Llewellyn v. Llewellyn

• Decision Date: 05 February 1907
• Citation: 99 S.W. 809,122 Mo. App. 467
• Parties: LLEWELLYN v. LLEWELLYN.
• Court: Missouri Court of Appeals

99 S.W. 809

122 Mo. App. 467

LLEWELLYN v. LLEWELLYN.

St. Louis Court of Appeals. Missouri.

February 5, 1907.

CONVERSION—LAND INTO PERSONALTY.

Testator's will directed that his executor should sell testator's undivided interest in certain lands, and loan the proceeds and pay the interest to the widow until the testator's youngest daughter reached her majority, and that the principal should then be divided equally among the children. While a partition suit by the executor was pending, but before decree,

testator's minor daughters conveyed their interest. Held, that the case was one for the application of equitable doctrine of conversion, and the executor was entitled to the proceeds of testator's entire interest to be disposed of as directed in the will.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Partition by Charles T. Llewellyn against George E. Llewellyn, and from the order of distribution, plaintiff appeals. Reversed and remanded, with directions to distribute the proceeds in accordance with the opinion.

O. S. & G. M. Callihan, for appellant. Whiteside & Yant and T. L. Montgomery, for respondent.

GOODE, J.

This controversy is over a portion of the proceeds realized by the sale in partition of 68 acres of land. John W. Llewellyn, who died intestate December 16, 1886, owned the land in fee, and is the original source of title to which the claims of all the parties in interest can be traced. He left surviving him as heirs at law, his father, Jacob W. Llewellyn, his brothers and sisters of the whole blood, Charles T., George E., and Martha A. Llewellyn, and Nancy J. Benning and Josephine Waples, and his sisters of the half-blood, Mary S., Maud U., Jessie, and Edith A. Llewellyn. It follows that the land was inherited in eight undivided interests, six of which went to heirs of the whole blood, and two to heirs of the half-blood. Josephine Waples bought the undivided interests of Charles T., George E. and Jacob Llewellyn, and Nancy J. Benning, thus acquiring an undivided five-eighths interest, which she died owning, leaving surviving her her husband, Eugene Waples. They had had a child which died in infancy, and her said husband was therefore entitled to a life estate by curtesy in her said five-eighths interest. The heirs left by said Josephine Waples were her father, Jacob W., her brothers, Charles T. and George E. Llewellyn, her whole sisters, Martha A. Llewellyn and Nancy J. Benning, and her half-sisters, Maud, Mary, Jessie, and Edith Llewellyn. After her death the interests stood thus: Martha A. was entitled to an undivided one-eighth interest in the land as heir of her brother, the original owner, John W. Llewellyn, and to an undivided 5/56 interest as the heir of her sister Josephine Waples; that is to say, Martha was entitled to an undivided 12/56 part. The father, Jacob W., the brothers, Charles T. and George E. and the whole sister, Nancy J. Benning, were each entitled to a 5/56 part as the heirs of Josephine Waples, and her four half-sisters each to an undivided 1/16 interest as heirs of John W. Llewellyn and 5/112 interest as heirs of Josephine Waples; or, adding those interests to a 6/56 part. All interests inherited from Josephine Waples were subject to the life estate of Eugene Waples; that is to say, his life estate in five-eighths of the land. This estate by the curtesy Eugene Waples conveyed to Jacob Llewellyn, who, therefore, at his death February 16, 1895, owned said curtesy for the life of Waples, besides the 5/56 part he had inherited from Mrs. Waples subject to said curtesy. By his last will Jacob Llewellyn appointed his son Charles T. Llewellyn his executor, and directed him to sell certain property, including the land in controversy. The clause of the will in which the direction was given is as follows: "Seventh. I hereby appoint my son, Charles T. Llewellyn my executor to carry out the provisions of this will, and he or my administrator, should it become necessary to have one, is directed to collect all notes and accounts due me, sell stock should I leave any undisposed of, dispose of to the best advantage all my right, title and interest in and to one hundred and sixty acres, the east half of the east half of section No. twenty-six (26) and twenty acres, the south end of the east half of the southeast quarter of section twenty-three (23) and three acres, more or less, off of the north end of the east half of the northeast quarter of section No. thirty-five (35) all in township No. sixty-four (64) Range No. seven (7) and dispose of any personal effects that I may leave undisposed of; and after paying burial expenses and all just demands, shall loan the remainder at interest, taking real estate security only, and shall pay over to my wife, Olivia M. Llewellyn, the interest thereon annually until my youngest daughter Edith Ann arrives at the age of eighteen years, the same to be used at the discretion of my said wife for her own and her children's benefit; and when the youngest of her children is eighteen years old, then the principal to be divided equally among the four...