Shelton v. Bragg

• Decision Date: 01 December 1916
• Docket Number: No. 18008.,18008.
• Citation: 189 S.W. 1174
• Parties: SHELTON et al. v. BRAGG et al.
• Court: Missouri Supreme Court

189 S.W. 1174

SHELTON et al. v. BRAGG et al.

No. 18008.

Supreme Court of Missouri, Division No. 1.

December 1, 1916.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Suit for partition by Arcelia Shelton and others against Henry S. Bragg and others. Decree for plaintiffs, and defendants appeal. Reversed and remanded, with directions to dismiss the cause.

Henry Bragg, the father of plaintiffs and above-mentioned defendants, died testate on May 18, 1905, seised in fee and in possession of lots 271 and 272 of Woods' addition to the city of Troy, in the county aforesaid. The second clause of his will reads as follows:

"I will and bequeath to my daughter, Arcelia Shelton, to use, occupy and enjoy during her natural life, my home place in Troy, Mo., and being lots 271, 272 Woods' addition to the city of Troy, Mo., and at her death it is my will and desire that said above described lots or the proceeds thereof be equally divided between all my children, or their heirs to wit: Talbot Bragg, Henry S. Bragg, Elizabeth Carter, Lillie C. Bragg, Jennie Keene and the heirs of said Arcelia Shelton, née Bragg."

The petition alleges that by virtue of said will plaintiff Arcelia Shelton is now vested with an estate for and during her natural life; that although said Arcelia had been married many years, she has no children, has never had any, and by reason of her bodily health expects to have none; that subject to said life estate, plaintiffs Lillie C. Logan and Jennie Keene, and defendants, Henry S. Bragg, Talbot F. Bragg, and Elizabeth Carter, are each entitled to an undivided one-fifth part in fee of the remainder of said real estate; that said real estate is not susceptible of division, without destroying the value thereof; that defendant Talbot F. Bragg is a nonresident, etc. Plaintiffs prayed for partition of said real estate according to the respective interests of the parties aforesaid, and asked that the real estate aforesaid be sold, and the proceeds divided between said parties in accordance with their respective interests, etc. Talbot Bragg and wife filed answer, disclaiming any interest in said real estate, and alleged therein that on March 18, 1913, for value received, they executed and delivered to defendant Elizabeth Carter a warranty deed for an undivided one-sixth (1/6) interest in said real estate. The defendants, except Talbot Bragg and wife, filed their demurrer to the petition aforesaid, which, without caption and signatures, reads as follows:

"Second. That plaintiffs by their petition seek to partition certain lands therein described between plaintiffs and defendants, and that on the face of said petition, it is shown that said lands are not subject to partition by the plaintiffs, because it is in contravention of the will of Henry Bragg, under whom plaintiffs claim title.

"Third. Because, as appears from the petition, Arcelia Shelton has no interest or title in the lands described in said petition that would be subject to partition."

On July 8, 1913, the demurrer aforesaid was overruled. Defendants Henry S. Bragg and Elizabeth Carter elected to stand on their demurrer, and refused to plead further. Thereafter, on the date last mentioned, the cause was tried by the court, said defendants (Henry S. Bragg and Elizabeth Carter) not participating, and the court rendered judgment, partitioning said real estate in accordance with the prayer of said petition. After finding that said Talbot F. Bragg had conveyed his interest to defendant Elizabeth Carter, the court ordered a sale of said real estate. Defendants Henry S. Bragg and Elizabeth Carter appealed the cause to this court.

R. H. Norton and Avery, Young, Dudley & Killam, all of Troy, for appellants. B. H. Dyer, of St. Charles, for respondents.

RAILEY, C. (after stating the facts as above).

This case is before us upon appellants' demurrer to the petition. The latter, among other things, alleges:

"That said Arcelia Shelton, although having been married for many years, has no children, has never had any, and because of the condition of her bodily health she expects to have none."

As the demurrer admits the truth of above allegation, it is fair to assume that testator, on account of Mrs. Shelton's physical condition, gave her a life estate in his home place, in order that she might have a permanent home during her life. He provided in paragraph 2 of the will, that:

"At her death, it is my will and desire that said above described lots or the proceeds thereof be equally divided between all my children," etc.

The above language is plain, unambiguous, and easily understood. In the clearest manner possible, it contemplates that the above property shall remain as the permanent home of Mrs. Shelton during her life; that at her death, and not before, it should be partitioned, or the proceeds thereof divided, between all of his children, etc. We are admonished by the law of this state, in construing wills, to have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters...