Quail v. Lomas

• Citation: 200 Mo. 674,98 S.W. 617
• Parties: QUAIL v. LOMAS et al.
• Decision Date: 22 December 1906
• Court: United States State Supreme Court of Missouri

98 S.W. 617

200 Mo. 674

QUAIL v. LOMAS et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1906.

1. APPEAL—RECORD—BILL OF EXCEPTIONS— DOCUMENTARY EVIDENCE.

Laws 1903, p. 105, provides that it shall not be necessary for review on appeal or error that any written or printed matter offered in evidence and properly identified and deposited with the clerk to remain in his custody until after the determination of the cause in the appellate court, shall be copied and set forth in the bill of exceptions provided that it contain a direction of the clerk to copy the same and the same be so copied and sent up to the appellate court. Held, that where a bill of exceptions referred to deeds received in evidence by the name of the grantor and grantee and date of execution and date of acknowledgment and contained a direction of the clerk to copy, and the same were copied into the record sent up to the appellate court, they were properly a part of the record although it did not appear that they had been filed and left with the clerk to remain in his custody until after the determination of the appeal.

2. DOWER—STATUTORY ESTATE SUBSTITUTED FOR DOWER—RIGHTS OF WIDOW.

Rev. St. 1899, § 3621, provides that the commissioners appointed to set out the homestead of a widow and minor children shall, where the right of dower also exists, first set out the homestead, and, from the residue of the estate of the deceased, set out the dower of the widow, and that the amount of dower shall be diminished by the amount of interest of the widow in the homestead, and that, in case the homestead interest of the widow equals or exceeds one-third of all the real estate of the deceased husband, no dower shall be assigned. Section 2944 provides that, when a husband dies leaving a child or children, the widow may, in lieu of dower of the one-third part of the lands whereof the husband died seised, elect to be endowed absolutely in the lands equal to the share of a child. Held, that no deduction on account of homestead is to be made where a widow elects to take a child's share.

3. HOMESTEAD—PARTITION DURING MINORITY OF CHILDREN.

As between a widow and her minor children, neither the widow nor her grantee is entitled to partition of the homestead during the minority of the children.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Suit by Robert Quail against Dicy N. Lomas and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

Rechow & Pufahl, for appellants. O. M. Townsend and C. H. Skinker, for respondent.

GANTT, J.

This is a suit for partition of the lands of which John H. Lomas died seised and possessed in Polk county on the 13th day of August, 1900. Said Lomas died intestate and left a widow, Dicy N. Lomas, and six children, Bertha C., John A., Ellen G., Jesse C., Anne and Carl Lomas, all minors. On the 31st day of August, 1900, letters of administration were granted by the probate court of Polk county to the widow, Dicy Lomas, who duly qualified and took charge of the estate. On the 26th day of November, 1901, said widow made her election to take a child's part of said estate in lieu of dower, and duly acknowledged the same and it was recorded November 27, 1901. On the 26th of November, 1901, said widow filed her application in the probate court of Polk county to have a homestead set off to her and her said minor children, and in due form and time commissioners were appointed who went on the lands and set apart 160 acres of the value of $1,500 as and for said homestead. John N. Lomas owned the following lands in Polk county at the date of his death, to wit: N. E. ¼ and N. E. ¼ of the N. W. ¼ and E. ½ of S. E. ¼ and N. W. ¼ of S. E. ¼ and five acres out of the N. E. corner of the S. E. ¼ of the N. W. ¼ all in section 24, township 32, range 24, and W. ½ of the S. W. ¼ section 19, township 32, range 23, about 340 acres. Out of this tract the commissioners set apart the N.½ of the N. E. ¼ and the S. W. ¼ of the N. E. ¼, less five acres, on the east side thereof, and the N. E. ¼ of the N. W. ¼ and five acres out of the N. E. corner of the S. E. ¼ of the N. W. ¼ all in section 23, township 32, range 24. On the 6th day of June, 1902, the widow Dicy N. Lomas, borrowed $750 from the plaintiff, and gave her note therefor, payable two years after the date thereof, and bearing interest at the rate of 8 per cent. per annum, and on the same day made, executed, and delivered a deed of trust to Jesse Wiley, as trustee, to secure the plaintiff the payment of said note. By said deed of trust the said Dicy Lomas conveyed the entire tract of land above described of which the said John H. Lomas died seised to secure the payment of said note. Afterwards, on account of the default of the said Dicy to pay said note and comply with the conditions of said deed of trust, the trustee therein, Jesse Wiley, proceeded to advertise, and did advertise and sell, the whole of said real estate at public auction at the courthouse door at Bolivar, the county seat of Polk county, and at said sale the plaintiff being the highest bidder therefor the same was struck off and sold to him by the said trustee, and on the 12th day of September 1903, the trustee executed his trustee's deed conveying all of said real estate to the plaintiff. On the part of the defendants the evidence tended to show that the entire tract of land was worth from $3,000 to $3,500 at the time the homestead was set off to the widow and children, and that the homestead tract of 160 acres was valued at $1,500. After the death of her husband, the widow built a two-room house on the farm, and put up some wire fences around the tract. The plaintiff claiming to have acquired, by virtue of his deed of trust from the widow and his trustee's deed foreclosing the same, an undivided one-seventh interest in the said lands, on the 20th of October, 1903, began this suit for partition of the said premises. At the November term, 1903, O. M. Townsend, Esq., was appointed guardian ad litem. Upon the motion of Mr. Townsend, however, showing to the court that A. C. Fink was the regularly appointed and duly qualified guardian and curator of the said minors, and upon the voluntary appearance of the said Fink, he was permitted to become a party to the suit and to defend the interest of the said minors. The widow filed a separate demurrer to the plaintiff's petition, which was overruled, and thereafter she filed no further pleading in the cause. The minors, by their guardian ad litem and curator of their estate for their separate answer, admitted that their father died seised of the lands described in the petition, leaving Dicy N. Lomas as his widow and the said minors as his only children and heirs at law. They admitted that the land described in the plaintiff's petition as a homestead had been set off to the said widow and children, and that the minor defendants were in possession thereof and living thereon. Further answering, they stated that they had no knowledge of any transaction between the plaintiff and the widow, Dicy Lomas, but that they were not interested in or affected by any such transactions, if any such there were. "Further answering, defendants state that all of the land described in plaintiff's petition as being owned by said John H. Lomas at the time of his death did not exceed in value the sum of $3,000, and that the commissioners appointed by the probate court to set out said homestead and widow's dower, if she was entitled to any, valued all said lands at $3,000 and set out the homestead valued at $1,500 to the said widow and these minor defendants, and did not set out any dower to said widow because she was not entitled to any dower therein and these defendants deny that she was entitled to, or could legally, elect to take a child's part in any part of said land in lieu of dower." They denied that either the plaintiff or Dicy N. Lomas has or is entitled to an undivided one-seventh interest in said real estate or any part thereof, and denied that plaintiff has any interest or estate whatever in said real estate or any right to have the same partitioned. The cause came on for trial on the 7th day of January, 1904, and was submitted to the court upon the evidence, and the court found the issues for, and gave judgment for, the defendants. In due time the plaintiff filed his motion for a new trial, which was heard and overruled, and the plaintiff saved his exceptions, and thereupon the plaintiff prayed an appeal to this court, which was granted.

1. Preliminary to a...