Morris v. Stephenson

• Decision Date: 27 January 1908
• Citation: 107 S.W. 449,128 Mo.App. 338
• Parties: GOUV. MORRIS et al., Plaintiffs in error, v. GEORGE S. STEPHENSON et al., Defendants in error
• Court: Kansas Court of Appeals

107 S.W. 449

128 Mo.App. 338

GOUV. MORRIS et al., Plaintiffs in error, v. GEORGE S. STEPHENSON et al., Defendants in error

Court of Appeals of Missouri, Kansas City

January 27, 1908

Error to Holt Circuit Court.--Hon. William C. Ellison, Judge.

AFFIRMED.

Cause affirmed.

L. H Finney for plaintiffs in error.

(1) The court erred in rendering judgment for the defendants and in overruling the plaintiffs' motion for a new trial holding as it did that the language of the thirteenth clause of the will effected an equitable conversion of the real estate therein mentioned into personal property and thus exempting it from the lien of plaintiffs in error's judgment. Eneberg v. Carter, 98 Mo. 647. (2) A tenant in common who collects rent of the common property is liable to his cotenant for such tenant's proportionate share. Bates v. Hamilton, 144 Mo. 1. The remedy is by suit in equity. Id.

Frank Petree, A. Van Buskirk and Ivan Blair for respondents.

(1) Under the rule invoked by the doctrine of equitable conversion, if the direction to the executor to sell real estate and distribute the proceeds as personalty is imperative, and vests no discretion in the executor as to whether he shall sell or not, it operates immediately upon the death of the testator, and therefore determines the devolution of the property to the heirs, devisees or executors, not according to the character in which the testator left it, but according to that into which he has directed it to be converted. 2 Woerner, Am. Law of Adm., sec 342; 7 A. & E. Enc. Law (2 Ed.), pp. 465 et seq.; 9 Cyc. p 837, par. 9; Francisco v. Wingfield, 161 Mo. 556; Compton v. McMahan, 19 Mo.App. 494; Roland v. Miller, 10 Pa. 47; Cook's Ex'r v. Cook's Adm'r, 20 N.J.Eq. 375; Dutton v. Pugh, 45 N.J.Eq. 456; Crane v. Bolles, 49 N.J.Eq. 373; Effinger v. Hall, 81 Va. 84; Dodge v. Williams, 46 Wis. 70; Hammond v. Putnam, 110 Mass. 232; Baker v. Copenbarger, 15 Ill. 103; Brolasky v. Gally, 51 Pa. 509. (2) Money directed to be turned into land descends to the heirs; and land directed to be turned into money goes to the personal representatives. Bispham Eq. (4 Ed.), sec. 314; 7 Am. & Eng. Enc. Law, p. 475; 9 Cyc. p. 851; 2 Woerner Am. Law, sec. 342; Francisco v. Wingfield, 161 Mo. 557; Donaldson v. Allen, 182 Mo. 647; Hammond v. Putnam, 110 Mass. 232. (3) The rents and profits of real estate may by the will of the deceased owner be made assets with which the executor or administrator is chargeable, either by a devise to him, or by a power of sale, which operates as an immediate conversion of real estate into personalty. 11 A. & E. Enc. Law, p. 1210; Ingram v. Mackey, cited same page; 2 Woerner, Am. Law of Adm., sec. 513. (4) Where land has been equitably converted into money, a judgment against the beneficiary does not create any lien upon his interest in the land, nor is his interest subject to sale on execution. 7 A. & E. Enc. Law (2 Ed.), p. 476; 9 Cyc. p. 851, par. 6, and cases cited; Baker v. Copenbarger, 15 Ill. 103; Jones v. Caldwell, 97 Pa. 43, and cases cited; Brolasky v. Gally, 51 Pa. 509; Evans Ap., 63 Pa. 183; Roland v. Miller, 10 Pa. 47. (5) In the construction of a will, the court always starts with the presumption that the testator intended to dispose of his whole estate. Watson v. Watson, 110 Mo. 171; Robards v. Brown, 167 Mo. 457; Willard v. Darrah, 168 Mo. 670; Simmons v. Cabanne, 177 Mo. 353; 30 A. & E. Enc. Law (2 Ed.), p. 668.

OPINION

BROADDUS, P. J.

--This is a suit in equity, wherein plaintiffs seek to recover from the defendants a one-fifth share of the rents and profits of a quarter section of land situated in Holt county, Missouri, for the years of 1901 and 1902. The said defendants all except Beulah Stephenson, being heirs at law of John F. Stephenson, who died in January, 1901, possessed of said land, Beulah being a grandchild, and the plaintiffs being the judgment creditors, of Robert S. Stephenson, who claimed to have purchased under execution sale his interest in the tract of land mentioned and received a deed therefor in April, 1901. The defendant George S. Stephenson, the executor of the will of the deceased, collected the rents of the premises for said two years which amounted in value to $ 643.27.

The deceased by his will disposed of all of his real estate except the land in dispute and provided for certain specific bequests to be paid out of his personal property. By section 13 of his will he provided for the sale of the land in these words: ". . . be sold at private sale by my executor hereinafter named, for the best price obtainable and the proceeds derived therefrom together with residue and the remainder of my estate less expenses be divided equally between my children George S.; Robert S.; Bertha L.; Dora; and Teressa; and my grandchild Beulah, who is a daughter of my daughter Teressa, equally share and share alike." The will was admitted to probate January 22, 1901, and on March 18, 1901, an execution issued from the circuit court of Holt county on a judgment of said court against Robert S. Stephenson, a son of the deceased and one of the beneficiaries named in clause 13 of said will and was levied on his interest in the real estate mentioned in said clause. At the execution sale the plaintiffs became the purchasers and a sheriff's deed was made to them conveying the interest of said Robert S. Stephenson in said real estate.

On March 8, 1901, Robert S. sold and assigned all his interest of every kind and character in the estate of the deceased to M. A. Stephenson and company. George S. the executor took possession of the land and collected the rent for the years of 1901 and 1902 and paid it to the beneficiaries named in said clause of the will except the one-sixth share of Robert S. which he paid to his assignee, M. A. Stephenson. The judgment and finding of the court were for the defendants from which plaintiffs appealed.

The plaintiffs contend that under the sheriff's deed purporting to convey to them the interest of Robert S. in said land they are entitled to one-fifth of the rents for the two years between the death of the testator and the sale by the executor. They assert that during these two years the land was undisposed of by the will and was vested in the five heirs of the deceased by inheritance. The defendants contend that the will disposed of the whole of the testator's property; that the said clause of the will operated upon the death of the testator as an immediate conversion of the real estate and by necessary implication immediately vested the same in the executor to be disposed of by him as personalty for the beneficiaries named; and that consequently Robert S. took no interest in said land by inheritance, and that plaintiffs acquired no interest in the said land by their sheriff's deed.

The plaintiffs in support of their theory, rely upon Eneberg v. Carter, 98 Mo. 647, 12 S.W. 522, from which we quote the following: "A will devising an estate to the heirs, and empowering the executor to sell the real estate as soon as could be done without loss, contains no express devise in fee to the executor and none by implication, and the fee in such case remains in the heirs at law, both by the devise and by the Statute of Decents, until divested by sale by the executor under the terms of the will. Until such sale no conversion of the estate into money occurs, and the interest of the heir is subject to sale under execution."

The provisions of the will in the case under consideration are somewhat different from the one referred to, the land not being devised to...