In re Ellis' Estate

• Decision Date: 20 April 1939
• Docket Number: No. 35898.,35898.
• Citation: 127 S.W.2d 441
• Parties: In re ELLIS' ESTATE. GIBSON et al. v. BURK et al.
• Court: Missouri Supreme Court

127 S.W.2d 441

In re ELLIS' ESTATE GIBSON et al. v. BURK et al.

No. 35898.

Supreme Court of Missouri, Division No. 2.

April 20, 1939.

Appeal from Circuit Court, Jasper County, at Carthage; Ray E. Watson, Judge.

Proceeding in the matter of the estate of Elizabeth Ellis, a person of unsound mind, wherein W. C. Burch, as guardian of Elizabeth Ellis, filed petition for instructions regarding whether petitioner should make an election or refuse to make an election to take under the will of J. W. Ellis, the deceased husband of Elizabeth Ellis. From the judgment and from an adverse ruling on a motion for new trial, the next of kin and others opposed by Cloia D. Burk and others appealed to the Springfield Court of Appeals which transferred the cause to the Supreme Court, 110 S.W.2d 864.

Cause remanded to Springfield Court of Appeals.

Howard Gray, of Carthage, and A. E. Spencer, of Joplin, for appellants.

McReynolds & Flanigan, of Carthage, for respondents.

BOHLING, Commissioner.

The Springfield Court of Appeals, entertaining doubt as to appellate jurisdiction, transferred (110 S.W.2d 864¹) this review here upon respondents' motion on the theory the case might involve "title to real estate" (Mo.Const.Art. 6 § 12, 15 Mo.St.Ann. p. 561). We are of opinion title to real estate is not involved in a jurisdictional constitutional sense but only incidentally and collaterally.

W. C. Burch, the duly appointed, qualified and acting guardian of the person and estate of Elizabeth B. Ellis, a person of unsound mind and incapable of managing her affairs, instituted this proceeding by petitioning the Circuit Court of Jasper county for directions as to whether he, on behalf of his ward, should abide the will of J. W. Ellis, the deceased husband of said Elizabeth B. Ellis, or renounce the same and elect to take absolutely a child's part of the lands of said J. W. Ellis (Secs. 328 and 329, R.S.1929, Mo.St.Ann. §§ 328, 329, pp. 215, 216). J. W. Ellis died April 9, 1936. His heirs at law were Elizabeth B. Ellis, his widow, Cloia D. Burk and Lenna M. Gibson, his daughters, and Ernest E. Richards, his grandson, son of a deceased daughter. His estate, as appraised for administration, consisted of real estate of the value of $41,387 and personal property of the value of $1,786.32. His last will and testament, duly admitted to probate, made specific devises and bequests of his property and contained a residuary clause. The only provision in testator's will for his widow directed his executrix, Mrs. Burk, to create and administer a $5,000 trust fund for the use and benefit of "Elizabeth B. Ellis (in case sufficient income is not derived from her own property) during her lifetime," with gift over to Cloia D. Burk. The real contesting parties may be taken as represented by Cloia D. Burk, testator's principal beneficiary, and Lenna M. Gibson, who is only mentioned, with others, in the residuary clause of testator's will. The answer of Mrs. Gibson and others sought to have said guardian elect to take a child's part absolutely in testator's estate (Secs. 323, 328, 329, R.S. 1929, Mo.St.Ann. §§ 323, 328, 329, pp. 208, 215, 216) and secure for said widow the rights accorded under Secs. 106-110, R.S. 1929, Mo.St.Ann. §§ 106-110, pp. 67-72. The answer of Cloia D. Burk and others sought to have said guardian abide the will, not make any election and not take the statutory rights accorded widows. The trial court directed petitioner "to abide by the will"; and Lenna M. Gibson and her co-parties appealed.

Respondents' position with respect to jurisdiction was that any judgment entered would affect the interest of either Mrs. Burk or Mrs. Gibson. For instance, if an election to take a child's part be ordered then a one-fourth's interest in testator's lands would pass to Mrs. Ellis, or her guardian, at the expense of Mrs. Burk and upon the death of Mrs. Ellis, she being incompetent to make a will, would pass according to our statutes of descent and distribution. However, the instant case differs from the contest of a will operating upon the title to realty over which we have jurisdiction [Proffer v. Proffer, Mo.Sup.1938, 114 S.W.2d 1035, 1036 (1, 2); Id., Mo.App., 106 S.W.2d 51; State ex rel. Pemberton v. Shain, Mo.Sup.Banc, 1939, 124 S.W.2d 1087, 1088 (5, 6)]; or a case wherein a litigant seeks a decree or judgment directly establishing or assigning a dower estate in real property [Nordquist v. Nordquist, 321 Mo. 1244, 14 S.W.2d 583; Id., Mo.App., 278 S.W. 810; Pierce v. Georger, 30 Mo.App. 650; Gebbeken...