McClure v. Baker

• Decision Date: 01 December 1919
• Docket Number: No. 13387.,13387.
• Citation: 216 S.W. 1018
• Parties: McCLURE v. BAKER et al.
• Court: Missouri Court of Appeals

216 S.W. 1018

McCLURE v. BAKER et al.

No. 13387.

Kansas City Court of Appeals. Missouri.

December 1, 1919.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

"Not to be officially published."

Suit by Bettie K. McClure against Frank T. Baker, executor of the estate of William Ellis, deceased, and another. Judgment for plaintiff,, and defendants appeal. Affirmed.

J. R. Baker, of Fulton, for appellants.

N. T. Cave, of Fulton, for respondent.

BLAND, J.

William Ellis, Barbara E. Jamison, and Amanda R. Bedsworth were brother and sisters; each residing on a separate and adjoining farm in Callaway county, Mo. All were married, but had no children. William Ellis died September 1, 1902, seized of 160 acres of land, upon which he lived. By his will he bequeathed the land to his wife for life, or while she remained a widow; at her death the farm was to be sold, and one-half of the proceeds "shall be subject to her will, to give, devise and bequeath as she desires;" the other half (less $100) was to be divided equally between his two sisters, Barbara E. Jamison and Amanda R. Bedsworth, and "if either of said sisters be not living, the surviving sister shall receive what is bequeathed to both." Upon his decease Frank T. Baker was appointed executor of the will. On February 1, 1910, the two sisters, together with their husbands, entered into a contract reciting that one-half of the proceeds of the sale of deceased's real estate, less $100 was bequeathed to Amanda R. Bedsworth and Barbara E. Jamison, and provided:

"Now be agreed by said parties that if the said Amanda R. Bedsworth should die before she comes into possession of described property, that her part shall go to and become a part of her husband's, Thomas B. Bedsworth, estate or in case the said Barbara E. Jamison should die before she comes into possession of said property, that her part shall go to and become a part of her husband J. Lee Jamison's estate."

On July 22, 1911, Barbara E. Jamison died testate leaving practically all her property to her husband. Her estate was administered upon, and the administrator discharged in due time. On July 23, 1912, J. Lee Jamison, her husband, died testate. Under his will his niece, the plaintiff, Bettie K. McClure, was given all of his property after the payment of certain legacies mentioned ha the will. J. Lee Jamison's estate was administered upon, and final settlement made, and the executor discharged prior to the filing of this suit. In 1918 Susan Ellis, the widow of William Ellis died, leaving a will in which defendant Frank T. Baker was appointed her executor. Baker, as executor of William Ellis' estate, upon Mrs. Ellis' death, sold the land, and on November 23, 1918, made his final settlement as such executor in the probate court of Callaway county. This settlement showed that he had on hand the sum of $5,338.45, being the proceeds of the sale of the land. The probate court ordered that the money be distributed as follows: To Frank T. Baker, executor of the estate of Susan Ellis, $2,669.22; to J. V. E. Humphries, $100; and to Amanda R. Bedsworth $2,569.22. No objections were filed in the probate court to this order of distribution by any one, nor was any appeal taken. However, on the day prior to the one on which the order of distribution was made, plaintiff filed this suit in the circuit court of Callaway county. On the day suit was filed summons was served upon defendant Frank T. Baker in his capacity as executor of the will of William Ellis. The petition alleged that plaintiff was entitled to a one-fourth interest in the proceeds of the sale of the real estate, and asked judgment in the sum of $1,400, which plaintiff alleged to be the amount due her. Defendant filed his answer, stating that he had the sum of $5,338.45 in his possession, derived from the sale of the land; that the probate court had ordered him to pay out said money in the manner described above; that no appeal was taken from the judgment of the probate court approving the settlement, or from the order of distribution, and that said order had become binding on all persons interested in said estate; that upon the day upon which summons was served upon him lit came to his knowledge that plaintiff was claiming a one-fourth interest in the proceeds of the farm, and that in consequence he was continuing to hold in his possession an undivided one-fourth of the sum, being one-half the amount he was ordered to pay Amanda R. Bedsworth. He further stated that he was not interested in the controversy; that Amanda R. Bedsworth was also claiming the amount in his hands, which he had deposited with the clerk of the court; and asked that she and plaintiff be required to interplead. Amanda R. Bedsworth filed her answer, alleging that the judgment or order of distribution in the probate court was res adjudicata, and that the agreement of February 1, 1910, between Barbara E. Jamison and her husband and Amanda R. Bedsworth and her husband, was void, and claimed that under the provisions of the will of William Ellis, deceased, she was entitled to the fund. The court found in favor of plaintiff, and defendant has appealed.

Defendant's first point is that the estate created by the will of William Ellis in favor of Amanda R. Bedsworth and Barbara E. Jamison was a contingent remainder, and not such an estate as could be...