Rubey v. Barnett

• Decision Date: 31 July 1848
• Citation: 12 Mo. 3
• Court: Missouri Supreme Court
• Parties: RUBEY ET AL. v. BARNETT.

12 Mo. 3

RUBEY ET AL.

v.BARNETT.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM MONROE CIRCUIT COURT.

CLARK & WELLS, for Appellant.

1st. There is no misjoinder of action in this case, because the will affects alike all the property, real and personal. Story's Eq. Pl. 224, 232.2nd. There is no misjoinder of parties. The complainants claim a joint undivided interest in the whole subject matter of the suit, as well in the land as in the personalty, and they claim all under the same title. The interest of one cannot be settled and decreed without ascertaining the interest of the other. Story's Eq. Pl. 74, 77, 107, 109. 3rd. The cause of action is not barred by the statute of limitation. The bill charges that he obtained possession of the property as administrator; being once a trustee he is always a trustee, and may be held to account at any time, at least at any reasonable time. 3 McCord, 467. It cannot be taken advantage of on demurrer. 4th. The will of William Horn gives his wife but a life-estate with a power of disposition at her death. The fee is undisposed of by the will, and the wife making no disposition of the estate in her life, the whole passes at her death to the heirs, to be distributed under our statute of Distribution. 4 Kent's Com. 535; 2 Kent's Com. 532; 4 Kent's Com. 332, 319; 16 Johns. 585-6-7; 2 Wilson, 8; 1 Dana, 229, Vance and Wife v. Campbell's Heirs; 2 Dana, 426, Pate v. Barnett and Wife; 3 Littell, 415, Lillard v. Robeson; 11 B. Monroe, 450; 3 Leigh, 353, Boswell, Ex'r, v. Anderson, Adm'r.GLOVER & CAMPBELL, for Appellee.

I. The will vested an absolute estate in Polly Horn to the property devised to her. This conclusion is enforced by many reasons arising out of the language of the instrument, and the circumstances of the parties. 1st. The introductory clause in the will proposes to dispose of the whole of the testator's interest, and when such is the case, these words indicate the testator's intention, and the subsequent words must be construed, if possible, to accord with this intention. 6 Cruise Dig. 229, No. 20; 6 Taunton, 410; 18 Vesey, 193; 2 Atkins, 102. 2nd. The power which the will gives to the devisee over the estate devised, is unlimited and absolute; she might have conveyed it or devised it at pleasure. In Tomlinson v. Dighton, 1 P. Williams, 149, the devise was to the devisee for life, and then to be at her disposal; held to be a power to convey by deed. 3rd. The intention of the testator to pass an absolute estate, is enforced by that portion of the devise which exempts her from any security as his executor. If no one but herself was to be interested in the property, then there is propriety in relieving her of this burden. But if he wished to secure the estate to others at her decease, this clause in the will cannot be accounted for. 4th. The want of any devise over to any person in the event of her death, is a powerful circumstance, showing an intention to pass an absolute estate. 12 Pick. 31. Now, to the rational mind a devise over is stronger evidence of an intention to give an estate for life, than the employment of the words “for life,” or “during life,” for it is competent, after giving a life-estate, to pass the balance of the interest by another clause, as has been often done, to the devisee for life. But a clause in the conclusion of a devise which gives the estate over to another, certainly would seem to preclude all construction; nevertheless, such a clause has always given way to a general power; why not the words here used give way to this power? 5th. The condition of the testator, as disclosed by the bill, goes to strengthen this view. He had no children, and might well be expected to give his wife all he possessed; most men in like cases would do so. Had he intended any portion of his estate for his collateral kin, it is most reasonable to presume he would have given them some present interest. His wife did not need the $20,000 which he left, and if in any event he had designed any part of it to go to the appellants, he would have divided it at once with them and her. 6th. As to the personal estate named in the will, the devisee took an absolute estate, because there is no reversion of a chattel after a life-estate granted therein; there may be an executory devise or a remainder, but this is neither; and it has never been held that a reversion arises by operation of law in such property. 2 Kent, 352. Cases of reversion in slaves are numerous in those States where slaves, as to the law of Wills and Descents, have been put on the same footing with real-estate, but such is not our statute law.

II. But if we shall be in error as to the foregoing points, and the court shall be of opinion that the will vested only an estate for life in the devisee, and that the appellants have taken a reversion in the real-estate of William Horn, deceased, the question arises, what sort of a title has reverted to them; a legal or an equitable title? We must think if any right has passed, it is a legal right. The idea of an equitable title is always contrasted with a legal one. If A. has an equitable right to land, it is because B. withholds a legal right. If these appellants have an equitable right in whom is vested the legal title--not in William Horn, for he is dead--nor in Hutchins Barnett, for the bill avers that it was in Horn just before his death, and does not show how Barnett could have got it. If it is in anybody else, the wrong party has been sued; and if it be in the appellants, their remedy was not here, but at law. They have consequently no equity to have this land decreed to them. As to the slaves, the remedy was also at law. The will of Horn was executed by the executor when he placed the slaves in the hands of the devisee for life. By virtue of this act the estates in remainder or reversion, if any, became vested, and when the life-estate fell, the legal right and cause of action was perfect in the next taker. 4 Kent, 201.

III. The demands of the appellants, except such as purport on the face of the bill to belong to the infants, or to be derived from married women, are barred by the statute of limitation; and for so much of the matter of the bill therefore as concerns the interest derived from the adults, the demurrer was properly sustained at all events. Rev. Code, 1845, p. 840, § 11. The statute of Limitation is a bar when the bill itself, as in this case, shows the necessary continued adverse possession. Story's Eq. Pl. 496, No. 503, and the note.

IV. The bill is multifarious in joining the administrator of Horn, against whom the distribution is demanded, with Hutchins Barnett as tenant of the real-estate, for the administrator and the tenant are the same persons, yet they cannot be joined; the subject matter, wrongs and rights involved, being separate and distinct. Edwards on Parties, 10. In 2 Simons, 329, the bill was for an account of the real and personal estate of decedent, and against the administrator, and was held multifarious. Here the bill prays for an account of the real and personal estate, and in addition asks a decree for the land itself. Lit. Sel. Cases, 320; 4 Blackf, 331. This objection, if good, is fatal to the whole bill. 2 Am. Ch. Dig., 324, § 5, citing 2 Gill & Johns. 14; 5 Paige,...