Rawlings v. Rawlings
| Decision Date | 11 January 1932 |
| Citation | 45 S.W.2d 539,226 Mo.App. 688 |
| Parties | JOSEPH AUSTIN RAWLINGS, APPELLANT, v. ALBIN M. RAWLINGS ET AL., RESPONDENTS |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Saline County.--Hon. Robert M Reynolds, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Strother Campbell & Strother for appellant.
Rich Storts & Storts for respondents.
--This proceeding, in the nature of a partition suit, was begun on March 16, 1928, by plaintiff filing his petition in the circuit court. Four defendants, Albin M. Rawlings, Walter Rawlings, Lillian Louise Rawlings and Ella B. Rawlings, were named in summons, returnable to the May term.
Said defendants were duly served with summons, and at the return term, filed answer, in which various admissions are made, followed by the allegation that the specific interests of the defendants named in the petition cannot be determined in the action because six others, not named in the petition, are necessary parties to the suit. It is prayed that summons be issued for these six others and that said four defendants be permitted to plead further when all parties in interest are in court.
On July 28, 1928, plaintiff filed an amended petition in which he included as defendants the six persons named in the answer of the other defendants, and thereafter all interested parties were either brought into court or entered their appearance.
On September 18, 1928, defendant Albin M. Rawlings filed a motion in this case, reciting that on July 3, 1928, he was duly appointed by the probate court of Saline county, as administrator de bonis non, with will annexed, of the estate of Morality Rawlings, deceased, and prayed to be made a party defendant as such administrator. Leave was granted, over the exception of plaintiff, and said administrator entered his appearance on October 3, 1928. On the same day, the four defendants who had filed answer, Albin M. Rawlings appearing also as administrator de bonis non of the estate of Morality Rawlings, deceased, and Ella B. Rawlings appearing also as guardian and curator of Elian M. Rawlings, a person of unsound mind, filed their plea in abatement, which was taken up by the court. By stipulation of the parties, the court considered as in evidence (1) a certified copy of the will of Morality Rawlings, with the order of probate thereof; (2) order of probate court appointing Austin Rawlings as executor thereof; (3) proof of notice of grant of letters and of notice of final settlement; (4) order of discharge, and (5) a certified copy of the application and appointment of Albin M. Rawlings as administrator de bonis non, with the will annexed, of the estate of Morality Rawlings.
The trial court sustained the plea in abatement and dismissed the cause. Motions for new trial and in arrest failing, plaintiff filed affidavit for appeal and appeal was allowed him to the Supreme Court, on the theory, apparently, that title to real estate was involved. That court took the view (39 S.W.2d 367) that title to real estate was not involved and transferred the case to this court. The Supreme Court adopted the statement of facts made by the appellant in his brief, as a statement of facts in the case, necessary to decide the question of jurisdiction, and those facts will not be repeated here, except as a statement of them becomes necessary in considering the points involved.
Briefly, the first petition filed by plaintiff recites that Morality Rawlings died testate in Saline county, Missouri, in September, 1890, seized of the east half of the northeast quarter and southwest quarter of northeast quarter of Section 10, Township 50, Range 20; that he devised a life estate therein to Mary M. Rawlings, his wife, and at her death, the said real estate to be divided equally among his nine children, or their heirs, of whom the father of the plaintiff, Austin Rawlings, was named in will as sole executor thereof. Austin Rawlings died intestate in 1912. Various other children have since died and their heirs are named as their successors in interest. Mary M. Rawlings died intestate on April 21, 1919.
The petition then alleges that plaintiff and defendants are the owners and tenants in common of the above described real estate, and their various fractional interests are set out; that the defendants, Lillian Louise Rawlings, Ella B. Rawlings and Albin M. Rawlings have occupied the dwelling house, outbuildings and greater portion of the real estate since the widow's death and have paid no rent therefor, and then sets out the reasonable value of said rental; that, because of the amount and location of said real estate and the number of persons interested therein, partition in kind cannot be made without great injury and prejudice to the owners, and prays that partition be made among the heirs; that their respective interests be determined; that the defendants now occupying the premises be required to account for their use of the same, and that the sum so found be adjudged a charge and lien against the respective shares of said defendants; that the land be sold and a division of the proceeds thereof made between plaintiff and defendants in accordance with their respective interests, and for equitable relief.
The answer filed by the four defendants first named, admitted the ownership in Morality Rawlings, at the time of his death, of the land described; that his will was probated in Saline county on September 22, 1890, whereby he devised a life estate to his wife, Mary M. Rawlings, and at her death directed that said lands be sold and the proceeds thereof divided among his nine children, naming them; that Austin Rawlings, named as sole executor in said will, died intestate September 2, 1912, leaving his widow who died about December 30, 1915, and the plaintiff, as his only heirs at law; that Mary M. Rawlings died about April 21, 1919, admits intermarriage and decease of other children, leaving named heirs; that Elian M. Rawlings is a person of unsound mind and Ella B. Rawlings is his regularly appointed and acting guardian and curator. The answer then alleges the existence of other heirs who are necessary parties to the determination of the suit and prays that they be joined as parties and brought in, as heretofore noted.
After this answer was filed, and before the filing of the amended petition, Albin M. Rawlings went into the probate court and had himself appointed administrator de bonis non of the estate of Morality Rawlings, deceased.
The amended petition filed by plaintiff recites substantially the same facts as the first petition filed, except that, while the first petition recites that Morality Rawlings, by his last will, devised a life estate in the real estate described to his wife, Mary M. Rawlings, "the said real estate to be divided equally among his nine children, or their bodily heirs, at her death," the amended petition recites that Morality Rawlings devised a life estate to his wife and, at her death, directed that said real estate be sold and the proceeds thereof divided equally among his nine children. This latter allegation conforms to the wording of the will, hereinafter noted, and there is no allegation in the amended petition that testator devised land to his children, or that said land be divided among them. The amended petition includes the names and interests of other defendants and recites the value of the real estate as of $ 15,000.
The plea in abatement filed by various defendants recites the facts, as heretofore stated, of the death of Morality Rawlings in the year 1890, of the probate of his will, his ownership of the real estate described; the life estate of Mary M. Rawlings, the nomination of Austin Rawlings as executor of said will; his execution of the trust by taking possession of the personal property; payment of all the debts of the estate; final settlement, and that the executor died September 2, 1912; that the widow continued to enjoy the life estate in the land until she died April 21, 1919; that plaintiff and defendants have been and are now in possession and control of said land and enjoying the rents and profits thereof; that on July 3, 1928, defendant Albin M. Rawlings was duly appointed administrator of the estate of Morality Rawlings, deceased, cum testamento annexo, and is now acting in that capacity under said appointment; that the court has not authority to render the judgment prayed for and that the suit ought to abate and plaintiff's petition be dismissed.
Upon this motion, and the exhibits introduced, by stipulation, the trial court ruled the motion well taken, sustained the plea and dismissed the suit.
The first point made by plaintiff is that the appointment of the administrator de bonis non, under the circumstances was against the law. In support of this contention it is urged the estate of Morality Rawlings had been fully administered by Austin Rawlings, all debts paid, final settlement made and the executor discharged; that there is no allegation in the petition for appointment of administrator de bonis non of newly discovered assets, and that there were no unpaid allowed demands against said estate; nor was there a waiver of the right of other heirs to act, although all except two were residents of Missouri, eleven residing in Saline county. It appears from the exhibits, duly certified, filed by stipulation of the parties, that Austin Rawlings, the sole executor named in the will of Morality Rawlings, had been appointed executor under the will, in September, 1890; that he published legal notice of his appointment and of his intention to make final settlement; that final settlement was made and he was discharged, and that he departed this life in 1912. It does...
To continue reading
Request your trial