McCracken v. McCracken

• Decision Date: 30 April 1878
• Citation: 67 Mo. 590
• Parties: MCCRACKEN v. MCCRACKEN, Appellant.
• Court: Missouri Supreme Court

67 Mo. 590

MCCRACKEN

v.MCCRACKEN, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Polk Circuit Court.--HON. R. W. FYAN, Judge.

John D. Abbe and Waldo P. Johnson for appellant.

F. S. Heffernan for respondents.

HOUGH, J.

This was an action of ejectment instituted in March, 1872, in which the plaintiffs had judgment. The answer of the defendant was a general denial only. The plaintiffs claimed as pretermitted heirs of their father, Thomas McCracken, deceased. The defendant claimed under the following clause of the last will of said McCracken: “I do give and bequeath to my son Joseph C. McCracken my land, containing one hundred and fifty acres, to be his absolute property after the death of my wife, Elizabeth, conditioned that my son Joseph C. McCracken shall support my son Miles McCracken during his natural life.” Defendant also claimed title by adverse possession. Thomas McCracken died in 1859, and his widow, Elizabeth, died in 1870. Testimony was admitted, subject to objection, which was afterwards excluded by the court, to the effect that defendant had lived on the land with his father for some years previous to his father's death; had controlled and managed the farm long prior to the death of his father; that defendant was forty-three years old; that when he was twenty-one years old his father had told defendant to take possession of the farm and use it; that the widow lived on the farm with defendant till her death in 1870; that he took care of his parents till their respective deaths; that he took care of his brother Miles McCracken, mentioned in the will, till the death of said Miles McCracken; that when Thomas McCracken died defendant administered on his estate; that each of the children of said Thomas McCracken had received some property from their father; that after the death of the father the defendant inclosed and put into cultivation eighty acres of the land in controversy, and expended $1,500 in the erection of a house on it. So much of this evidence as related to the advancements made to the heirs and the improvements made by the defendant was inadmissible under the general issue, and was properly excluded. To be made available, in this action, for any purpose, these facts should have been pleaded.

As the defendant was in possession under his father until his death, and as he claimed title under the will after his death, he had no possession which could be considered as adverse to the plaintiffs until after the death of his mother in 1870.

That the plaintiffs are pretermitted heirs is conceded. It is urged, however, by the counsel for the defendant that pretermitted heirs cannot maintain ejectment, but must proceed under the 47th section of the Statute of Wills, or by bill in equity, for contribution. Waiving the fact that this objection should have been presented by the answer, and cannot be made for the first time in this court, we may remark...