Robards v. Brown

• Decision Date: 12 March 1902
• Citation: 67 S.W. 245,167 Mo. 447
• Parties: ROBARDS v. BROWN et al.
• Court: Missouri Supreme Court

67 S.W. 245

167 Mo. 447

ROBARDS v. BROWN et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1902.

WILL — CONSTRUCTION — DEVISE OF REMAINDER.

Testator, having a wife, a daughter, and three sons, V., J., and W., all married, and V. and J. insolvent, with judgments against them, by his will first gave to each of his children $1, then gave his property to his wife during widowhood, adding that, in event of his wife dying before him, he willed that all his property be distributed "as follows," following which is a devise and bequest of one-fourth of his property to each of the four persons, his daughter, W., and the wives of V. and J. Held, that there was a devise of the remainder to these persons, though testator's wife survived him.

Appeal from Hannibal court of common pleas; W. M. Boulware, Special Judge.

Action by John L. RoBards against John J. Brown and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Ejectment for an undivided one-fourth interest in the east 100 feet in lot 2, block 37, in the city of Hannibal, Mo. The defendants prevailed in the lower court, and the plaintiff appealed. The petition is in the usual form, and the ouster is laid as of the 16th of January, 1899. The answer denies title or right to possession in the plaintiff, and asserts the fee-simple title to be in defendants, Delia A. Brown, wife of John J. Brown, William G. Brown, Charlotte B. White and Shirley A. White (jointly), and Mary V. Brown, each owning an undivided one-fourth interest, and further avers possession to be in John J. Brown, as their tenant by the month. The reply is a general denial. George Brown is the common source of title. The defendants claim as devisees under his will. The plaintiff claims under a sheriff's deed, resting upon a judgment against John J. Brown, who was a son of George Brown, and upon the proposition that George Brown died intestate, except as to a life estate left to his widow, which has terminated, and hence the plaintiff has succeeded to the rights of John J. Brown in the estate of his father George Brown. The case was tried, in part, upon the following agreed statement of facts: "Said parties, plaintiff and defendants, agree that in the trials of the above cause the following facts are conceded, and that neither party will be required to make further proof thereof than this agreement: (1) That George Brown, Senior, being a citizen of Hannibal, Missouri, died on March 22, 1897, seised in fee owner of the property described in the petition, viz., the east 100 feet of lot 2 in block 37 in Hannibal, Missouri. (2) That at the time of his death said George Brown, Sr., left surviving him his widow, Charlotte Brown, his son, John J. Brown, his son, William G. Brown, his grandsons, Arthur V. Brown and George Brown, sons of said George Brown, Sr.'s, son, Joshua V. Brown, who died intestate June 1, 1895, and the grandson of said George Brown, Sr., Shirley A. White, and the granddaughter of said George Brown, Sr., Charlotte B. White, children and sole heirs at law of George Brown, Sr.'s, daughter, Mary B. White, who died intestate Oct. 8, 1893; all residents of Hannibal, Missouri. Said William G. Brown was at no time insolvent, and he died July 4, 1899, leaving a widow, Mary W. Brown, and one child, a son, William G. Brown. (3) That Mrs. Charlotte Brown, widow aforesaid, occupied said premises at the time of her death, which event occurred on January 14, 1899. (4) That the entire monthly value of the rents and profits of said premises is $10 per month. (5) That in the year 1890 W. K. White, a resident of Hannibal, Missouri, and the husband of said Mary B. White, became a confirmed inebriate, and unable to support his wife or children, and that he so remained up to the time of the death of said George Brown, Sr. (6) That in the year 1873 said Joshua V. Brown and said John J. Brown, residents of Hannibal, Missouri, copartners carrying on a jewelry store, failed in business at said city; that judgments were rendered against them and unsatisfied at the time of the death of said George Brown, Sr.; said John J. Brown and the estate of Joshua Van Brown, dec'd, remained insolvent. (7) That during all said time George Brown, Sr., was a resident of Hannibal, Mo., and was personally cognizant of all said facts and circumstances. (8) That said John J. Brown claims solely as tenant under the alleged devisees of said George Brown, Sr. (9) That said Delia A. Brown claims the undivided one-fourth of the premises in suit in her own right by alleged devise from said George Brown, Sr., and the remaining three-fourths as tenant under other alleged devisees of said George Brown, Sr. (10) That John J. Brown, on March 13, 1899, executed and delivered to Delia A. Brown a quitclaim deed to the property described in the petition for the consideration therein expressed of love and affection and one dollar; that said deed has been duly recorded. (11) To any of the aforesaid facts, or alleged facts, the plaintiff, of the one part, and both defendants, of the other part, mutually reserve the right to enter objection on grounds of irrelevancy and incompetency, and to except to any ruling of the court overruling or failing to sustain such objections. This stipulation is not exclusive of other evidence. Witness our hands in duplicate this Sept. 14, 1899. John L. RoBards, pro Se. F. L. Schofield, Attorney for Plaintiff. Thomas H. Bacon, Attorney for Defendants." The plaintiff read in evidence the first, second (except the last clause thereof), third, fourth, eighth, ninth, tenth, and eleventh paragraphs of this agreed statement, and then introduced in evidence the sheriff's deed, dated November 20, 1897, and based upon a judgment in favor of the plaintiff and against John J. Brown, rendered May 14, 1889, and proof as to the value of the monthly rents, and then rested. The defendants read in evidence the will of George Brown, which is as follows: "I, George Brown, Sr., of the city of Hannibal, Marion county, Missouri, of sound mind and disposing memory, do make, declare, and publish this my last will and testament, hereby revoking all other wills heretofore made by me. 1st. I direct that all of my just debts, the expenses of my last sickness, and my funeral expenses be first paid out of my estate by my executors, hereinafter named. 2nd. I give and bequeath the sum of one dollar to each of my children, namely, J. Van Brown the sum of one dollar, to John J. Brown the sum of one dollar, to William G. Brown the sum of one dollar, to Mary B. White, the wife of W. K. White, the sum of one dollar. 3rd. To my well beloved wife Charlotte Brown, for and during her widowed life, and as long as she remains single, I give, devise, and bequeath all of my estate and property, real and personal, consisting of town lots and the improvements thereon, all of my stock in trade in my store at No. 307 Broadway, Hannibal, Missouri; also all bonds, bank stock, money, store fixtures, and household furniture; all of said real and personal property herein devised and bequeathed lying and being in the city of Hannibal, Marion county, Missouri. In the event that my said wife should not be living at the time of my death, then, in that event, I will that all my property, both real and personal, be distributed as follows: To my daughter, Mary B. White, wife of W. K. White, to her sole and separate use, free from the control of her said husband, I give and devise a one-fourth interest of, in, and to all the real estate of which I may be possessed at the time of my death, wherever the same may be situate. I also give and bequeath to her, to her sole and separate use, free from the control of her said husband, a one-fourth interest in and to any personal property, consisting of money, bank stock, stock in trade, and household furniture of which I may be possessed at the time of my death. To my beloved daughter-in-law Mary V. Brown, wife of my son J. Van Brown, to her sole and separate use, free from the control of her said husband, I give and devise a one-fourth interest of, in, and to all the real estate of which I may be possessed at the time of my death, wherever the same may be situate. I also give and bequeath to her, to her sole and separate use, free from the control of her said husband, a one-fourth interest in and to any personal property, consisting of money, bank stock, stock in trade, and household furniture of which I may be possessed at the time of my death. To my beloved daughter-in-law Delia A. Brown, wife of my son John J. Brown, to her sole and separate use, free from the control of her said husband, I give and devise a one-fourth interest of, in, and to all the real estate of which I may be possessed at the time of my death, wherever the same may be situate. I also give and bequeath to her, to her sole and separate use, free from the control of her said husband, a one-fourth interest in and to any personal property, consisting of money, bank stock, stock in trade, and household furniture of which I may be possessed at the time of my death. To my son William G. Brown, I give and devise a one-fourth interest of, in, and to all my real estate of which I may be possessed at the time of my death, wherever the same may be situate. I also give and bequeath to him a one-fourth interest in and to any personal property, consisting of money, bank stock, stock in trade, and household furniture of which I may be possessed at the time of my death. I hereby appoint my son John J. Brown and my son William G. Brown executors of this my will, and it is my request that the said pa...