Scanland v. Walters, No. 27197.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtLindsay
Citation26 S.W.2d 603
Docket NumberNo. 27197.
Decision Date02 April 1930
26 S.W.2d 603
ETTA WALTERS ET AL., Appellants.
No. 27197.
Supreme Court of Missouri.
Division One, April 2, 1930.

[26 S.W.2d 604]

Appeal from Ralls Circuit Court.Hon. John L. Plowman, Special Judge.


B.B. Megown, D.M. Stout, Hostetter & Haley and Drake Watson for appellants.

(1) This is a case in which a creditor attempted to sell the homestead of a widow to pay debts of deceased husband. In fact the widow was as completely ignored as if she were non-existent, and had no rights of dower and homestead. She was to be cast aside and thrown upon the cold vicissitude of mankind, to do as best she could. Courts will not permit such to be done, for it is the settled law of this State (Laws 1895, which applies to this case) that the sale of homestead by an administrator to pay debts of decedent, not legally charged thereon during his life, is an absolute nullity, and void upon collateral attack. Dennis v. Gorman, 289 Mo. 1; Balance v. Gordon, 247 Mo. 119; Patton v. Buxton, 238 Mo. 118. (2) J. Edward Walters, husband of Etta Walters, upon the death of his father inherited, in fee simple, the 100-acre tract in controversy, subject to his mother's homestead and dower rights. The mother's right of occupancy in no wise prevented the vesting of an estate of inheritance in the son, who was the only child of said George W. Walters. Null v. Howell, 111 Mo. 273; Shoultz v. Lee, 260 Mo. 719. (3) The homestead and fee are not two separable and divisible interests; they must be kept together. Bank of Versailles v. Guthery, 127 Mo. 196; Armor v. Lewis, 252 Mo. 574. "The widow remains in the mansion house and occupies the plantation by sufferance of the heir or those claiming under him. Her possession is in no sense hostile or adverse to either. Forbearance on the part of the heir to terminate the quarantine rights of the widow has been properly commended by the courts. The relation of the two widows one to the other should be the closest and friendliest character. Plaintiff, in this case, only follows the course pursued by her husband, when she refrained from disturbing the possession of the widow of the ancestor of her husband; for this she should be commended. The possession was permissive from the beginning, and will be regarded as continuing so, unless disclaimed by declarations or acts, unmistakably hostile." Null v. Howell, 111 Mo. 278. (4) It cannot be seriously contended by plaintiffs that Etta Walters did not have homestead in the land in controversy, it was an estate of inheritance belonging to and vested in her deceased husband, and upon which he and his wife were living and keeping house at the time of his death. Phillips v. Presson, 172 Mo. 24. (5) The homestead of a deceased housekeeper or head of family can never be sold to pay debts unless legally charged thereon in his lifetime. In this case there is no contention that the debt was a legal charge against his estate. R.S. 1899, sec. 3620; In re Rombauer Estate, 256 S.W. 1066; Balance v. Gordon, 247 Mo. 119; Maupin v. Longacre, 315 Mo. 872. "Homestead has always been of tender concern of this court; when grasping creditors sought to fasten its fangs upon it for debts, we have said, `no.' We have opposed the idea of driving widows to the plane of tenants." Hammond v. Hammond, 300 Mo. 144. "The homestead, vesting in widow and minor children on death of homesteader, is immune from sale for all debts, except those legally charged thereon by homesteader during his lifetime, and sale for other debts by order of probate court is a nullity." Maupin v. Longacre, 288 S.W. 54. "The latter statute, upon the death of the homesteader, transforms what had been merely a privilege, an immunity, into a vested estate, and withdraws that estate from the reach of all creditors, except those whose claims have been made a legal charge on the land by the homesteader during his lifetime. Maupin v. Longacre, 288 S.W. 58." And this court has repeatedly held that such facts may be invoked even in a collateral proceeding. Dennis v. Gordon, 289 Mo. 1; Patton v. Buxton, 238 S.W. 118. (6) An administrator is prohibited alike from purchasing for himself through an agent, and from purchasing as an agent for another. 2 Woerner Amer. Law of Admr. (2 Ed.) Star Sec. 1084. And cannot purchase directly or indirectly. Sec. 167, R.S. 1899; Gilmore v. Thomas, 252 Mo. 147; Bopst v. Williams, 229 S.W. 800.

J.O. Allison for respondent.

(1) The sale of real estate by executors and administrators for the payment of debts of the deceased is entrusted to the probate court which, for that purpose, embodies the wisdom, justice and power of the state. Such sales are called "judicial sales." They are made by the court. The administrator is the mere agent of the court, which is the real vendor. Noland v. Barrett, 122 Mo. 191; Rhodes v. Bell, 230 Mo. 159; Blickensderfer v. Hanna, 231 Mo. 110; Brown v. Marshall, 241 Mo. 748. (2) It is the deliberate policy of the law to uphold such judicial sales, in order to encourage bidders so that the property of deceased debtors may not be sacrificed because of doubts as to the validity of such sales. Johnson v. Beazley, 65 Mo. 258; Camden v. Plain, 91 Mo. 131; Jones v. Manley, 58 Mo. 565; Lovitt v. Russell, 138 Mo. 474. (3) The acts of an administrator after his appointment and until his letters are revoked are not subject to collateral attack for any reason. Riley's Admr. v. McCord's Admr., 24 Mo. 265; Johnson v. Beazley, 65 Mo. 250; Brawford v. Wolfe, 103 Mo. 391; Dunn v. Bank, 109 Mo. 90; Macey v. Stark, 116 Mo. 481; Rogers v. Johnson, 125 Mo. 202; Cox v. Boyce, 152 Mo. 576. (4) The presumption as to jurisdiction and regularity of the proceedings of probate courts is the same as to the circuit courts. Noland v. Barrett, 122 Mo. 181; Rogers v. Johnson, 125 Mo. 202; Rolosan v. Riggs, 274 Mo. 522. (5) Etta Walters, cannot be heard to say that the sale was void on the ground that she had no notice. She was not an heir or devisee of her husband, and the statute only requires personal notice to heirs and devisees. Desloge v. Tucker, 196 Mo. 587; Brawford v. Wolfe, 103 Mo. 391. (6) When the judgment recites "that all the parties thereto had been served with process according to law," or words to that effect, it is conclusive upon all parties to the suit. Johnson v. Kerkhoff, 35 Mo. 291; Latrielle v. Dorleque, 35 Mo. 233; Miller v. McCog, 50 Mo. 214. (7) Approval of report of sale is a final judgment and cannot be attacked in a collateral proceeding. Robbins v. Boulware, 190 Mo. 33; Wolf v. Robinson, 20 Mo. 460; Camden v. Plain, 91 Mo. 129; Sims v. Gray, 66 Mo. 616; Johnson v. Beazley, 65 Mo. 250; Henry v. McKeslie, 78 Mo. 416; Bray v. Adams, 114 Mo. 491; Reed Brothers v. Nickolson, 158 Mo. 631; Covington v. Chamblin, 156 Mo. 587. (8) Etta Walters was not an heir, but merely a doweress, and lost consummate dower by limitation. Care v. Wells, 5 S.W. (2d) 641. She did not become entitled to one-half of her husband's estate by operation of law without election. The unassigned rights of dower and quarantine rights of Harriet Walters, in the land of her husband, did not prevent the estate of inheritance vesting in his son J. Edward Walters, upon the death of his father, George W. Walters. Null v. Howell, 111 Mo. 273. Actual possession of the husband of Etta Walters was not essential to her right of dower attaching. Davis v. Evans, 165 Mo. 165. (9) The evidence shows beyond all doubt, that J. Edward Walters, never acquired a homestead in the land in question. Harriet Walters, widow of Geo. W. Walters, had homestead and dower in said 100-acre tract, and her dower never having been set off she had quarantine in the whole 100-acre tract owned by Geo. W. Walters at his death. She had homestead, dower and quarantine in said farm down to the time of her death, and in possession thereof. Thus, she had the full and complete and exclusive possession and occupancy of every foot of the 100-acre tract down to her death; and J. Edward Walters, or anybody else, could not have possession of the same or any part of it without her consent; in other words, could be only tenants under her. There can be no such thing as two homesteads in the same property at the same time. That is axiomatic. Homestead is a possessory right. It is clear that J. Edward Walters did not have or claim homestead in the 100-acre tract at the time of his death, and having none, his widow, Etta Walters, had none.


This suit was brought in the circuit court by Ann Estelle Scanland and Reuben F. Roy, as plaintiffs, claiming ownership of the property here in controversy — 100 acres of land in Ralls County — under a deed made in March, 1910, to Charles B. Scanland and Reuben F. Roy, by Jesse B. Jones, as administrator de bonis non of J. Edward Walters, deceased. After the making of the administrator's deed Charles B. Scanland died intestate, leaving no descendants, and his widow, Ann Estelle Scanland, elected to take one-half of his estate. The common source of title is George W. Walters, who, at the time of his death in March, 1901, owned and occupied, as his homestead, the 100 acres of land here involved. George W. Walters died intestate, leaving Harriet Walters, his widow, and their son, J. Edward Walters, sole heir of George W. Walters. J. Edward Walters died in December, 1902, intestate, leaving no descendants, but leaving his widow, Etta Walters. At the time of the death of George W. Walters, J. Edward Walters and his wife Etta, as well as George W. Walters and his wife, were living upon the land in controversy. J. Edward Walters lived on the land until his death. The order of sale of the land was made in 1909, by the Probate Court of Ralls County, in the administration of the estate of J. Edward Walters, deceased, for the payment of his indebtedness, a demand for approximately $1,000 in favor of Charles B. Scanland. The order was that the land be sold ...

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