In re Wood's Estate

• Decision Date: 14 June 1909
• Citation: 120 S.W. 635,138 Mo. App. 258
• Parties: In re WOOD'S ESTATE.
• Court: Missouri Court of Appeals

120 S.W. 635

138 Mo. App. 258

In re WOOD'S ESTATE.

Kansas City Court of Appeals. Missouri.

June 14, 1909.

1. COURTS (§ 200½)—PROBATE COURTS—JURISDICTION TO TRY TITLE.

In a proceeding by the executor for an order for the sale of realty claimed to belong to the estate, the probate court has no jurisdiction to hear and determine the issue of title to the property.

2. APPEAL AND ERROR (§ 20)—GROUNDS OF APPELLATE JURISDICTION—JURISDICTION OF LOWER COURT.

Upon appeal from the probate court, the circuit court must try the case anew upon the same cause of action, so that, where the probate court had no jurisdiction to try an issue as to the ownership of land sought to be sold for debts, the circuit court acquired no jurisdiction thereof on appeal to it, and hence the Court of Appeals would not have jurisdiction thereof on appeal from the circuit court.

3. EXECUTORS AND ADMINISTRATORS (§ 338)— SALE—APPLICATION—OBJECTIONS.

While the probate court on an application under Rev. St. 1899, § 146 (Ann. St. 1906, p. 384), and the following sections relating to the sale of land to pay debts for an order to sell property claimed to belong to the estate, could not adjudicate title to the property, it could determine whether a dispute as to title was a sufficient could to cause the property to be sold at a sacrifice and refuse the application if it so decided, and, where others claimed title to the property sought to be sold, under a deed which, on its face, tended strongly to support their claim, application for a sale was properly denied.

Appeal from Circuit Court, Jackson County; Henry L. McCune, Judge.

In the matter of the estate of Corinne E. Wood. Application by James H. Lloyd and another, executors, to sell land for the payment of debts, to which Anna W. Harris and others objected. From a judgment for objectors in the circuit court on appeal from the probate court, the executors appeals. Affirmed.

Albert Young and Frank Titus, for appellants. Gage, Ladd & Small and Scarritt, Scarritt & Jones, for Virginia Broadwell and others.

JOHNSON, J.

This proceeding was originated in the probate court of Jackson county by the application of the executors of the last will of Corinne E. Wood for an order to sell certain real estate inventoried as the property of the testatrix for the purpose of paying debts and a legacy; the personal estate being insufficient for that purpose. Anna W. Harris, Mary B. Stewart, and Virginia Broadwell, three of the heirs of the testatrix, appeared and resisted the application on the ground that they and Mary Wood, another heir, were the owners in fee simple of the land sought to be sold. The probate court on final hearing sustained the objections, and refused to order the sale, because "there is doubt as to decedent's title to the property sought to be sold." The executors appealed to the circuit court, where a trial of the issues resulted in favor of the objectors, whereupon the executors appealed to this court.

The land in question was inventoried as property of the estate, and the executors contend that it was owned in fee simple by the testatrix at the time of her death, while the objectors occupy the position that the testatrix had only a life estate in the land, with remainder in the objectors and Mary Wood. The solution of this question would depend largely, if not entirely, on the construction to be placed on the terms of the deed on which the claims of the respective parties must be founded. That deed was executed in 1883 by J. W. Vincent and wife, then the owners of the land, to James H. Lloyd, as trustee. The trust attempted to be created therein thus was expressed: "In trust, nevertheless and to the intents and for the uses and purposes the following, that is to say, In trust to manage, control and demise the said premises and every part thereof for and during the natural life of Corinne E. Wood, wife of Joseph M. Wood of Kansas City, Jackson county, Missouri, to and for her the said Corinne E. Wood's own sole and separate use, benefit and behoof, and in such manner, form and way as that the same shall not be liable for her debts or obligations, or the debts or obligations of her present husband or of any husband she may have in the future, and during her life, and forever after her death held free and discharged from any right, claim, or interest therein or thereto of her present husband and of any husband she may have in the future, provided always if during the life of the said Corinne E. Wood she shall desire the sale of the said premises or any part thereof and the investment of the proceeds thereof of such sale, after payment thereout of the costs and expenses of sale and investment, in other real estate, or in bonds, national, state, county, city, or town, or in solvent well secured promissory notes, then, upon signification of such desire by said Corinne E. Wood in writing to said party of the second part, he shall be fully...