Llewellyn v. Llewellyn

• Decision Date: 05 February 1907
• Parties: LLEWELLYN, Appellant, v. LLEWELLYN, Respondent
• Court: Missouri Court of Appeals

99 S.W. 809

122 Mo.App. 467

LLEWELLYN, Appellant, v. LLEWELLYN, Respondent

Court of Appeals of Missouri, St. Louis

February 5, 1907

Appeal from Clark Circuit Court.--Hon. E. R. McKee, Judge.

REVERSED AND REMANDED (with directions).

O. S. & G. M. Callihan for appellant.

The quitclaim deed is inoperative under a mere description of the land to transfer said fund or any part of same to defendant even if such had been the intention of grantors in executing it. It conveyed to him only the twenty-four fifty-sixths part of the land inherited by them from John W. Llewellyn and Josephine Waples, and their interest in a fund in the hands of E. P. Spangler as administrator of said John W. Llewellyn arising from a sale in probate of the other part of the John W. Llewellyn land; this latter interest being specifically mentioned and described in the deed. 7 Ency. of Law (2 Ed.) pp. 464, 465, 466, and cases cited; Bisphams Equity (2 Ed.), secs. 307, 308, 320, and cases cited; Compton v. McMahan, 19 Mo.App. 494; Francisco v. Winfield, 161 Mo. 560; Cottman v. Grace, 3 L. R. A. 146; Hope v. Brener, 18 L. R. A. 462; Harrington v. Pier, 50 L. R. A. 311; 3 Pomeroy's Eq. Jurisprudence (2 Ed.), secs. 1159, 1160-1162 and 1164, and cases cited.

Whiteside & Yant and T. L. & L. J. Montgomery for respondent.

The partition decree was rendered May 31, 1904. The youngest child became of age October 12, 1904. The sale to respondent took place October 15, 1904. The motion to rebate the interest of plaintiff, executor, in favor of respondent was filed October 21, 1904. The record, therefore, discloses adverse claims to the proceeds of sale awarded to the plaintiff, executor, appellant here, in the decree, and the statute expressly authorizes the court to hear and determine same in all partition proceedings, which was done in this case. R. S. 1899, sec. 4416; Barkhoefer v. Barkhoefer, 93 Mo.App. 379.

OPINION

GOODE, J.

--This controversy is over a portion of the proceeds realized by the sale in partition of sixty-eight 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 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 five fifty-sixths interest as the heir of her sister, Josephine Waples; that is to say, Martha was entitled to an undivided twelve fifty-sixths part. The father, Jacob W., the brothers, Charles T. and George E., and whole sister, Nancy J. Benning, were each entitled to a five fifty-sixths part as the heirs of Josephine Waples, and her four half-sisters each to an undivided one-sixteenth interest as heirs of John W. Llewellyn and five one-hundred-and-twelfths interest as heirs of Josephine Waples; or, adding those interests to a six fifty-sixths 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 five fifty-sixths 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 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 thirty-five (35), all in township sixty-four (64), range 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 of age, the principal of the proceeds shall be divided equally among the four children, or those of them living at that time--that is, Mary S., Maud M., Jessie Udora and Edith Ann, my four youngest children. I further direct that my executor shall rent all lands conveyed by this will except the land conveyed to Olivia M. Llewellyn and her four children and the lands conveyed to Nancy J. Benning, and receive the proceeds therefrom and apply the same to...