Stevenson v. Smith

Decision Date15 June 1905
Citation88 S.W. 86,189 Mo. 447
PartiesSTEVENSON et al. v. SMITH et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Linn County; Jno. P. Butler, Judge.

Action by George Stevenson and others against William Smith and others. From a judgment for defendants, plaintiffs appeal. Reversed.

West & Bresnehen, for appellants, cited, inter alia, Richardson v. Champion, 143 Mo. 538, 45 S. W. 280; Rice et al. v. Shipley et al., 159 Mo. 399, 60 S. W. 740; Crawford v. Jones, 163 Mo. 577, 63 S. W. 838; Jones v. Elkins, 143 Mo. 647, 45 S. W. 261; Bowen v. McKean, 82 Mo. 594; In re Ferguson's Estate, 124 Mo. 574, 27 S. W. 513.

E. R. Stephens and A. W. Mullins, for respondents.

LAMM, J.

Rebecca Smith died intestate in October, 1901, in Linn county, owning no property in her own name, and leaving the respondent William Smith, a son, and certain other sons and daughters, and the descendants of those dead, her only heirs at law. Certain of her surviving children, together with certain of her adult grandchildren, and certain minors of the same blood kin through their curator, brought this suit in August, 1902, against William Smith and certain minor nonresident grandchildren, and one Jackson Fyke and one J. C. Meacham, the object and general nature of which was to declare and establish a resulting trust in said William Smith in 120 acres of land in Linn county, described as follows: The N. ½ of the S. E. ¼ and the N. E. ¼ of the S. W. ¼ of section 3, township 57, range 19; containing 120 acres, more or less—in favor of the heirs of said Rebecca. The interest of Jackson Fyke in the land remains undisclosed. The interest of defendant Meacham is alleged by the petition and admitted by the answer of William Smith to be that of a present purchaser of said real estate, together with an adjoining tract of 120 acres, lying adjacent and south of the land in question, and owned by respondent William, from him, without notice of the said trust or the equities of Rebecca Smith's heirs, under an executory contract of purchase for $8,400, on which Meacham paid $250 as an advance payment—the balance of the purchase money being due on March 1, 1903—and which contract of purchase the said Meacham was entitled to enforce, and by which it is alleged in the petition he obligated himself to pay one-half the entire purchase price, or $4,200, for so much of the said real estate as was held in trust.

The petition is a voluminous pleading, which, in substance and effect, after setting forth the relationship of the parties, and alleging their respective aliquot interests as heirs of Rebecca Smith, avers that Rebecca was the owner in fee of said 120 acres of land; that the legal title at her death and for many years prior thereto was, and still is, in the name of her son William, and that he held the same in trust for the use and benefit of Rebecca, his mother, and since her death in trust for her heirs; that in 1884 Rebecca Smith owned a large amount of money and personal property, and placed $3,500 thereof in the hands of her son William to invest in real estate in Linn county for her use and benefit; that the said William purchased the described real estate with $2,400 of the said money and means of his mother, in pursuance of an understanding with her to that effect, but took the legal title in his own name, and thereafter held it in trust as aforesaid; that William, ever since said purchase, and until the death of his mother, acknowledged and recognized the trust relation; that in 1898 he borrowed $3,000, and secured it by a trust deed covering the said trust estate, as well as the said tract of 120 acres lying immediately south and adjoining the same, and which said borrowed money remains unpaid, and which said trust deed is alive and in force; that the security of said trust deed should be first enforced and exhausted against the 120 acres of land owned by William in fee; that William Smith is insolvent; that the $4,200 to be paid by Meacham for the land held in trust, the premises considered, constitutes a trust fund belonging to, and subject to division between, the heirs of Rebecca Smith; that defendant William refuses longer to recognize the trust relation, and refuses to account to the other heirs for the proceeds of any part of the said real estate, and threatens to and will convert the same to his own use. The prayer is for a decree that William Smith holds the legal title to said first-mentioned real estate in trust for the use, benefit, and enjoyment of the heirs of Rebecca Smith; that the said heirs be decreed entitled to the proceeds of one-half of the Meacham sale in the proportion stated in the petition; that $4,200 of the Meacham purchase money should be decreed paid into court for the use and behoof of said heirs, and that upon such payment into court of said trust fund, and the payment by Meacham to William Smith of the share of the purchase money arising from the sale of Smith's own land, the title to all the land be decreed vested in Meacham, and that the share of the purchase money impressed with the said trust be partitioned among the heirs of Rebecca Smith in proportion to their respective interests; and that the $3,000 deed of trust be decreed to be first enforced against William's moiety of the land, or be satisfied out of his share of the proceeds of the Meacham sale.

The separate answer of the defendant William Smith raises the only issues (the other defendants defaulting), and, after admitting the death and intestacy of Rebecca Smith as alleged, it denies she was the owner of the real estate in question, and avers that, had she died seised or possessed of any estate, then the plaintiffs and defendants, together with Oscar Crossland and one ____ Preston, grandchildren of hers, and entitled as such to certain interest in her estate, would be the heirs at law of Rebecca Smith. The answer then alleges that on the 29th day of May, 1884, the defendant William contracted to purchase of James O. Crandall all the real estate in question, consisting of 240 acres, for the price and sum of $4,800, and received Crandall's title bond for a conveyance to be executed on the 1st day of March, 1885; that, in compliance with said bond, the said Crandall and his wife on the 27th day of November, 1885, executed a general warranty deed to defendant to all said real estate; that Rebecca Smith was possessed of certain money and means acquired out of the estate of her deceased husband, defendant's father, on account of her dower interest in his estate in Illinois, where her husband died. And the answer then proceeds as follows: "That after said defendant purchased said 240 acres of land aforesaid, a part of which is described in plaintiffs' petition, said defendant received from his mother, said Rebecca Smith, her dower money aforesaid, to the amount of $1,500, and that amount only, and which he used in part payment for said 240 acres of land, and that it was agreed between him and his mother that she was to have an interest in said land, the same, and that only, as a dower interest therein, for and during her natural life, the same as she had owned in her deceased husband's estate in Illinois, in consideration of said money so furnished said defendant, and at her death said right and interest in said land was to absolutely terminate and end. That, by a subsequent arrangement between said defendant and his mother, she, with one of her sons, a brother of said defendant, occupied and used a part of said 240 acres of land for a considerable period of time, and that while they so occupied and used said land, said defendant furnished his mother, upon her request so to do, a large amount of money, stock, and farm supplies, used and consumed by herself and said son, with whom she was then living; amounting in the aggregate to the sum of $1,760, and more. That said defendant also paid out for his mother, with his own money and means, the further amount of $450.45, in the aggregate, after he had received said sum of $1,500 from her. That said defendant's mother and her son with whom she undertook to carry on farming and stock raising for a time on said land made a failure in their said attempt, and lost substantially all his mother had invested in said business, to the amount, and more, as aforesaid; and having made such failure, and having used up and expended largely more money and means furnished by said defendant than the $1,500 he had theretofore obtained from her, she returned to said defendant's home, where she had resided before undertaking said farming business, and thereafter resided with said defendant until her death, and that during said time, after her return to his home, said defendant kept, maintained, cared for, and supported her at his own expense, and entirely out of his own means, and that at her death he had her remains conveyed back to the state of Illinois for interment, and paid all the expenses connected...

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