King v. Theis
| Decision Date | 03 December 1917 |
| Docket Number | No. 18807.,18807. |
| Citation | 199 S.W. 183,272 Mo. 416 |
| Parties | KING et al. v. THEIS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Howard County; Alex H. Waller, Judge.
Action by James C. King and others against Henry Theis. Judgment for defendant, and plaintiffs appeal. Affirmed.
Kenneth McC. De Weese, of Kansas City, and Bailey & Hart, of Brookfield, for appellants. J. H. Denny, of Glasgow, and Roy D. Williams, of Boonville, for respondent.
I. This is an action in two counts, one for an ejectment, and the other to try title. The subject of the suit is 26 acres of land lying in Howard county, which were a part of the farm of David Cooper, who died in 1869, leaving four children, to whom he devised the land in question by the following clause of his will:
The four children mentioned in this clause of the will died respectively in 1897, 1899, 1908, and 1912, none of them leaving any issue, except Sallie A. King, who left six children — the plaintiffs in the present suit.
In April, 1878, three of the devisees mentioned in the above clause of the will brought an action against the other devisee, Sallie King, and her husband and children (the present plaintiffs), to partition the land of which their father died seised, including the 26 acres in controversy. Partition was prayed according to the provisions of the will. The present plaintiffs (then minors) were made defendants, and were represented by a guardian ad litem, a decree in partition was granted, and the land divided into four parcels, numbered 1, 2, 3, and 4, and allotted in severalty to each of the four children of David Cooper. Thereafter Joseph D. Cooper executed a trust deed to secure a note for $500, in favor of L. L. Lynn on 40 acres allotted to him by the decree in partition, and which includes the 26 acres in controversy. The defendant of the present action claims by mesne conveyances from L. L. Lynn, to whom the land was conveyed by the trustee under the foreclosure of said trust deed.
In June, 1900, L. L. Lynn, in virtue of his purchase of said land, brought a suit under section 2092 of the Revision of 1889, making all of the present plaintiffs parties, and they were duly served with process, but after taking legal advice declined to appear in said action. But the attorney who represented other defendants also filed an answer on behalf of the present plaintiffs, wherein they disclaimed any interest in the land. In that case the prayer of the petition filed by L. L. Lynn was granted. On the trial of the present suit defendant relied on these prior suits as creating an estoppel, the statute of limitations, and his paper title. A judgment was rendered in his favor, from which plaintiffs have duly appealed.
II. The true intent and meaning of the will of David Cooper was: First, to devise an estate for life or until her marriage to Fannie E. Cooper in the entire farm; second, in the event of her marriage, to devise the entire farm to her and his three other children as tenants in common for life with remainders in fee to their respective bodily heirs; third, in case of the death of Fannie E. Cooper, while unmarried, to devise the entire farm to his other three children with similar remainders. This construction is necessarily applicable to the terms of the third clause of the will of David Cooper for the reason that by its language an estate tail at common law would have arisen upon the marriage or death of Fannie E. Cooper, and since that form of tenure is now abolished, the tenant of a fee tail becomes a life tenant, with remainders in fee simple to the person to whom the estate would first...
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