In re Dwyer's Estate

• Decision Date: 03 May 1921
• Docket Number: No. 16375.,No. 16376.,16375.,16376.
• Citation: 231 S.W. 672
• Parties: In re DWYER'S ESTATE.
• Court: Missouri Court of Appeals

231 S.W. 672

In re DWYER'S ESTATE.

No. 16375.

No. 16376.

St. Louis Court of Appeals. Missouri.

May 3, 1921.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

"Not to be officially published."

In the matter of the estate of Timothy Dwyer, deceased. Application of Arthur Dwyer and William Dwyer, executors of decedent, for an allowance by the circuit court, on appeal from the probate court, of commissions, to which application Pearl Dwyer and others filed exceptions. From a judgment allowing the claim in part the exceptors appeal, and the executors present a cross-appeal. Reversed and remanded.

Henry Higginbotham, D. McD. Stevens, and Robert W. McElhinney, all of Clayton, for appellants.

Emerson E. Schnepp, of St. Louis, for respondents.

BECKER, J.

This is an appeal, first, by the executors of the will of Timothy Dwyer and, second, a cross-appeal by the legatees and devisees of said will, as exceptors, from an allowance, by the circuit court of St. Louis county, to the said executors, of commissions from said estate, said cause having gone to the circuit court on appeal by said executors from the probate court, from an order sustaining in part the exceptors' exceptions to their annual and final settlements.

Clauses 2 and 5 of the will, which are pertinent to the issues in this case, read as follows:

"(2) I give and devise unto my wife Elizabeth Dwyer my home place in the northeast corner of the Denny and Clayton roads, now occupied by us, containing forty acres, more or less; to have and to hold for and during her natural life; with the remainder upon her death to my children hereinafter named, or their descendants, in equal parts, the children of any deceased child taking the interest of their parent in said estate."

"(5) All my other personal property first to be sold and the proceeds thereof collected by my executors, and all the rest and remainder of my real estate to be sold by my executors hereinafter named and the proceeds of both personal and real estate, after deducting the debts and legacies above mentioned, to be equally divided between my said children above named, or their descendants if any of them should be dead.

"My executors are directed to use discretion as to the time when said real estate shall be sold, and in no case sacrifice same, and if not sold within five years after my death, it may be divided in kind among my children or their descendants if a majority of my children then living so desire; if any of my children shall be then dead their descendants shall take their parent's share."

The testator died in February, 1914, leaving surviving him a widow and eight children. Seven of the children were specifically named in the will, but the eighth child, John, had inadvertently been omitted. Two of the testator's sons were named as executors of the will. They duly qualified as such and administered upon the estate, but up to February, 1916, the executors had failed to exercise the power to sell the real estate under the will. Some time after the probate of the will the pretermitted heir, John Dwyer, executed and delivered a quitclaim deed to the executors for all of his right, title, and interest in and to the estate, in consideration of which he was to receive a proportionate share of the estate the same as each of the other children of the testator.

The widow, on her part, decided that she wanted to move off the home place, the 40-acre tract left her for her life, and to move to the town of Clayton, and upon the children of the testator executing a lease to her for life on a house in Clayton owned by them, at the rental of one cent per year, and the said children agreeing to pay her the sum of $40 per month as long as she should live, the widow made a quitclaim deed to the executors to all of her right, title, and interest in and to the 40-acre tract devised to her in the will. The executors thereupon took possession of all of the real estate including the home place, managed the same, collected the rents, made repairs, and paid the taxes for a period of two years or more with the full knowledge and consent of all of the children.

In the early part of 1916, the children being desirous of having the estate finally closed, held various conferences, and finally agreed to divide the property in kind among themselves. By mutual consent of all the heirs, the valuation of each parcel of the real estate was agreed upon, and according to the total of these valuations, $8,500 was the approximate sum that each child's share amounted to, and so the various parcels were grouped into eight shares each share approximating as near as possible said value of $8,500. Any share having a value greater or less than $8,500, the excess or deficiency thereof was to be deducted from or added to the distributive share of the heir (who accepted such share of the real estate) on final settlement of the estate.:n this manner all of the shares of real estate would be equalized.

The deeds to the several parcels of land were executed by all of the heirs and the executors as well. Two of these eight divisions or shares went to the executors themselves. Prior to the execution and delivery of the said deeds the executors prepared and had each of the heirs sign a written agreement. These agreements were uniform, excepting as to the description of the property and the price thereof, and read as follows:

"In Consideration of a distribution of $8,500 to be made to each of the eight children, we, the undersigned, agree to purchase from the executors of the estate of Timothy T. Dwyer, the following described property. * * *"

Then follows the description of the property and the price to be paid therefor by such heir as was to receive the deed for such property. It will be noted that there was included in this distribution of the real estate the one-eighth interest therein which John Dwyer, the pretermitted heir, had quit-claimed to the executors, and also the home...