Robbins v. Boulware

• Citation: 190 Mo. 33,88 S.W. 674
• Parties: ROBBINS v. BOULWARE.
• Decision Date: 20 June 1905
• Court: United States State Supreme Court of Missouri

88 S.W. 674

190 Mo. 33

ROBBINS v. BOULWARE.

Supreme Court of Missouri, Division No. 2.

June 20, 1905.

1. HOMESTEAD — WIDOW'S RIGHTS — SALE OF FEE FOR DECEASED HUSBAND'S DEBTS.

The fee of the homestead of a widow subject to her right is liable to sale by order of the probate court for payment of debts of the deceased husband.

2. ESTATES OF DECEDENTS — PROCEEDINGS OF PROBATE COURT — SALE OF LAND — PETITION — AFFIDAVIT.

Though the statute requires that a petition for the sale of lands of a decedent for payment of debts be verified by affidavit, the absence thereof is a mere irregularity, and, the parties interested being in court by due process, the irregularity does not render the proceedings void, or subject to an attack collaterally.

3. SAME — PROCESS — PUBLICATION OF NOTICE.

Rev. St. 1879, § 148, requiring notice of proceedings for the sale of land of a decedent for payment of debts to be published four weeks in some newspaper before the term of court, does not require the publication for the four weeks immediately preceding the term of court.

4. SAME — ADMINISTRATOR'S SALE — NOTICE — INSUFFICIENT NOTICE — JUDGMENT — COLLATERAL ATTACK.

Though only twenty-two days' notice was given of an administrator's sale, when the statute required four weeks' notice, the probate court having found, in its order of sale, that the notice had been published for four weeks, it could not be attacked collaterally because of insufficiency of the notice.

5. SAME — AFFIDAVIT OF PUBLICATION — SUFFICIENCY —COLLATERAL ATTACK.

The probate court, in an order for the sale of lands of a decedent, having found that due publication had been made of the notice of the sale, the order was not subject to collateral attack, though the proof of publication was made by the publishers as a firm.

6. ADMINISTRATOR'S SALE — DELAY IN APPLICATION.

Where the first administration on an estate was by a son of deceased, who made no application to sell the real estate for payment of debts, and after his removal and the placing of the estate in the hands of the public administrator the widow immediately proceeded to have the land set off as a homestead, which was done, and it remained in her possession up to the time of her death, though an application by the public administrator to sell the land subject to the homestead was not made until 11 years after decedent's death, an heir could not complain on the delay in the application, in an ejectment suit brought 25 years thereafter.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Ejectment by Anna B. Robbins against M. Q. Boulware. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Appellant has filed an abstract of the entire record in this cause. In the brief, however, there is no detailed statement as to the contents of the abstract, but we find, after a careful consideration of the record, and a verification of it, that the respondent has made a fair statement of the general outlines of this cause, and with some modifications we have adopted it.

This is an action in ejectment, brought by plaintiff, now appellant, against the defendant, now respondent, to recover five-eighths interest in and to 49½ acres in the north-west quarter of section fifteen (15), township sixty-three (63) north, range six (6) west, situate in Clark county, Mo. It is admitted and agreed by counsel: That the common source of title is William N. Brown. That he died on the 31st day of December, 1877, intestate, seised of the land, and that he left as his heirs at law his children, Newton A. Brown, Daniel E. Brown, Henry B. Brown, Rhoda Davis, Nettie Bash, Minie Barclay, and Anna B. Robbins. That he left his widow, who died July 26, 1891. That $100 is the reasonable rental value of the premises per year. That the defendant has been in the possession of this real estate since March 1, 1896. William N. Brown, the common source of title, died intestate December 31, 1877, leaving surviving him his widow, Mary A. Brown, and appellant and other heirs at law. That thereafter, at the May term, 1878, of the probate court of Clark county, Mo., Henry D. Brown was duly appointed administrator of said estate, gave bond, and entered upon the discharge of his duties as such up to the February term, 1888, of said court, when, upon the application to said court by A. D. Lewis, a creditor of said estate, by petition, upon due notice to said Henry D. Brown, such proceedings were had in said court that letters heretofore granted to him were by the said court revoked on account of his failure to discharge his duties as such administrator and for failure to pay off the legal demands allowed against said estate. That thereafter, and on November 30, 1888, no one of kin appearing to administer, the probate court of Clark county, Mo., duly appointed Henry C. Schaffer, public administrator of said county, to take charge of and administer said estate. On application of Mary A. Brown, widow, at the November term, 1888, of said probate court, by petition, such proceedings were had in said court that at the February term, 1889, the whole of said real estate was set off to her as her homestead herein, which she occupied as such up to the date of her death, which occurred July 26, 1891. Henry C. Schaffer, public administrator in charge of said estate, on December 1, 1888, filed his petition praying for the sale of said real estate, subject to the homestead rights of the widow therein, and on the 24th day of December, 1888, at the November term of said court, an order of publication was directed and ordered by said court notifying all parties interested that at the next February term, 1889, of said court, and on the first day of said term, being the second Monday in February, 1889, and the 11th day of said month, an order would be made to sell the whole or such part as may be necessary to pay the debts of said estate unless the contrary be shown. At said February term, 1889, the order of sale was duly made by an order of record in said probate court. That thereafter the said administrator, after having the same appraised by three disinterested persons at the price of $300, as shown by said appraisement, in pursuance of the terms of said order, and at the May term of said court, after having advertised the same, sold said land at public vendue, and E. H. Connable, being the highest and best bidder therefor, became the purchaser thereof, and same was duly sold to him for the sum of $400. The sale was duly reported to the court, and said sale was approved, and deed regular on the face of it, containing all the necessary statutory averments, ordered made to him for said real estate, which was done May 25, 1889. On the 7th day of December, 1895, the said E. H. Connable, for a valuable consideration, executed, acknowledged, and delivered to respondent, M. Q. Boulware, a deed for said premises, and respondent has had possession thereof, according to the admission in the record, since March 1, 1896. This presents in a general way what was done in respect to the sale of this land. As to the defects disclosed by the record in the petition, and insufficiency of the publication of notice of application for sale and notice of sale, and the proof of publication, we will fully treat of them during the course of the opinion. This case was, by agreement, tried before the court, no instructions asked or given by either party, and the finding and judgment was for respondent and against the appellant, and the latter brings this case here for review by appeal from the judgment of the lower court.

Berkheimer & Dawson, for appellant. T. L. Montgomery and W. M. Boulware, for respondent.

FOX, J. (after stating the facts).

Numerous errors are assigned by appellant as grounds for the reversal of this judgment. The legal propositions submitted to us for consideration by learned counsel for appellant may thus be briefly stated: (1) It is insisted that the land in controversy, being the homestead of the widow, was not subject to sale under the order of sale by the probate court during the lifetime of the widow. (2) That the sale of the real estate by the administrator was void, for the reason that the truth of the allegations of the petition was not properly verified by affidavit of the administrator. (3) That the probate court did not acquire jurisdiction of the persons interested in said land by reason of the insufficiency of the notice of publication and the proof thereof by the publishers; hence the order of sale was void and of no force and effect. (4) That the sale by the administrator is inoperative to pass the title by reason of the insufficiency of the notice of such sale. (5) That there was unreasonable delay in the application to the probate court for the sale of this land, and for that reason this sale should not be upheld. We will treat the propositions in the order named.

Upon the first proposition involved in this controversy, the question as to the right to sell this land in controversy, which was the homestead of the widow, by order of sale of the probate court, for the payment of the debts of William N. Brown, must be treated as settled, and no longer an open question in this state since the conclusions of this court were announced upon that proposition in the case of Keene v. Wyatt, 160 Mo. 1, 60 S. W. 1037, 63 S. W. 116. It will be observed that this case expressly disapproved the rulings in the cases of Broyles v. Cox, 153 Mo. 242, 54 S. W. 488, 77 Am. St. Rep. 714, and In re Powell's Estate, 157 Mo. 151, 57 S. W. 717, cited by appellant in this cause, so far as such rulings were in conflict with the conclusions reached in Keene v. Wyatt, supra.

The next insistence on the part of the appellant is directed to the absence of the signature of the officer administering the oath to the administrator and the affidavit attached to the petition for the sale of real estate. The affidavit is in proper form, and duly signed by the...