Spurlock v. Burnett

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBurgess
PartiesSPURLOCK v. BURNETT.
Decision Date02 December 1902
70 S.W. 870
170 Mo. 372
SPURLOCK
v.
BURNETT.
Supreme Court of Missouri, Division No. 2.
December 2, 1902.

HUSBAND AND WIFE — HUSBAND'S INTEREST IN WIFE'S ESTATE — ACTION — PARTIES.

1. Rev. St. § 658, provides that, when a complete determination of a controversy cannot be had without the presence of other parties, the court may order them to be brought in. Section 4518a provides that when a wife shall die without any child or descendants in being, capable of inheriting, her widower shall be entitled to one-half of her estate absolutely, subject to her debts. A wife's will gave her husband a very small legacy, and he claimed an interest in the realty, and filed a paper purporting to be a renunciation of the will. The executor of the wife, who claimed that the statute was not applicable, sued to quiet title. Held that, all the legatees in the will of the wife not being parties, it was error for the court to enter judgment without bringing them in.

Appeal from circuit court, Atchison county; Gallatin Craig, Judge.

Suit by John E. Spurlock, as executor of Mary A. H. Burnett, against Rodney Burnett. From a judgment for defendant, plaintiff appeals. Reversed.

Jno. P. Lewis, for appellant. L. D. Ramsey, for respondent.

BURGESS, J.


This is a proceeding in which the plaintiff, Spurlock, as executor of Mary A. H. Burnett, deceased, sues to quiet title to certain land described in the petition, and to invoke the aid of the court in the administration of her estate. The facts are but few, and as to them there is no controversy. They are briefly stated by plaintiff as follows: Mary A. H. Burnett died January 23, 1899, leaving, in real and personal property, about $10,000. She had been married to defendant, Rodney Burnett, about 22 years, but had been separated (though not divorced) from him for 10 years before her death. She died testate and without children or descendants. She was a widow at the time of her marriage to Rodney Burnett; her former husband's name being Thos. L. Holland, who had left a will, under a construction of which the Atchison circuit court, at September term, 1899, held that between $4,000 and $5,000 of her estate — more than she had supposed — properly belonged to said Thos. L. Holland's estate. This reduced her property to between $5,000 and $6,000, in both real and personal property. Under her will she required all her property, real and personal, to be sold and converted into money as soon as it could judiciously be done; and after paying her debts and two or three legacies, one of which was $25 to her husband, she required the balance of her estate to be divided into two equal parts. One half she gave to charitable purposes, and the other half she distributed to certain of her relatives. She left several pieces of real property. The will, as stated, gave full power to the executor to sell the lands, — in fact, required him to do so. No children were ever born of the marriage with Rodney Burnett. Her will gave him the $25 in lieu of all interest of...

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5 practice notes
  • Austin Powder Co. v. Commercial Lead Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 1 December 1908
    ...can order the other creditors and shareholders brought in, and take an account and distribute the assets ratably. Spurlock v. Burnett, 170 Mo. 372, 377, 70 S. W. 870. But in Washington Savings Bank v. Butchers' & Drovers' Bank, 130 Mo. 155, 31 S. W. 761, the rule regarding a shareholder's r......
  • Kinnerk v. Smith, No. 29612.
    • United States
    • Missouri Supreme Court
    • 28 July 1931
    ...68 Ga. 63; Mersman v. Mersman, 136 Mo. 244; Hayden v. Marmaduke, 19 Mo. 403; Bredell v. Collier, 40 Mo. 287; Spurlock v. Burnett, 170 Mo. 372; Waters v. Herboth, 178 Mo. 166. The plaintiff in this suit, being ordered as executor to sell the real estate and being given the power in the will ......
  • Deppen v. German-American Title Co.
    • United States
    • Court of Appeals of Kentucky
    • 9 December 1902
    ...if he had made such, he would have been unable to learn the true condition. The chief bookkeeper and also the assignee testified in [70 S.W. 870.] this case, and neither could give the real condition of the company at any date. As an inducement to him to take this amount of stock, and to le......
  • State v. Bandall, No. 19924.
    • United States
    • Court of Appeal of Missouri (US)
    • 8 November 1927
    ...parties. Zeitinger v. Hargadine-McKittrick Dry Goods Co., supra; O'Fallon v. Clopton, 89 Mo. 284, 10 S. W. 302; Spurlock v. Burnett, 170 Mo. 372, 70 S. W. We understand that, as a general rule, the question of whether a new party shall be brought in rests in the sound discretion of the tria......
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5 cases
  • Austin Powder Co. v. Commercial Lead Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 1 December 1908
    ...can order the other creditors and shareholders brought in, and take an account and distribute the assets ratably. Spurlock v. Burnett, 170 Mo. 372, 377, 70 S. W. 870. But in Washington Savings Bank v. Butchers' & Drovers' Bank, 130 Mo. 155, 31 S. W. 761, the rule regarding a shareholder......
  • Kinnerk v. Smith, No. 29612.
    • United States
    • Missouri Supreme Court
    • 28 July 1931
    ...68 Ga. 63; Mersman v. Mersman, 136 Mo. 244; Hayden v. Marmaduke, 19 Mo. 403; Bredell v. Collier, 40 Mo. 287; Spurlock v. Burnett, 170 Mo. 372; Waters v. Herboth, 178 Mo. 166. The plaintiff in this suit, being ordered as executor to sell the real estate and being given the power in the will ......
  • Deppen v. German-American Title Co.
    • United States
    • Court of Appeals of Kentucky
    • 9 December 1902
    ...if he had made such, he would have been unable to learn the true condition. The chief bookkeeper and also the assignee testified in [70 S.W. 870.] this case, and neither could give the real condition of the company at any date. As an inducement to him to take this amount of stock, and to le......
  • State v. Bandall, No. 19924.
    • United States
    • Court of Appeal of Missouri (US)
    • 8 November 1927
    ...parties. Zeitinger v. Hargadine-McKittrick Dry Goods Co., supra; O'Fallon v. Clopton, 89 Mo. 284, 10 S. W. 302; Spurlock v. Burnett, 170 Mo. 372, 70 S. W. We understand that, as a general rule, the question of whether a new party shall be brought in rests in the sound discretion of the tria......
  • Request a trial to view additional results

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