McMillan v. Farrow

• Decision Date: 08 June 1897
• Citation: 141 Mo. 55,41 S.W. 890
• Parties: McMILLAN v. FARROW.
• Court: Missouri Supreme Court

41 S.W. 890

141 Mo. 55

McMILLAN v. FARROW.

Supreme Court of Missouri, Division No. 2.

June 8, 1897.

WILLS — CONSTRUCTION — NATURE OF ESTATE.

Testator gave all his property to his wife, to hold and enjoy absolutely, with full power to dispose

of all or any part thereof, and declared that in case she died before his death, or if she survived him, whatever of "my" property remains undisposed of at her death "I give and bequeath to M. and to his heirs, absolutely in fee," and that if M. died without children, or before testator's wife, he gave whatever remained of "my" estate to his brother's children, absolutely. Held, that the wife took a life estate only.

Appeal from circuit court, Crawford county; C. C. Bland, Judge.

Action by T. J. McMillan, administrator of the estate of Alexander L. McMullin, deceased, against H. P. Farrow, administrator of the estate of Sarah Ann Craig, deceased. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. U. Farrow, F. H. Farris, and J. T. Woodruff, for appellant. Robert Walker, for respondent.

BURGESS, J.

This suit is prosecuted by plaintiff as administrator of the estate of Alexander L. McMullin, deceased, against the defendant, H. P. Farrow, as administrator of the estate of Sarah Ann Craig, deceased, formerly Sarah Ann McMullin, widow of said Alexander L. McMullin, for the purpose of obtaining a construction of the last will and testament of said Alexander L. McMullin, deceased, and to determine which of the two administrators is entitled to the possession and control of the notes and choses in action belonging to said Alexander, for the purpose of administration. The court below found in favor of plaintiff, and that said Sarah A. Craig (formerly McMullin), the wife of the testator, took a life estate in all the property owned by the testator at the time of his death, and that Joseph McKinney took the property in remainder; that all the notes and choses in action described in plaintiff's petition were assets belonging to the estate of Alexander L. McMullin, deceased; and that plaintiff was entitled to hold and control the same for the purpose of administration. Defendant appeals.

The will is as follows: "In the name of God, Amen. I, Alexander L. McMullin, of the county of Crawford and state of Missouri, aged seventy-three years, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do therefore make, publish, and declare this to be my last will and testament, that is to say: First. After all my lawful debts are paid and discharged, I give and bequeath all my estate, both real and personal, to my beloved wife, Sarah Ann, to hold and enjoy by her absolutely, with full power and authority to dispose of all or any part thereof at her option. Second. In the event of the death of my said wife prior to my death, or if she survive me, whatever of my property may remain undisposed of at her death I give and bequeath to Joseph McKinney and to his heirs, absolutely and in fee. Third. In the event that if the said Joseph McKinney should die without children, or before the death of my said wife, I give and bequeath whatever remains of my estate, both real and personal, to the children of my brother Madison B. McMullin by his second marriage, and the female children of William N. Clark, absolutely, and to their heirs, in equal parts. In witness whereof, I have hereto set my hand, and affixed my seal, this 6th day of September, A. D. 1883. Alex. L. McMullin. [Seal.]" The will was executed on the 6th day of September, 1883, and was admitted to probate in the probate court of Crawford county on the 8th day of October, 1888. The testator died October 1, 1888, after having reached the advanced age of seventy-eight years. He had accumulated personal property, money, and choses in action amounting to several hundreds of dollars, and was the owner of a large farm in Crawford county of about the same value as his personal property. He left a widow, Sarah A. McMullin, who intermarried with one W. L. Craig. Only two children were born to the testator and his wife, viz. John and Joseph McMullin, both of whom died before their father, without ever having been married. Joseph, however, left an illegitimate son, named Joseph McKinney, who was about two years of age at the time of his father's death, and is the same person mentioned in the will in question. Shortly after the death of his father, Joseph McKinney was taken charge of by the testator and his wife; was kept, maintained, supported, and sent to school by them, as if he were their own child; and was taught to call his foster parents "grandpa" and "grandma." There was no person appointed executor by the will; neither was there any administration on the estate after probate of the will. All of the property left by Alexander L. McMullin, consisting of real estate, chattels, and other personal estate, including notes and choses in action, was taken charge of and managed by Sarah A. McMullin, the widow, in like manner as her own, and by her so...