Shepperd v. Fisher

• Decision Date: 29 June 1907
• Citation: 103 S.W. 989,206 Mo. 208
• Parties: SHEPPERD et al. v. FISHER et al.
• Court: Missouri Supreme Court

103 S.W. 989

206 Mo. 208

SHEPPERD et al. v. FISHER et al.

Supreme Court of Missouri. Division No. 1.

June 29, 1907.

1. WILLS — DEVISE — PERPETUITIES.

The rule against perpetuities was violated by a devise to the widow for life, with remainder to a son, in trust for a daughter during her life and at her death to her bodily heirs, if such bodily heirs should have issue, forever, but to revert to the devisor should the daughter's heirs die without issue.

2. WILLS — VALID DEVISE — EFFECT OF INVALID DEVISE.

A homestead was devised to the widow for life, and on her death to testator's daughters, and on their death to their bodily heirs, etc.; portions being willed to sons-in-law conditioned upon their discharging a mortgage, such portions otherwise to be sold to pay the debt. Held, that the testator did not intend to create and dispose of separate and independent estates regardless of a general plan of disposing of his entire estate, and hence the valid devises must fall with those invalid for violating the rule against perpetuities.

3. PARTITION — WHEN WILL LIE.

If defendants were in adverse possession of land, claiming it against plaintiffs, partition would not lie, but plaintiffs would first be required to resort to ejectment to test the rights of possession.

4. SAME — ADVERSE POSSESSION — CLAIM UNDER WILL.

The possession of land by defendants claiming under a will was not adverse to the interest of testator's other heirs, preventing a partition suit by them, since adverse possession preventing such suit must be of such character as, if continued for sufficient time, would ripen into perfect title under limitations.

5. APPEAL — REVIEW — HARMLESS ERROR — EVIDENCE.

Any error in permitting persons to testify was harmless, where everything they testified to was admitted to be true.

6. PARTITION — INCIDENTAL RELIEF — ADVANCEMENTS — ADJUDICATION.

Under the express terms of Rev. St. 1899, § 2913 [Ann. St. 1906, p. 1675], on partition of intestate's land, advancements made by him to a son may be stated and adjudicated.

Appeal from Circuit Court, Henry County; Waller W. Graves, Judge.

Bill by D. E. Shepperd and others against Adam Fisher and others. Defendants appeal from the judgment. Reversed and remanded.

The plaintiffs filed this bill of equity in the circuit court of Henry county against the defendants, having for its object the construction of the last will and testament of C. S. Fisher, deceased, and a prayer for partition of the real estate.

The petition alleged, substantially, that C. S. Fisher died testate, in the county of Henry, and state of Missouri, on the ____ day of February, 1901: that his will was duly probated, and Adam Fisher qualified as executor and was then acting as such; that said will is in words and figures as follows (formal parts omitted):

"Know all men by these presents: That I, S. C. Fisher, of Henry County, and State of Missouri, being in good health, but declining years, of sound mind and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me at any time heretofore made.

"And as to my worldly estate, and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof, in the manner following, to-wit:

"First. My will is that all just debts and funeral expenses shall by my executors hereinafter named, be paid out of my estate, as soon after my decease as shall by them be found convenient, out of the most available assets.

"Second. To my beloved wife, Martha Jane Fisher, I give all of my personal property, of whatsoever kind, together with all household goods, to have as her separate and sole property, and further, all of my homestead consisting of seven hundred and thirty-two acres, to have and to hold for and during the natural lifetime of the said Martha Jane Fisher as her sole and separate estate.

"Third. To my beloved daughter, Mary Ida Swindell, I will one dollar as her separate estate.

"Fourth. To my beloved daughter, Susan Ellen Shepperd, I will one dollar as her separate estate.

"Fifth. To my dearly beloved son, Adam, I will in trust for Mary Ida Swindell, my daughter aforesaid, for and during the lifetime of the said Mary Ida Swindell, three hundred and sixty-six acres off of the homestead, to vest on and after the death of my beloved wife, Mary Jane Fisher, fully described as follows, to-wit: Forty-nine acres in south one-half of sec. 34; 160 acres, all of S. W. one-fourth, and 80 acres, all of the E. one-half of S. E. one-fourth, and 15 acres off N. pt. W. ½ of S. W. ¼ all in sec. 33, range 27, township No. 44; and 62 acres, commencing at the center of sec. 33, range 27, township 44, thence north 62 rods, thence west to sec. 32, thence due south 62 rods, thence due east to the point of beginning; to have and to hold during the life of the said Mary Ida Swindell as her separate estate and at her death to her bodily heirs, if the said bodily heirs have issue, forever, but should the said bodily heirs of the said Mary Ida Swindell die without issue, then this estate is to revert to this grantee, his heirs, assigns or legal representatives.

"Sixth. To my beloved son, Adam Fisher, I will in trust for Susan Ellen Shepperd, my daughter aforesaid, for and during the lifetime of the said Susan Ellen Shepperd, three hundred and sixty-six acres of land off of the homestead, to vest on the death of my wife, being all that portion of land owned by me at this time in sections 33 and 34, range 27, township 44, Henry County, Missouri, less the above described land willed to my daughter, Mary Ida Swindell, to have and to hold for and during her lifetime as her separate estate, and at the death of the said Susan Ellen Shepperd to her bodily heirs, if they have issue, forever, but should the said bodily heirs of the said Susan Ellen Shepperd die without issue, then this estate is to revert to this grantee, his heirs, assigns or legal representatives.

"Seventh. Since there is at this time deeds of trust amounting to four thousand dollars against the above homestead should it be not paid at my decease, or a part still remaining unpaid, then upon the payment of one-half the then indebtedness against said homestead by my son-in-law, Thomas M. Swindell, I will that the said T. M. Swindell have and hold in fee simple forever, one hundred and twenty-nine acres of the above homestead, fully described as 49 acres in section 34, and 80 acres, the E. ½ of the S. E. ¼ of section 33, range 27, township 44, Henry County, Missouri, said 129 acres to be taken from that portion willed to my son, Adam Fisher, in trust for Mary Ida Swindell. The said trust to the use of Mary Ida Swindell to be then reduced to two hundred and thirty-seven acres.

"Eighth. Upon the payment of the then one-half indebtedness against said homestead by my son-in-law, David E. Shepperd, I will that the said David E. Shepperd have and hold forever in fee simple, one hundred eight and three-fourths acres off of the above homestead, being all that land at this time owned by me in the N. ½ of section No. 34, range 37, township 44, Henry County, Missouri, said 108¾ acres to be taken from that portion willed to my son, Adam, in trust for Susan Ellen Shepperd. The said trust for Susan Ellen Shepperd to be reduced to two hundred fifty-seven and one-fourth acres.

"Ninth. I will, if deemed best by executrix and executor to be hereinafter named, and the above trustee for heirs, Adam Fisher, that that portion of land willed to T. M. Swindell and D. E. Shepperd, be sold at an early day after my decease, that that portion be sold and the proceeds applied to the above named deeds of trust, but that the option of paying off said deeds of trust and retaining the above lands, be given the above named T. M. Swindell and D. E. Shepperd as described and set forth in the seventh and eighth divisions of this will and testament.

"Tenth. To my beloved son, Adam Fisher, I will one dollar as his separate portion of my estate undivided.

"Eleventh. I publish this fact, to-wit: I have deeded to my son, Adam Fisher, nine hundred and thirty-six acres of land situated in Henry County, Missouri, the consideration of which was that he pay four thousand dollars to lift deed of trust now on lands a part of my homestead, and for which I have no note. Now, in case said Adam Fisher fails to redeem said deed of trust on said homestead before my decease, then the said amount, four thousand dollars, be and is hereby made the property of my daughters, Mary Ida Swindell and Susan Ellen Shepperd in equal proportions.

"Twelfth. I will that nothing in this last will and testament shall authorize my son, Adam Fisher, as trustee for Mary Ida Swindell and Susan Ellen Shepperd aforesaid to assign or transfer, or in any way dispose of said trust, and that the use and proceeds of said trust shall remain to the said Mary Ida Swindell and Susan Ellen Shepperd in the way and manner aforesaid.

"And lastly, I do nominate Martha Jane Fisher and David E. Shepperd to be executrix and executor of this, my last will and testament.

"In testimony whereof, I, the said C. S. Fisher, have to this, my last will and testament, contained on two sheets of paper and on six pages of said sheets of paper, and to every page of said paper subscribed my name and affixed this, my seal, this 3rd day of May A. D. 1899."

The testator afterwards added a codicil to the will, changing the name of his executor but there were no material changes regarding the disposition of his property.

That at the time of testator's death he was the owner in fee of the 732 acres of land described in said will; that he left surviving him his widow, Martha Jane Fisher, one of the defendants; two daughters, Mary Ida Swindell, wife of Thomas M. Swindell, who was 32 years of age, and Susan Ellen Shepperd, wife of David E....