and that there was in her hands at that time belonging to the minors, $3,343.39. This statement showed a balance still in her hands of $2,234.96, with which she accordingly charged herself as of that date. On the next day after this statement she gave bond as guardian in the sum of $5,000, which was duly approved. The receipt of W. G. Hynds for $450 is dated August 7, 1863. On August 9, 1880, the following entry appears: "Estate of Hynds, minor heirs, Permelia Hynds, G. & C. annual settlement filed." And on the same date the following: "Estate of Jennie Mahaffy, Permelia Hynds, G. & C. final settlement filed and continued." All other records of the probate court tending to throw light on this case seem to have been lost or destroyed.

On August 8, 1863, Mrs. Permelia Hynds conveyed to William G. Hynds 80 acres of land in Adair county for the expressed consideration of $150.

On August 31, 1866, one William Kirby and wife conveyed to Richie Hynds 70 acres of land in Adair county for $1,400.

On December 18, 1868, she conveyed to A. J. Hynds two lots in Kirksville for $800.

Dr. A. J. Hynds, one of the plaintiffs, testified very fully and frankly of his own connection with the estate of his father and the circumstances of the purchase from Kirby of the 70 acres of land conveyed to Richie. He himself, according to his testimony, received a considerable amount from the estate expended upon his professional education as well as the Kirksville lots, and he does not intimate that the amount so received was not as much as his full share of his father's estate; that W. G. Hynds, the oldest of the children, received 80 acres of land as valuable as that now in controversy is not questioned. The evidence also shows that in the purchase of the Kirby land Richie was as well taken care of as his older brother. It is also freely admitted that George never received anything from the estate of his father unless his nurture during infancy by his mother should be charged to him. He received no costly education and, from the time he was big enough, worked on the farm in controversy, contributing in that way to his mother's support. As to Mrs. Mahaffy she seems to have received a good education, both literary and musical, and a piano, the value of which is not stated.

At the time of the death of her husband, Mrs. Permelia Hynds resided in Millard, but afterward went to live on the land in controversy with her family, including her two sons Richie and George, both of whom remained unmarried. After George became old enough, the boys worked it. Until the mother's death the place remained the family homestead. In 1908 Richie died, and George continued to live there and worked the land up to the time of the trial. Richie, at the time of his death, devised his 70 acres to George. This, as stated by one of the witnesses, created some dissatisfaction in the family. To use the words of the witness, it made them sore.

There was much evidence to the effect that Mrs. Hynds had stated frequently that this land belonged to George, that all the others had received from her their share in the estate of their father, and that George had received nothing; and there was evidence to the effect that she had urged him to take her to a conveyancer to make a deed, but that he had been "dilatory" and had not done it. While the plaintiffs proved that George and his brother Richie, when they went to town, used frequently to come home under the influence of intoxicants, and that Mrs. Hynds would sometimes get "cranky," there was no question as to the industry and ability of both, and the farm was kept in good condition.

J. M. McCall and P. J. Reiger, both of Kirksville, and Joseph Park, of La Plata, for appellants. Campbell & Ellison and Higbee & Mills, all of Kirksville, for respondent.

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

I. There seems to be an element in human nature which might with propriety be called the family sentiment, out of which much litigation has vexed the courts. It resents favoritism among relatives of the same degree of consanguinity, and sometimes sets the most affectionate families by the ears. In this case the very best of feeling seemed to prevail in the Hynds family for many years. The death of the mother, who seems from the evidence to have been a woman of strong character and excellent business judgment, did not disturb or change their relations to each other, and the defendant continued during the succeeding eight years in the unquestioned possession of this land farming it in connection with his partner as before, without a word of protest or a call to account for his stewardship, until the death of Richie. While the appellants account for...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT