Rawlings v. Rawlings

• Decision Date: 16 March 1933
• Docket Number: 31775
• Citation: 58 S.W.2d 735,332 Mo. 503
• Parties: Joseph Austin Rawlings, Appellant, v. Albin M. Rawlings et al
• Court: Missouri Supreme Court

58 S.W.2d 735

332 Mo. 503

Joseph Austin Rawlings, Appellant, v. Albin M. Rawlings et al

No. 31775

Supreme Court of Missouri

March 16, 1933

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Affirmed.

Strother Campbell & Strother for appellant.

(1) Appointment of administrator de bonis non under the circumstance, was against the law. R. S. 1919, sec. 46; State ex rel. Kniseley v. Holtcamp, 266 Mo. 365; State ex rel. v. Holtcamp, 273 Mo. 130. (2) Will did not confer power of sale on the executor. Griffith v. Witten, 252 Mo. 643; McQueen v. Lilly, 131 Mo. 18; Compton v. McMahan, 19 Mo.App. 494. (3) Sale of real estate by partition action where the will directs sale to be made of the same is not contrary to the terms of the will. Barnard v. Keathley, 230 Mo. 209; Strockler v. Means, 30 S.W.2d 97; Hood v. Shively, 31 S.W.2d 283; William v. Lobban, 206 Mo. 314; Nall v. Nall, 243 Mo. 256; Turner v. Hine, 297 Mo. 161. (4) Even if the land was fictitiously converted by the terms of the will into personalty, it remained land in fact until a sale and partition lies for personalty the same as realty. R. S. 1919, sec. 2054; Meinhart v. Draper, 133 Mo.App. 50; McGregor v. Hampton, 70 Mo.App. 98. (5) Right to partition is a valuable one which having attached before defendants took any action in the probate court the circuit court should have retained jurisdiction and decided all the issues raised by the petition. In re Dildine Estate, 293 Mo. 398; State ex rel. v. Holtcamp, 266 Mo. 359; Maston v. Ireland, 8 S.W.2d 900; Huenssler v. Iron Works, 110 Mo. 118. (6) The circuit court in partition is the only forum in which an accounting for rents and profits can be maintained. R. S. 1919, sec. 2008; Coberly v. Coberly, 189 Mo. 1, 87 S.W. 961; Byrne v. Byrne, 289 Mo. 109, 233 S.W. 461; Martin v. Martin, 266 S.W. 336.

Rich, Storts & Storts for respondents.

(1) By directing that his land be sold after the death of his wife and the proceeds distributed among the beneficiaries named in his will be converted the real estate into money. Nall v. Nall, 243 Mo. 247; DeLashmutt v. Teetor, 261 Mo. 412; Hobbs v. Yeager, 263 S.W. 225; In re McElevey's Estate, 266 S.W. 123. (2) The will confers the power of sale upon the executor. Wyatt v. Stillman Institute, 260 S.W. 73. (3) There can be no reconversion to real estate except upon the election of all the beneficiaries. Gilbreath v. Cosgrove, 193 Mo.App. 419. (4) The executor having died before executing the power to sell the land the administrator de bonis non is authorized to execute that power. Sec. 133, R. S. 1929; Cannon v. Unknown Heirs, 175 Mo.App. 84. (5) The judgment and order of the probate court discharging the executor upon the filing of his final settlement were void because the estate was not "fully administered." Wyatt v. Stillman Institute, 260 S.W. 76; State ex rel. v. Holtcamp, 266 Mo. 366; Woener's American Law of Administration, Edition of 1889, sec. 571.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is a suit for partition of 120 acres of land in Saline County. The parties are the children and grandchildren of Morality Rawlings who died testate in 1890. The provisions of his will concerning this land are, as follows:

"3rd. I desire that my said wife have the control and proceeds of my farm being the east half of the N.E.Qr. and the S.W.Qr. of the N.E.Qr. of Section Ten (10) Township fifty-one (51), Range twenty (20), in Saline County, Missouri, during her natural life and widowhood and should she marry I direct that my said farm be sold and the proceeds be thus divided -- Two thirds of the proceeds to be divided equally among all my children, namely, Emily H. Warner, Austin, Walter, Albin, Ella B. Mariah, Minervah, Leonisa and Elian Rawlings, the other third to be loaned out on real estate security at the highest obtainable rate of interest and the interest to be annually paid to my said wife during the rest of her life, and at her death said third to be divided among my said children equally. Provided that at any time during the life and widowhood of my said wife if she and a majority of my children who are at the time of lawful age shall file with the Judge of the Probate Court of said Saline County a request in writing and deliver to my executor a copy thereof asking my said executor to sell said farm then my said executor shall sell said farm to the best advantage and divide two thirds of the proceeds equally among my said children and loan the other third out on real estate security at the highest obtainable rate of interest and pay the interest annually to my wife during her life and at her death divide said third equally among my said children. If my wife remain unmarried during the remainder of her life then at her death if said land be not sold under a former provision of this will I direct that my said land be sold to the best advantage and the proceeds divided equally among my said children. If any of my said children be dead at the time of sale of real estate as hereinbefore provided leaving no bodily heirs then the share that would have gone to such child if living shall go to his or her mother, brothers and sisters living but leaving bodily heirs such bodily heirs shall take the share going to their parent.

"4th. I hereby appoint as my sole Executor of this my last will and Testament my son Austin Rawlings."

Mary M. Rawlings, widow of the testator, never remarried, and died in 1919. Austin Rawlings, the executor named in the will, died in 1912. Prior to that time, he had made final settlement as executor. After this suit was commenced in 1928, defendant Albin M. Rawlings applied to the Probate Court of Saline County for appointment as administrator of the estate of Morality Rawlings and was appointed by that court administrator de bonis non with the will annexed. He filed a plea in abatement on the ground that under the will plaintiff was not entitled to partition and that, by virtue of his appointment, he alone was authorized to sell the land. There was no issue of fact and no contention is made as to the sufficiency of the pleadings to raise the issue as to who had authority to sell the land. The court sustained the plea in abatement and entered judgment dismissing the suit, from which judgment plaintiff has appealed. This appeal originally came to this court, but we decided that it did not involve title to real estate within the meaning of the constitutional provision defining this court's jurisdiction and we transferred the cause to the Kansas City Court of Appeals. [Rawlings v. Rawlings, 39 S.W.2d 367.] In that opinion will be found a statement of the pleadings and the issues made by them.

The Kansas City Court of Appeals held that the Circuit Court of Saline County "has jurisdiction to carry out the terms of the will of Morality Rawlings, to order this real estate sold, and distribution made according to the respective interests of the heirs, and that jurisdiction was not ousted nor superseded by the act of the probate court in appointing Albin M. Rawlings administrator de bonis non with the will annexed of the estate of Morality Rawlings, deceased." It reversed and remanded the cause "with directions to set aside its order dismissing said suit and sustaining said plea in abatement, to reinstate said cause and allow the respective parties to plead, and proceed to hear and determine the issues made therein." [Rawlings v. Rawlings, 45 S.W.2d 539.] The court, however, certified the cause here because the Presiding Judge deemed the opinion in conflict with decisions of the St. Louis Court of Appeals in Kaufmann v. Kaufmann, 43 S.W.2d 879, and Cannon v. Cannon, 175 Mo.App. 84, 157 S.W. 860. The allegations of the pleadings, as well as the facts necessary to a decision of this case, are fully stated in the opinion of the Kansas City Court of Appeals. We will not repeat them here, but will refer to such as we deem necessary in the course of the opinion.

Plaintiff claims an absolute right to have the land sold at partition sale. Because of the number and variation of the fractional interests of the parties (from 1/9 to 1/81) it probably could not be divided but would have to be sold. The defendant, administrator de bonis non, claims the absolute right to exercise the power of sale given by the will. The principles upon which this matter must be ruled have been stated by this court, as follows:

"First. If the will confers a power of sale, coupled with a discretion to sell or not as the donee of the power sees fit the trust is personal, and is independent of the official character of the donee as executor, and may be exercised by the donee, even if he does not qualify as executor, and survives the final administration of the estate, and continues until the purposes of the trust have been accomplished or until the donee of the power has had a reasonable time in which to execute the trust. Such donee, being a fiduciary agent, is always subject to the control of a court of equity, which court has power at any time upon a proper showing to terminate the trust, discharge the trustee, and distribute the trust estate.

"Second. Ordinarily, an executor or administrator has no power to sell the real estate, except upon order of the probate court, to pay debts; but if the will expressly and absolutely directs the executor to sell the real estate, without vesting any discretion in the executor, and to apply the proceeds to the payment of debts or to distribute them, then the power adheres to the office of executor, and is not personal, and must be exercised during the continuance of the executorship, for in such cases the proceeds of the sale of the real estate become personal assets of the estate and are a proper subject of...