Rutledge v. First Presbyterian Church

• Decision Date: 02 June 1919
• Docket Number: No. 20907.,20907.
• Citation: 212 S.W. 859,278 Mo. 326
• Parties: RUTLEDGE et al. v. FIRST PRESBYTERAN CHURCH OF STOCKTON et al.
• Court: Missouri Supreme Court

212 S.W. 859

278 Mo. 326

RUTLEDGE et al. v. FIRST PRESBYTERAN CHURCH OF STOCKTON et al.

No. 20907.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

Appeal from Circuit Court, Cedar County; B. G. Thurman, Judge.

Suit by James G. Rutledge and others against the First Presbyterian Church of Stockton and others. Decree for defendants, and plaintiffs appeal. Affirmed.

Foulke & Brown and H. C. Hembree, all of Stockton, for appellants.

S. E. Osborn, of Stockton, and Mann, Todd & Mann, of Springfield, for respondent First Presbyterian Church of Stockton.

Parks & Son, of Clinton, for respondents Omar Wasson and Wallace Wasson.

SMALL, C. I.

This is a suit to quiet title commenced in the circuit court of Cedar county. There is no controversy about the facts. Both plaintiffs and defendants claim through Hugh Ross and John Ross as the common source of title. Hugh Ross owned the property in his lifetime. He was married, but never had any children. At his death in 1860 he left surviving him his wife, Caroline Ross, and his brother, John Ross. By his will he devised a life estate in the property to his wife and directed that after her death the land should be sold and the proceeds be "applied to the erection of a house of worship in the town of Stockton, for the use and benefit of the Old School Presbyterian Church."

Caroline Ross elected to take the provisions made by her husband's will. She remained in possession of the property until 1910, the time of her death. John Ross was the sole heir of his brother Hugh, and upon the latter's death inherited the property, subject to the life estate of Caroline Ross and the right of the defendant church, created by the will of said Hugh Ross. Prior to the institution of this suit John Ross died intestate. He left surviving him his widow, Jane Ross, but no children nor their descendants, and no father, mother, brother, nor sister nor their descendants.

Jane Ross subsequently married John Wasson, and the defendants Omar Wasson and Wallace Wasson are the children of that marriage. Said defendants claim that their mother, as the widow of said John Ross, inherited the property from him, and that they on her death inherited it from her and are the owners of it, subject to the rights of the defendant Presbyterian Church under the will of Hugh Ross, and the decree in certain prior litigation which was affirmed by this court in the case of Ross v. Presbyterian Church et al., 272 Mo. 96, 197 S. W. 561.

There is no controversy between the defendants themselves, but they deny that the plaintiffs have any interest in the property. The plaintiffs were not parties to said prior litigation, and it is not claimed to affect their rights. They claim to own the property as the descendants of Mrs. Rutledge, who was the sister of the mother, and therefore an aunt of said John Ross.

The court below found against plaintiffs and for defendants, and plaintiffs brought the case here by appeal.

II. The circuit court correctly decided the case. The statute governing the course of the descent and distribution of real estate (section 332, R. S. Mo. 1909) provides as follows:

"Third, if there be no children, or their descendants, father, mother, brother or sister, nor their descendants, then to the husband or wife; if there be no husband or wife, then to the grandfather, grandmother, uncles and aunts, and their descendants in equal parts."

The plaintiffs in their brief admit that, if this statute is valid, the plaintiffs have no title as against the defendants Wasson, because said defendants are the descendants of the surviving wife of John Ross, and the plaintiffs are descendants of an aunt of said Ross, and by the plain words of the statute, therefore, said defendants took the title by inheritance from said John Ross, and the plaintiffs have no interest therein.

But the plaintiffs suggest that the statute is unconstitutional or void as against public policy, because it allows property to descend to persons not of the blood of the ancestor, in preference to those of his blood. This contention is untenable. No provision of the Constitution is pointed...