Northcutt v. McAllister

• Decision Date: 05 March 1923
• Docket Number: No. 22539.,22539.
• Citation: 297 Mo. 475,249 S.W. 398
• Parties: NORTHCUTT et al. v. McALLISTER et al.
• Court: Missouri Supreme Court

249 S.W. 398

297 Mo. 475

NORTHCUTT et al. v. McALLISTER et al.

No. 22539.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

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

Suit to quiet title and for partition by Nannie J. Northcutt and another, against Willie M. McAllister and others. From a decree for plaintiffs, the defendants appeal. Reversed and remanded.

McBaine & Clark, of Columbia, for appellants.

Harris & Price, Jas. C. Gillespy, and Jas. E. Boggs, all of Columbia, for respondents.

JAMES T. BLAIR, J.

This is an appeal from the Boone circuit court, on change of venue, in a suit to quiet title and for partition of 80 acres of land in Cooper county. The construction of the will of Stephen D. Pettus, who is the common source of title, and a plea of res adjudicata give rise to the questions in the case. Respondents Nannie J. Northcutt and Eva L. Eager are, respectively, daughter and granddaughter of Stephen D. Pettus. Appellants Willie Mae McAllister, Elizabeth L. Proctor,, and Frances D. Patterson are sisters and great-granddaughters of Stephen D. Pettus. The appellants Sutton are half-brothers and half-sister of the first-named appellants.

On the trial it was stipulated that in 1874 Stephen D. Pettus owned 200 acres of Cooper county which included the tract in suit; that in 1874 and a short time before his death, Stephen D. Pettus, then very old but of sound mind, executed his will, which, so far as is now material, is as follows:

"Second. I give unto my daughter, Nannie J. McBaine, my bottom farm, that lays in if both die to my other heirs. I also give these two children last named, all my money and other property that is left, after my grandson, George Sutton, gets one thousand dollars; also my bed and bureau.

"Fourth. I give unto my grandson, George Sutton (named above) one thousand dollars, and I give unto my grandchildren, George, Burilla and Mary Sutton, the following described tract of land [here follows description], being 209 acres in sections 4 and 9, township 48, range 15, and a part of survey No. 2870, if either of these children die, the surviving ones to have it, and if all die then my other heirs to have it.

"Fifth. I give unto Jim Saunders, Bob, Rachel, Francis and Laura Belle Williams, colored children, sons and daughters of Julia Williams, colored, the following tract of land lying in Cooper county, all my tract of land not given to Mary Sutton's children above named, being a part of sections 4 and 9, township 48, range 15, supposed to contain 115 acres, be the same more or less, said tract is a part of survey No. 2870."

Nannie J. McBaine, named in the will is the respondent Nannie J. Northcutt. Eva Pettus is the respondent Eva L. Eager. Fannie (or Frances) B. Connelly was the daughter of Nannie S. Northcutt by a former marriage. She died in childhood, very soon after the death of the testator. Ida Pettus died without issue after the death of the testator. George, Burilla, and Mary Sutton, named in the fourth paragraph of the will, were the only children of testator's deceased daughter Mary. Eight years after the death of the testator, George Sutton died without issue. Burilla Sutton married Wat Hickam and became the mother of appellants Willie Mae McAllister, Elizabeth L. Proctor and Frances D. Patterson (or Cochran). Burilla (Sutton) Hickam is now dead and died prior to the death of her sister Mary Sutton. Mary Sutton was of unsound mind at the time of the testator's death and was later placed under the guardianship of John L. Ballenger and died without issue about 1918. After the death of testator, William T. Sutton, the father of George Sutton, Burilla Sutton, and Mary Sutton, married a second time, and the appellants Sutton are the fruit of this marriage. They claim as heirs of Mary Sutton. The devisees named in the will were the only living descendants of the testator and all survived him.

Mrs. Eager testified she was about eight years old at the time her grandfather died, and that she and her now deceased twin sister Ida were living in his home; that he was quite old and had been sick about two months when a lawyer was sent for to draft his will; that testator could not sit up; that she had a belief and fear that her grandfather was about to die; that he seemed to think he was about to "leave us"; that she was not in the room when the will was written.

In 1900 Mary Sutton's guardian, Ballenger, began a partition suit against Burilla (Sutton) Hickam and her husband to partition the 200-acre tract described in paragraph 4 of the will. George Sutton, as stated, had previously died without issue. The land was partitioned in kind, and the tract here involved was set off to Mary Sutton and the remainder to Burilla (Sutton) Hickam. Respondents were not parties to that suit. Burilla (Sutton) Hickam sold the tract set off to her to Sanford F. Conley. In 1904 (it is further stipulated) "Sanford F. Conley, who was at that time owner of the land set off to Burilla Hickam in the partition suit" just referred to, brought a suit against respondent Nannie J. Northcutt and her husband, respondent Eva Pettus (now Eager), and Mary Sutton, to try title to the lands set off to Burilla (Sutton) Hickam in the partition suit and determine the interest of the defendants therein. This suit was prosecuted to final judgment upon personal service. All defendants in that case except Mary Sutton made default. Ballenger, as guardian of Mary Sutton, filed an answer. The court adjudged that the defendants had no title or interest in the land under the will of Stephen D. Pettus. The pleadings, proceedings, and judgments in these cases are in. evidence.

The claims of respondents in this case are stated in their petition as follows:

"Plaintiffs further state that by the terms of said will said testator intended that said lands should remain in his family and descend to his heirs, so far as it was possible for him to so devise. Plaintiffs, however, state that said will properly construed so as to give effect to the testator's intention operates either: First, to create in said George, Burilla, and Mary Sutton a life estate with survivorship, and a vested remainder in the other heirs of the testator upon the death, of the survivor; or second, to create a life estate in the said George, Burilla and Mary Sutton with survivorship contingent on the death of either without issue and with remainder over to the other heirs of the testator contingent on the death of the survivor without issue; or third, to create in said George, Burilla, and Mary Sutton a fee conditional upon their having issue, and subject to be defeated upon their death without issue, with a limitation over on the death of any one of them without issue to the other heirs of the testator by way of executory devise."

The positions of appellants are: (1) That paragraph 4 of the will gave the 200 acres therein described to George, Burilla, and Mary Sutton as tenants in common, and that the provisions in the will as to the disposition of the land, in the event of their death, referred to their death in the lifetime of the testator"; (2) that the suit to try, ascertain, and determine title instituted and prosecuted to judgment by Conley in 1904, from which no appeal was taken, constitutes a bar to the rights respondents now assert.

I. When the testator came to make his will he had three groups of descendants to consider. One consisted of his daughter Nannie J. and her daughter Fannie or Frances; Ida and Eva, the twin daughters of William Pettus, deceased, the only son of testator, constituted the second; George, Burilla, and Mary Sutton, the only children of testator's deceased daughter Mary formed the third. By the second paragraph of the will testator expressly gave his daughter Nannie J. a life estate in his bottom farm, with remainder to her daughter with a limitation over to his other heirs, "if she" (the daughter) "should die without children." In the next paragraph he gives to Ebbe (Eva) And Ida Pettus a $5,000 note, and adds: "If either of these children die, then the surviving to have all, and if both die to my other heirs." In the next paragraph he devises the 200 acres to George, Burilla, and Mary, and provides that, "if either of these children die, the surviving ones to have it, and if all die then my other heirs to have it."

The intent of the testator is the tiling to be sought, according to both the adjudged cases and the statute: Around the word "if' the controversy centers. This court has defined it heretofore:

"`If' may be a small word, but all know its meaning, and instead of a more formal phrase it is used in common language to express condition or limitation; and in giving it this meaning, I...