Schee v. Schee
| Decision Date | 24 March 1928 |
| Docket Number | No. 26435.,26435. |
| Citation | 4 S.W.2d 760 |
| Parties | C.E. SCHEE and LIZZIE CAROTHERS, Appellants, v. LOTTA B. SCHEE. |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. — Hon. N.M. Pettingill, Judge.
AFFIRMED.
Charles Hiller and J.A. Whiteside for appellants.
(1) The court, in its discretion, could have granted plaintiffs leave to amend their petition after the interlocutory decree and should have done so. Secs. 1274, 1280, R.S. 1919; Esty v. Walker, 253 S.W. 38; State ex rel. v. Thompson, 81 Mo. App. 549; Moran v. Davis Grain Co., 226 S.W. 84; Jackson v. Rys. Co., 232 S.W. 752; Bryant v. Rys. Co., 217 S.W. 632; Fogle v. Pindell, 248 Mo. 65; Cameron v. Protective Assn., 275 S.W. 988; Solomon v. Light & Power Co., 262 S.W. 367; State v. Tel. Co., 263 S.W. 419; Loveland v. Chapman, 267 S.W. 70; Amos v. Fleming. 285 S.W. 134; Kissick v. Kissick, 279 S.W. 764; Ratcliff v. Ratcliff, 288 S.W. 794. (2) This appeal being taking from the order of the court overruling plaintiffs' motion to set aside decree and for leave to file amended petition, motion for new trial is unnecessary. Parker v. Waugh, 34 Mo. 340; Bruce v. Vogel, 28 Mo. 104; City of St. Louis v. Brooks. 107 Mo. 380; Shohony v. Railroad, 223 Mo. 659; Roden v. Helm, 192 Mo. 71. The only error presented here being the order of the court overruling plaintiffs' motion to set aside the decree and for leave to file amended petition, exception to which was saved, in the record, at the time the order was made, no separate bill of exceptions was necessary. (3) A widow is entitled to dower in only such lands of which her husband, or any person to his use, was seized of an estate of inheritance, at any time during the marriage. Sec. 315, R.S. 1919; Gentry v. Woodson, 10 Mo. 224; Warren v. Williams, 25 Mo. App. 22; White v. Drew, 42 Mo. 561; Pavne v. Pavne, 119 Mo. 174; Ellis v. Kyger, 90 Mo. 600; Miller v. Miller, 148 Mo. 113; Van Pelt v. Parry, 218 Mo. 680. That James M. Schee was never seized of an estate of inheritance in the lands in controversy, and the respondent is not entitled to dower therein.
Hugh Sloan and T.L. Montgomery for respondent.
(1) The appellants filed no motion for a new trial or in arrest of judgment and no bill of exceptions, and only record proper can be considered. Strong v. Strong, 216 S.W. 543; State ex. inf. v. Morgan, 268 Mo. 265; Cole v. Parker-Washington Co., 276 Mo. 229; Davis v. Real Estate Inv. Co., 249 Mo. 493; Bremer v. Simpson, 226 S.W. 947; Woodhead v. Berry, 211 S.W. 711; Blanchard v. Dorman, 236 Mo. 436. (2) The plaintiff tendered no amended pleading. The court was never at any time advised of the nature of any amendment and plaintiff's motion to amend was properly overruled. The amendment was within the discretion of the trial court. He exercised this discretion and rightly overruled it, and ordered distribution. There is nothing for review. Growney v. O'Connell, 272 Mo. 178; Remieman v. Agr. & Mec. Assn., 156 Mo. 407; St. Louis v. Boyce, 130 Mo. 572. (3) It devolves upon appellants to show that the court committed error in overruling plaintiffs' motion to amend the pleadings and in overruling plaintiffs' motion to amend. This, they have not done. We are entitled to the judgment of the court on this record. (4) Whether the estate of James was equitable or legal at his death, his widow would be entitled to dower, and if dower the ownership of one-half interest in the estate. Cromwell v. Wolf, 148 Mo. 554. (5) The wife of a beneficiary of a trust has dower. Sec. 315, R.S. 1919; Link v. Edmondson, 19 Mo. 486; Bartlett v. Tinsley, 175 Mo. 319; Evans v. Morris, 234 Mo. 177; 17 C.J. 423: 14 Cyc. 909, 914; Davis v. Evans, 102 Mo. 164.
This is an appeal from a final judgment in partition rendered in the Circuit Court of Clark County. The land involved consists of an eighty-acre tract in that county, which was owned by John Schee, who died testate in 1901. In the fourth clause of his will he made the following devise.
The plaintiffs, C.E. Schee and Lizzie Carothers, are the son and daughter of the testator. The defendant, Lotta B. Schee, is the widow of James M. Schee the beneficiary named in the above-quoted clause of the testator's will. These parties are alleged in the petition to be, and it was shown as a fact that they were, the only legal heirs of James M. Schee.
The defendant, served by publication, filed no formal pleading. The trial court thereupon, at its August term, 1920, after hearing the testimony of witnesses and other evidence and no commissioners being appointed on account of its being shown that a sale of the land was necessary, entered an interlocutory decree, the findings of which were that the plaintiffs, C.E. Schee and Lizzie Carothers, were the brother and sister and that Lotta, Schee was the widow of James M. Schee, deceased, and that these parties were all of his legal heirs; and that the defendant, as the widow of the deceased, was entitled to a dower interest in the land described in the petition and that the plaintiffs were entitled to the remainder of same; that partition be made of the same according to the interests of the respective parties; that the land not being susceptible of division in kind without prejudice to the interests of the parties, it was ordered that it be sold by the sheriff at public sale for cash at the December term, 1920, of the Clark County Circuit Court.
Thereafter, at the December term, 1920, the defendant, Lotta Schee, filed a motion to set aside the interlocutory decree rendered at the preceding August term, alleging that her husband, James M. Schee, deceased was, at the time of his death, the owner of the land described in the petition herein; that no administration had been taken out on his estate; that his interest in said land was in his lifetime held in trust for him; that under the laws of this State, as his widow, she is entitled to elect whether she will take dower or one-half interest therein; that on the 16th day of November, 1920, she executed a declaration filed with the Recorder of Deeds of Clark County whereby she elected to take a one-half interest in the real and personal estate of her late husband; wherefore she prays that the interlocutory decree rendered by the court on the 7th day of August, 1920, be set aside and that a final decree be entered herein awarding to her one-half of the said real estate and the rents and profits thereof. This motion was, after a hearing on the 9th day of December, 1920, taken under advisement by the court.
On the 10th day of December, 1920, the sheriff reported that he had sold the land as ordered, and the sale was approved and the sheriff in open court executed and acknowledged a deed to the same to the purchaser.
The record shows no entry or action in or by the trial court in this proceeding until the August term, 1922, when the plaintiffs filed a motion to set aside the interlocutory decree and grant them leave to file an amended petition, the burden of which is that, as the defendant had asked that the decree be set aside and adjudge her interest in the land, the plaintiffs ask that a determination of the rights and interests of the parties hereto in and to said lands should be ascertained and determined in order that the court may properly and lawfully order a distribution of the proceeds of the sale, and that inasmuch as there is a controversy between the parties hereto relative to the respective rights and interests of plaintiffs and defendant in and to said lands, the plaintiffs herein join in the request of defendant that said interlocutory decree be set aside, and plaintiffs pray that they may have leave to file an amended petition in said cause in which, among other things, said plaintiffs will pray the court to ascertain and determine the respective rights, interest and claims of the parties hereto in and to said land and decree partition thereof.
On December 3, 1923, the court overruled the defendant's motion filed at the December term, 1920, asking the court to set aside the interlocutory decree. On February 20, 1924, the court overruled the plaintiffs' motion to set aside the decree and to permit them to file an amended petition and on the same day entered an order of distribution of the proceeds arising from the sale of the land under the order and judgment of the court rendered December 13, 1920.
I. The action of the trial court in overruling the respondent's motion to set aside the interlocutory decree is Interlocutory not for our consideration. She did nothing to Decree: Motion preserve her objection to the court's...
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