Price v. Gordon

• Decision Date: 14 February 1941
• Docket Number: 36689
• Citation: 147 S.W.2d 609,347 Mo. 354
• Parties: Hickman Price and Andrew Price v. Emma Gordon and Nell Gordon Parman, Appellants
• Court: Missouri Supreme Court

147 S.W.2d 609

347 Mo. 354

Hickman Price and Andrew Price v. Emma Gordon and Nell Gordon Parman, Appellants

No. 36689

Supreme Court of Missouri

February 14, 1941

Appeal from Boone Circuit Court; Hon. E. L. Alford, Special Judge.

Reversed and remanded (with directions to enter judgment for appellants).

George F. Hollis, Clark, Boggs, Peterson & Becker and Howard B. Lange, Jr. for appellants.

(1) The court erred in refusing to give appellants' requested declaration of law and erred in entering judgment for respondents, because there is no evidence in the record which, under the law, will support a finding and judgment for respondents. Title to the real estate in question passed to respondents' remote grantor under the seventh item of the will of David H. Hickman, deceased. (a) The will should be construed in the light of facts and circumstances as they were known and considered by the testator. Sec. 567, R. S 1929; Gannon v. Pauk, 200 Mo. 75, 98 S.W. 471; Cornet v. Cornet, 248 Mo. 242, 154 S.W. 139; Barnhardt v. McGrew, 319 Mo. 680, 5 S.W.2d 77; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 967; Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885. (b) The will of David M. Hickman and the condition of his estate at the time of the execution of the will of David H Hickman in 1869. (c) The will of David H. Hickman. (d) Since 1869 this will has been construed as devising this real estate to Thomas H. Hickman. Respondents and their predecessors in title having been in peaceful possession of the real estate in question for a period of more than sixty years, there being no evidence to rebut the presumption, it will be presumed that they hold under a valid lost grant. 2 C. J., p. 289; Commodore's Point Term. Co. v Hudnall, 283 F. 150; Williams v. Mitchell, 112 Mo. 300; Brown v. Oldham, 123 Mo. 632; Glasgow v. Mo. Car & Foundry Co., 229 Mo. 597; Waddell v. Chapman, 238 S.W. 481; Jones v. Kirk, 270 Mo. 416. Appellants having exclusive adverse possession of the land at the time of the institution of this suit, partition cannot be maintained by respondents. Keller v. Keller, 338 Mo. 731, 92 S.W. 157; McQuitty v. McQuitty, 332 Mo. 1057, 61 S.W.2d 342; Maston v. Ireland, 8 S.W.2d 900. (2) The court erred in refusing appellants' requested finding of fact No. 1, which requested finding was an agreed stipulated fact. (3) The court erred in refusing appellants' requested findings of fact Nos. 2, 3, 4, 5 and 6, because the same are supported by the evidence in the record, and there is no evidence to support a contrary finding.

Harris, Price & Alexander for respondents.

(1) A deed or grant to A for life with remainder at his death to the children of the grantor operates to vest in the remaindermen a vested remainder in fee which is not defeated by the failure of any child to outlive the life tenant. Dunbar v. Sims, 283 Mo. 356; Hamner v. Edmonds, 36 S.W.2d 929; Evans v. Rankin, 44 S.W.2d 644; Gardner v. Vanlandingham, 69 S.W.2d 947. (2) A deed or grant to a person and his bodily heirs creates a life estate in the first taker with a contingent remainder to the bodily heirs. Schee v. Boone, 295 Mo. 212. (3) Statute of Limitations does not run against contingent remainderman until his title and right to possession is vested in him. Armor v. Frey, 253 Mo. 474. (4) Title to the real estate in question passed to Mary Hickman and her bodily heirs under the item of the will of David H. Hickman. (5) Presumption of lost grant does not apply where the circumstances are consistent with the nonexistence of a grant. Brown v. Oldham, 123 Mo. 621. (6) Respondents are entitled to maintain partition against appellants. (a) Respondents had not been disseized at the time of filing this suit. (b) The court has jurisdiction to decree partition in equitable action, though plaintiff is not in possession. McQuitty v. McQuitty, 61 S.W.2d 342; Schave v. Kallmeyer, 20 S.W.2d 26.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action in partition. The petition is in conventional form. The property involved consists of two improved residence lots located in different subdivisions in the City of Columbia. Plaintiffs alleged that they owned a one-seventh (1/7) interest (1/14 interest each); and that the defendants owned a six-seventh (6/7) interest in the property. Plaintiffs asked partition. Defendants denied that plaintiffs had any interest in the real estate described. The questions presented were whether plaintiffs had an interest in the real estate described, and whether partition would lie in view of agreed facts. A jury was waived and the cause submitted to the court, sitting as a jury. The court found for plaintiffs; determined the interests of the parties as alleged by plaintiffs; found that the property could not be partitioned in kind without great prejudice; and ordered the property sold for the purpose of making partition. After timely motions for a new trial and in arrest of judgment were filed and overruled, defendants appealed.

We have jurisdiction because title to real estate is directly involved. [Pilkington v. Wheat, 330 Mo. 767, 51 S.W.2d 42, 43.] The action is at law. No affirmative equitable relief was requested by any party. [See Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381, 384.] The evidence is largely documentary, but includes an agreed statement of facts and oral testimony about which there is no dispute. Respondent concedes that the facts are not in dispute.

David M. Hickman, a resident of Boone County, died in the year 1851, seized and possessed of certain real estate. By the third subdivision of his will, he provided that his entire estate, subject to certain exceptions, go to his wife and children, "according to the laws of the land." The will further provided that under certain circumstances, as therein provided, his executors were authorized to sell his real estate and invest the amount of the widow's dower in such other real estate as might be selected and agreed upon. The will provided that the real estate so purchased be held and enjoyed by the widow "during her natural life and at her death to descend to all my children, upon the terms named in the third item above." David M. Hickman was survived by his widow and seven children, including Thomas H. Hickman and David H. Hickman.

Various annual settlements, filed by the executors of the estate of David M. Hickman, deceased, recite the amounts arising from the sale of real estate and the amounts of money in which the widow had dower. The settlement, filed in August, 1855, recites: "The widow is entitled to dower in $ 1319.54 of the above amount arising from the sale of land."

Thereafter, the executors, in accordance with the will of David M. Hickman, "invested a portion of the proceeds arising from the sale of said lands, in which the widow was devised a dower interest, in (25 acres of) real estate of which defendants' (appellants') land is a part." The purchase was made in 1856 for a recited consideration of $ 1300. The deed from H. H. Buckner, as grantor, to the executors in their representative capacities, as grantees, among other things provided: "The purchase money hereinabove named being part of the proceeds of lands sold by said executors wherein Cornelia A. Hickman, widow of David M. Hickman, was possessed of dower, is hereby reinvested as provided for in the last will and testament of said David M. Hickman, deceased, for the use and benefit of the widow during her natural life, then to descend according to the provisions of said will." Both respondents and appellants claim a common source of title through the Buckner deed.

After the purchase of the above mentioned real estate, the widow went into possession and remained in possession thereof, and later married one John M. Robinson. She died about the year 1877.

On February 16th and May 14th, 1869, prior to the widow's death, the widow and all seven children of David M. Hickman made conveyances of parts of the lands acquired by the executors from Buckner. Subsequently, and during the year 1869, David H. Hickman, one of the children of David M. Hickman, died testate. The 7th provision of his will provides: "To my brother Thomas H. Hickman, I give a note for $ 2107, executed by him and payable at the death of his mother, being for interest in the homestead of our father David M. Hickman, also $ 2000.00 in . . . Mortgage Bonds, also the residue of my interest in the estate of my father which is in the possession of his widow -- Mrs. Cornelia A. Robinson." By the 13th provision of his will he gave the residue of his estate to his daughter Mary and her bodily heirs. Mary Hickman, his daughter, born about 1866, was his only heir at law.

Appellants claim title as remote grantees of Thomas H. Hickman, alleged devisee, under the 7th provision of said will of David H. Hickman, by lost grant from him, and under the Statute of Limitations. Respondents are brothers and the only children and heirs of Mary Price, nee Hickman, supra. They claim as her bodily heirs, under the 13th provision of the David H. Hickman will, and say that a contingent remainder in fee in a one-seventh (1/7) interest vested in them on the death of their mother. Mary Price died November 11, 1937. Respondents aver that Thomas H. Hickman never claimed the share of David H. Hickman in this property, as a devisee under the will of David H. Hickman, and that David H. Hickman never conveyed or devised his one-seventh (1/7) interest in the property to Thomas H. Hickman.

Respondents' reply expressly alleged that David H. Hickman did not, by the 7th item of his will, devise his one-seventh (1/7) interest to his brother Thomas H. Hickman; "that under a true and proper construction of said will the gift by the testator David H. Hickman to his...