Mockbee v. Grooms

• Decision Date: 15 August 1923
• Docket Number: No. 23581.,23581.
• Parties: MOCKBEE et al. v. GROOMS et al.
• Court: Missouri Supreme Court

254 S.W. 170

300 Mo. 446

MOCKBEE et al. v. GROOMS et al.

No. 23581.

Supreme Court of Missouri, Division No. 1.

August 15, 1923.

Rehearing Denied August 15, 1923.

Appeal from. Circuit Court, Jackson County.; Willard P. Hall, Judge.

Suit by Cuthbert Mockbee and others against Tarvin, C. Grooms, Alice Stout, and others. From the decree rendered, defendants Stout and another appeal. Affirmed.

Moore, Smith, Aughinbaugh & Ault and A. F. Evans, all of Kansas City, for appellants.

Montgomery & Rucker, of Sedalia, for respondents Mockbee and others.

Wilkinson, Wilkinson & Dabbs, of Kansas City, for respondents Grooms and others.

SMALL, C.

I. Suit to partition three tracts of land, 40 acres, 10.17 acres, and 5.87 acres in said county near Kansas City.

In their petition, plaintiffs alleged: That they and certain of the defendants are the heirs of one Reuben Mockbee, deceased, who owned said property at the time of his death, died intestate, without children, but left Sarah Mockbee (afterwards Sarah J. Searcy), as his widow. That she elected to take half of said property in lieu of dower, and that she died testate, devising her interest in said property to the heirs of said Reuben Mockbee, deceased. That by reason of the premises the title to said property is vested in plaintiffs and said defendants. That three of the defendants, to wit, Allie Stout and Lenora Davenport, children, and William Christopher Reynolds, grandson, claim an interest in said real estate, as the heirs of said Sarah J. Seamy, but have no interest therein, and are made parties so the court may determine their interest.

Defendants flied motion to require plains to elect whether they would claim said property as heirs of said Mockbee, or as deyisses of said Sarah I. Seamy, which the court overruled. They then filed answers, putting the allegations of the petition in issue, asserting title in themselves by a counterclaim, and praying the court to adjudge them to be the owners of said property. The reply put the new matter in the answers in issue.

At the time of his death in December, 1878, Reuben Mockbee, owned the land in question. He and his wife, Sarah J., at that time resided thereon as their homestead. He died intestate, without descendants, leaving his widow and several brothers and sisters and their descendants, as his heirs, under whom plaintiffs claim. His widow married Christopher Reed Seamy, and duly elected to take half of the real estate left by her former husband, Mockbee, subject to the payment of his debts, in lieu of dower therein. She married said Seamy prior to the 19th of September, 1882. She resided upon said property as her home from the time of the death of her first husband, and after her marriage to Searcy, continuously until her death in October, 1916. She left two children by her second husband surviving her, defendants Lenora A. Davenport and Allie Stout, and William Christopher Reynolds, her grandson, and only child of her deceased daughter, Sarah Quintiller Reynolds. Resides her interest in the land in controversy, Mrs. Seamy owned other lands in the neighborhood, a portion of which she acquired at the administrator's sale of other lands of her deceased husband, Mockbee. Mrs. Searcy died testate, leaving a will in words and figures as follows:

"I, Sarah J. Searcy, of Jackson County, State of Missouri, being now in good health and strength of body and mind, but sensible to the uncertainty of life and desiring to mane disposition of my property and affairs while in health and strength, do hereby make, publish and declare the following to be my last will and testament, hereby revoking and cancelling all other or former wills by me at any time made.

"First. I direct the payment of all my just debts and funeral expenses.

"Second. I bequeath to my two daughters, Allie Stout and Lenorah Davenport, all my household goods, horse, cow, chickens and other personal property in and about the premises occupied by me as my home in Raytown, Missouri, which a may own or be possessed at my death; and I direct that my two daughters divide such personal property equally and in any way satisfactory to both.

"Third. I devise unto my daughter, Allie Stout, and unto her husband, during each of their lives, all of my West farm, save and excepting therefrom the twenty acres purchased from James H. and Mary T. Arnold, the twenty acres purchased from Jacob and Mary D. Crouse, said twenty acre tracts being known and designated as the Arnold Twenty and the Crouse Twenty; and also excepting out of my West farm a strip of ground twenty feet wide along the East side of my West farm commencing twenty feet West of the Southeast corner of the Arnold. Twenty acres and extending South along the East side of the twenty acres left me by my father to the Country road, which said Arnold twenty-acres, Crouse twenty acres and the twenty feet strip, all as above described, I hereinafter bequeath to my grandson, William Christopher, son of my deceased daughter, Sarah Quintiller. West form, with the excepted Arnold twenty acres, Crouse twenty acres and the twenty foot strip, will therefore have remaining the twenty acres purchased from William Cocks lying immediately west of the Crouse acres, the twenty acres purchased from Bettie Brusau lying immediately South of the Crouse twenty acres, and the twenty acres, except the twenty foot strip along the East side, lying immediately South of the Arnold twenty acres left to me by my father.

"After the death of both my daughter, Allie, and her husband, I direct that the real estate above devised to them for their lives shall be sold by my Executor to the best advantage and for the best price obtainable and the proceeds of such sale deposited with the Pioneer Trust Company of Kansas City, `Missouri, there to remain and draw interest, compounded; at the rate of three per cent. per annum; and at the time when the youngest child of my daughter, Allie Stout, whether living at this time or to be hereafter born, shall have attained the age of twenty-five years, I direct that ell such proceeds, with accrued interest, shall be equally divided between all the children of my daughter, Allie Stout, who may be living at the time her youngest child attains the age of twenty-five years. In event all of the children of my daughter, Allie Stout, are not living at the time her youngest child attains the age of twenty-five years, then it is my direction that if such deceased child or children, of my daughter, Allie Stout, have living children, that such child, or children, of my daughter Allie's children shall receive an equal division of such portion of the money so deposited as would have gone otherwise to his or their father or mother. In eventall the children of my daughter, Allie Stout, shall have died before the youngest child attains the age of twenty-five years and there be no living children of such children at that time, then I direct that the proceeds shall become the property of the children of my daughter, Lenorah Davenport, and divided between them as directed in Paragraph Four next following. In the event of the death of the youngest or last born child of my daughter, Allie Stout, before attaining the age of twenty-five years, the child next oldest shall he considered the youngest child; and, in the event of his death before attaining the age of twenty-five years, the child next older than ha shall be considered the youngest child and so on, it being my intention and desire that none of the money so deposited shall be distributed or disbursed until such time as all of the living children of my daughter, Allie Stout, shall have attained the age of twenty-five years, and at that time the money shall he distributed as above provided.

"Fourth. I devise and bequeath unto my daughter, Lenorah Davenport, during her natural life, my North farm consisting of abort seventy-five acres, save and excepting therefrom an eight acre strip extending from North to South along the entire east line of said farm, which I hereinafter bequeath and devise unto my grandson, William Christopher, the son of my deceased daughter, Sarah Quintiller. My North farm, with the above excepted eight acre strip taken therefrom, will be the forty acres purchased from the Mockbee estate, less the eight acre strip above referred to, the twenty acres purchased from John Cocks ad. joining said forty acres upon the west, and tilt fourteen acres purchased from John Cocks lying immediately South of said twenty fierce. After the death of my daughter, Lenoreh, I direct that the reel estate above devised to her for her life shall be sold by my executor to the best advantage and for the best price obtainable, and the proceeds of such sale deposited with the Pioneer Trust Company of Kansas City, Missouri, there to remain and to draw interest, compounded, at the rate of three per cent. per annum; and at the time when the youngest child of my daughter, Lenorah Davenport, whether living at this time or to be hereafter born, shall have attained the age of twenty-five years, 1 direct that all such proceeds with accrued interest, shall be equally divided between all of the children of my daughter, Lenorah Davenport, who may be living at the time her youngest child attains the age of twenty-five years. In event all of the children of my daughter, Lenorah Davenport, are hot living at the time her youngest child attains the age of twenty-five years, then it is my direction that if such deceased child, or children, of my daughter Lenorah Davenport, having living children, that such child, or children, of my daughter, Lenorah's children shall receive an equal division of such portion of the money so deposited as would have gone otherwise to his or their father or mother. In event all the children of my daughter, Lenorah Davenport, shall have died before the youngest attains the age of twenty-five years and there be no living children of such children at that time,...