Simpson v. Erisner

• Decision Date: 14 March 1900
• Citation: 55 S.W. 1029,155 Mo. 157
• Parties: SIMPSON et al. v. ERISNER et al.
• Court: Missouri Supreme Court

55 S.W. 1029

155 Mo. 157

SIMPSON et al. v. ERISNER et al.

Supreme Court of Missouri, Division No. 1.

March 14, 1900.

EJECTMENT—WHO MAY MAINTAIN — HOLDER OF LEGAL TITLE—WILLS—TRUSTS—APPEAL.

1. Though a judgment of the trial court might be affirmed on appeal, where no declarations of law were asked or refused, and there was no agreed statement of facts, and the evidence was not wholly documentary, still the decision will not be allowed to rest on such grounds, where it would be miscarriage of justice.

2. A testator devised all his property to trustees, in trust to lease, rent, manage, and control the same as they might deem best for the interest of the estate, and out of the rents and profits of the real estate and the proceeds of the personal property, which they were empowered to sell, to provide, first, for the support and maintenance of his widow as long as she lived and remained single, and next for the support and maintenance of his two children until they became of age or married, and next that the whole estate subject to such provisions be divided equally between his two children, with a legacy to his stepdaughter. One of testator's children died, and the mother and remaining child conveyed by warranty deed a portion of the real estate. Held, that during the life of the widow the legal title to the real estate was in the trustees, though they had resigned, and hence the heirs of the testator were not entitled to maintain ejectment against the grantee of the widow and remaining child.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Action by Belle Simpson and others against James Erisner and others. From a judgment for plaintiffs, defendants appeal. Reversed.

This is an action in ejectment to recover an undivided one-sixth interest in 69.53 acres of land in Lincoln county. John H. Simpson married a widow, who had two children, Belle Simpson and Camelia Woodson, who are the plaintiffs in this action. There were born of that marriage two children, Fannie and Riley. Mr. Simpson died January 18, 1876, seised of the land in controversy, besides other real and personal property. By his will he devised all his property, real, personal, and mixed, to John Hutton and John Cockrell (and also appointed them his executors), in trust for the following purposes: To have "full power and authority to lease, rent, manage, and control all my real estate, and to manage and control and dispose of all my personal property, as they may deem best for the interest of my estate," with power to sell the personal, but no power to sell the real, property, and out of the rents and profits of the real estate and the proceeds of the personal to provide—First, for the support and maintenance of his widow, Leonora (with the right to her to occupy the dwelling house, garden, and outhouses), as long as she lived and remained single and unmarried; second, for the support, maintenance, and education of his two children, Fannie and Riley, and his step-daughter Belle Forbush (now Belle Simpson, wife of W. H. Simpson), until they severally became of age or married; third, to pay to his stepdaughter Belle a special legacy of $400 out of the personal property, one year after his death, on condition that by so doing it would not jeopardize the provisions made for the support of his wife and his two children; and, fourth, the whole estate, subject to the said provisions, to be divided equally between his two children, Fannie and Riley, with a further proviso that, if his widow elected to renounce the will, the special legacy to his stepdaughter should thereupon cease and be void. About 15 months after his death Riley died intestate, leaving as his heirs at law his mother, Leonora, his full sister, Fannie (now intermarried with Joseph Nelson), and his two half-sisters, the plaintiffs. On the 24th of December, 1894, the widow, Leonora, and the surviving child of the testator, Fannie Nelson, conveyed this property, by warranty deed, to the defendant James Erisner for a consideration of $1,390, and he entered upon the possession thereof, and has ever since claimed it adversely to every one. The trustee Hutton resigned on the 5th of August, 1887, as did also the trustee Cockrell on the 8th of July, 1878. Thereupon the probate court appointed Josiah Creech administrator de bonis non with the will annexed, and he was still acting as such at the time of the trial of this case. On the 16th of February, 1897, the plaintiffs instituted this action against Erisner to recover an undivided one-sixth interest in the land, to which they became entitled as heirs of their half-brother, Riley Simpson, deceased. Upon their motion, the widow, Leonora, and the half-sister, Fannie Nelson, and her husband, were made parties defendant. The answers are general denials. No instructions were asked, given, or refused. The circuit court entered judgment for the plaintiffs, and defendants appealed.

Norton, Avery & Young, for appellants. Martin & Woolfolk, for respondents.

MARSHALL, J. (after stating the facts).

1. Upon the faith of Sieferer v. City of St. Louis, 141 Mo., loc. cit. 592, 43 S. W. 163, the judgment of the circuit court might be affirmed, because no declarations of law were asked or refused, and hence this court is not advised as to the theory upon which the trial court proceeded, and because this court will not apply the law to the facts unless there is an agreed statement of facts, or the evidence is wholly documentary. But we are not content...