Schuster v. Morton

• Decision Date: 02 June 1916
• Docket Number: No. 17017.,17017.
• Citation: 187 S.W. 2
• Parties: SCHUSTER et al. v. MORTON et al.
• Court: Missouri Supreme Court

187 S.W. 2

SCHUSTER et al. v. MORTON et al.

No. 17017.

Supreme Court of Missouri. Division No. 1.

June 2, 1916.

Appeal from Circuit Court, Cooper County; John M. Williams, Judge.

Statutory proceeding by Viola Schuster and another against Charles E. Morton and another to adjudge and decree title to land. Judgment quieting title in defendant Morton to one-half land in fee and awarding him a life estate in the other one-half, and plaintiffs appeal. Reversed, and cause remanded to enable defendant to amend his answer and make his election whether to claim under the statute or under the will.

Roy D. Williams, of Boonville, for appellants. John Cosgrove and D. W. Cosgrove, both of Boonville, for respondent Morton.

BLAIR, J.

This is a proceeding under section 2535, R. S. 1909, to adjudge and decree the title to nearly 100 acres of land in Cooper county. This appeal is from a judgment of the Cooper circuit court quieting title in defendant to one half of the land in fee and awarding him a life estate in the other half. Both parties claim under Mary E. Morton, who died testate, seised of an estate in fee in the lands in suit. Appellants are devisees under Mrs. Morton's will. Respondent was the husband of testatrix, and also a devisee under the will. Testatrix died without descendants in being capable of inheriting.

The applicable portion of the will in question reads as follows:

"First: I give and devise to my husband, Charles Edwin Morton, for and during his natural life, the farm on which I now live, consisting of ninety-six and forty hundredths (96.40) acres, situated in Lamine township, Cooper county, Missouri, and at his death to my sisters, Mrs. Vinie Plumlee and Mrs. Viola Schuster and Clara Cybeal Roby, who is now living with me at my home, equally, and in case the said Clara Cybeal Roby die before my said husband, I will that the above mentioned farm be divided equally between my two sisters, Vinie Plumlee and Viola Schuster."

The petition alleged the devisees named were the owners of the fee in the entire tract subject to the life estate of respondent; but that respondent made some claim to the fee, adverse to plaintiffs, and prayed that the title be defined and adjudged. Respondent admitted testatrix was his wife, that she executed the will set up, that the title to the land was in her name, and that he claimed an interest in the fee therein. He averred he owned one half the land in fee and a life estate in the other half. The agreed statement shows testatrix died May 2, 1910, leaving no children; that at her death she owned in fee simple the land in suit.

Respondent's position is that under section 350, R. S. 1909, he is entitled to one half the land in fee, and that under his wife's will he is entitled to a life estate in the remaining half. The...