Kelsay v. Frazier

• Decision Date: 30 April 1883
• Citation: 78 Mo. 111
• Parties: KELSAY v. FRAZIER et al., Appellants.
• Court: Missouri Supreme Court

78 Mo. 111

KELSAY

v.FRAZIER et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Morgan Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Draffen & Williams for appellant.

A. W. Anthony for respondent.

NORTON, J.

This is an action of ejectment to recover possession of lots 104 and 105 in block 49 in the town of Versailles, Morgan county. The petition is in the usual form. The answer is a general denial and also sets up title in defendants Rice and Wells. On the trial of the cause plaintiff obtained judgment, from which the defendants have appealed. Both parties claimed title through John C. McCoy, who died in September, 1873. Plaintiff in support of his title offered in evidence a deed from John Simms, public administrator of Morgan county, having in charge the estate of said McCoy, deceased, conveying the lots in controversy, the sale having been made by him in pursuance of an order of the probate court of said county, directing the sale of said property for the purpose of paying the debts of said McCoy, deceased. This deed was dated January 29th, 1876. The defendants, in support of their claim of title, put in evidence a deed from Evaline McCoy, the widow of said John McCoy, deceased, dated January 18th, 1876, conveying to defendant Rice an undivided half interest in the lots sued for; they also offered evidence showing that said John McCoy was living on the said lots at the time of his death, with his family, as his homestead; that the property was not worth exceeding five or six hundred dollars; that said McCoy died in 1873 leaving said Evaline, his widow, surviving, who for a short time continued to reside on the premises, and four years later died, leaving defendant Porter Wells her only surviving heir. Defendants here rested and plaintiff offered, and the court received in evidence, over defendants' objection, the following paper:

“We, the undersigned, widow and heirs of John C. McCoy, deceased, have this day agreed with each other, and hereby obligate ourselves to divide the estate of the deceased, after the payment of all debts and expenses of administration, into three equal parts, and each take one-third in full of all claims and demands against said estate; it being hereby intended by the widow of said deceased, to relinquish all claim of dower, in consideration of the above provision; and, we further agree, if said division cannot be made, in kind, that the property shall be sold by the public administrator of Morgan county, and, after the expenses are paid, the proceeds of such sale divided among us according to our respective interests, as above stated. Witness our hands and seals, this 29th day of September, 1873.

EVALINE U. MCCOY, [SEAL.]

WILLARD J. MCCOY, [SEAL.]

LUCINUS S. MCCOY, [SEAL.”]

The court gave on plaintiff's motion, and against the objection of defendants, the following instruction, viz: “If the jury believe from the evidence that Willard J. McCoy and Lucinus McCoy and Evaline U. McCoy, the widow, were the only heirs at law of John C. McCoy, at the time of his death, and that they executed and acknowledged the instrument of writing, read in evidence, and that in pursuance of said agreement, the probate court of Morgan county ordered a sale of the property in...