Scheidt v. Crecelius

• Decision Date: 05 March 1888
• Parties: SCHEIDT et al. v. CRECELIUS et al.
• Court: Missouri Supreme Court

7 S.W. 412

94 Mo. 322

SCHEIDT et al. v. CRECELIUS et al.

Supreme Court of Missouri.

March 5, 1888.

WILLS — POWER TO SELL — NECESSITY FOR — IMPEACHMENT OF DISCRETION.

In an action in ejectment, where the defendants claim under a deed from a person who held under a will, giving a life-estate, with power to sell, in case of necessity, the deed may be attacked on the ground that it was not necessary to sell the land, without first having it set aside in a court of equity.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

Otto C. Scheidt et al. brought suit in ejectment against Augusta M. Crecelius et al. to recover certain lands. Judgment for plaintiffs, and defendants appeal.

M. F. Taylor, for appellants. W. F. Broadhead and J. W. McElhinney, for respondents.

NORTON, C. J.

This suit is by ejectment to recover possession of certain lands in St. Louis county, in which the plaintiff obtained judgment, from which defendants have appealed. The common source of title was admitted to be in one John D. Wolff, who died in January, 1846, leaving a paper admitted to probate as his will, so much of which as is necessary to a disposition of the questions arising in the case is as follows: "That all the property which he and his said wife had in possession, be it personal or real estate, or outstanding moneys, that is, all of the specified property which legally belonged to him, should become the sole property of his wife, and should, in fact, after his death, be a bequest, gift and devise from him to her; and that she should, until her death, manage and dispose of it as she pleased; and that he desired to be understood as empowering her, in cases of necessity, to sell not only personal but real property. He also desired that, after the death of his wife, the remainder of his property should be equally divided among his children and heirs, as follows: That the upper half of his landed property, lying on the county road, together with the house standing on it, should fall to his two oldest sons, John and Christian, and that the lower part, together with the buildings on it, should fall to his daughter Elizabeth and his youngest son, John George, as bequest." It appears from the evidence, at the request of the widow, Eva M. Wolff, that in the winter of 1846-47 a parol partition of the land, consisting of something over 200 acres, was made, under which the four children took possession of their respective portions allotted to them, cultivated and improved the same. The portion of land in dispute in this suit fell to the daughter Elizabeth, she being at that time married to one Hartman Herbell, who built a stone house on it, and lived there. In 1856 or 1857 the said Eva, widow of said John, moved into the house, and lived there with her daughter and family. In 1857 or 1858 said Herbell died, and the said Elizabeth, his widow, thereafter intermarried with one John Scheidt, and died in 1872. She had children by her first marriage, who are the defendants in this suit, and also children by the second marriage, who are the plaintiffs in this suit, and base their right to recover as heirs of said Elizabeth under the will of said John D. Wolff, deceased. The children of said Elizabeth by her first marriage, and defendants in this suit, claim the land in suit by virtue of a deed executed by said Eva M. Wolff in 1872, conveying to them a fee to the land in suit after her life-estate. This deed was to take effect in possession after the death of said Eva. It recites that the land was sold in consideration of the sum of one dollar and unpaid indispensable services rendered, said services having been matters of necessity...