Stewart v. Jones

• Decision Date: 31 March 1909
• Citation: 118 S.W. 1,219 Mo. 614
• Parties: STEWART v. JONES et al.
• Court: Missouri Supreme Court

118 S.W. 1

219 Mo. 614

STEWART v. JONES et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

Rehearing Denied April 13, 1909.

1. PARTITION (§ 55)—EQUITABLE PARTITION.

A suit was brought by the purchaser of the life interest of a widow in a homestead under her husband's will, and the interests of certain of the remaindermen therein, which homestead under the will was to be sold by the executor after the widow's death, which had not yet occurred, by a bill alleging that the power of sale was given to the executor in his official capacity, and, as he had been discharged, he could not make the sale, and that plaintiff elected to take in land the interests purchased from the remaindermen so far as they could be lawfully set off to him, and praying that the remainderman whose interests he had not purchased be held to possess the land in trust for plaintiff and others, and that she be required to convey to him the undivided portion which he had purchased, subject to the life estate, and that it be set off to him in severalty, if possible, without prejudice to the rights of defendants, and, if not, that the land be ordered sold and plaintiff be given the proceeds of the life estate and his share of the remainder interest. Held, that the suit was in effect a proceeding for equitable partition, and not a simple suit in equity to execute and determine a trust and put the beneficiaries in possession of their respective interests in the corpus of the trust estate.

2. PARTITION (§ 21)—EQUITABLE—APPLICABILITY OF STATUTES GOVERNING PARTITION.

Under the maxim that equity follows the law, courts will, in proceedings for equitable partition, follow the statute, and hence a proceeding for equitable partition of land devised under a will is governed by Rev. St. 1899, § 4383 (Ann. St. 1906, p. 2415), providing that no partition or sale of lands devised by a will shall be made under the article (partition) contrary to the intention of the testator, expressed in the will, and section 4650 (page 2518), providing that all courts and others concerned in the execution of wills shall have due regard to the directions of the will and the intent of the testator.

3. WILLS (§ 440)—CONSTRUCTION—INTENTION OF TESTATOR.

In construing a will, the intention of the testator is to be ascertained from the four corners of the will, both at common law and under Rev. St. 1899, § 4650 (Ann. St. 1906, p. 2518) providing that all courts and others concerned in the execution of wills shall have due regard to the directions of the will and the intent of the testator.

4. WILLS (§ 614)—CONSTRUCTION—SALE OF HOMESTEAD AFTER LIFE ESTATE.

Where a testator, after devising a homestead to his wife for her life, directed that at her death the executor should sell it, it could not be said that his sole object was to provide a house for his widow, so that, where she parted with her interest therein during her lifetime in consideration of an annuity, the homestead could not be sold before her death for the benefit of the purchaser, but the testator's intent as expressed in the will should be enforced.

5. INJUNCTION (§ 26)—SUITS FOR CONSTRUCTION —ENJOINING FURTHER SUITS.

Where the interpretation of a will is involved in difficulty, counsel are allowed latitude in hypotheses and theories, and persons having interests thereunder may litigate in regard to them on different hypotheses so long as they act in good faith, and the fact that they have brought three suits respecting the will would not justify an injunction restraining further suits.

Appeal from Circuit Court, Boone County; Alex. H. Waller, Judge.

Bill by John A. Stewart against A. H. Jones and others. From the decree, certain defendants appeal. Reversed, and bill ordered dismissed.

E. W. Hinton, for appellants. D. D. Duggins and Webster Gordon, for appellee.

LAMM, J.

From a decree, executing and terminating an alleged trust under a will determining the interests of certain parties in the corpus of the alleged trust estate (consisting of a homestead tract), finding that the land could not be divided and allotted in kind equitably, and decreeing a sale by a special commissioner and a division of the proceeds, certain defendants appeal.

There is little or no dispute on the facts. Questions made here arise on the law applicable to those facts.

Attending to the case made, it is this:

In 1891 Patrick Henry Jones died, testate, a resident of Boone county, seised of a considerable estate in lands and chattels, leaving a widow (a second wife), and one daughter (Cora N.) by a former marriage, surviving him. Cora intermarried with her codefendant Ed R. Tillery, and one child was born of this marriage after Patrick's death, to wit, the defendant Mary, now an infant. The will of Patrick nominated his brother, Aquilla H. Jones, as executor, who qualified and took on himself the burden of administration. He is impleaded as a defendant under the name of A. H. Jones. Patrick left surviving him certain nieces and nephews, the children of two married sisters, Mrs. Carson and Mrs. Murray. As presently seen, the Murray children have a contingent, the Carson children had a vested, interest in Patrick's homestead. The Murrays are made defendants, but we cannot make out that they answered or took any part in the trial, nor do they prosecute an appeal.

Patrick's will was probated in common form in 1891 in the probate court of Boone county. No contest of it was ever made. After providing, in item 1, that he desired to be buried by the side of his first wife and children at Mount Zion Church, in Boone county, item 2 reads: "I devise to my beloved wife, Eliza K. Jones, the homestead upon which I now live consisting of 52 60/100 acres, and being situated immediately west of the corporate limits of the town of Columbia, Missouri, to have and to hold the same during her natural life. This devise is in lieu of and in absolute bar and discharge of her right of dower in all my real estate."

After providing in item 3 that $2,000 be paid Eliza by his executor, and that said sum and certain specific chattels are bequeathed to her in absolute bar and discharge of her dower in his personal property, item 4 reads: "I direct that at the death of my said widow, Eliza K. Jones, my executor shall sell the aforesaid homestead at public vendue, at the court house door in the said town of Columbia, after giving such notice of said sale as the law requires in sales of real estate under deeds of trust with power of sale, and after paying the expenses of sale, the proceeds thereof shall be divided equally per capita between my daughter, Mrs. Cora N. Tillery and the children of my sister, Mrs. Louisa Carson. In the event that my said daughter shall have died prior to the distribution of the proceeds of said sale, then her share therein shall descend to her bodily heirs, if any survive her, and if she shall have died without bodily heirs surviving her, then her aforesaid share shall descend and be equally divided between the children of my sister, Mrs. Elizabeth Murray."

After bequeathing to the trustees of the Methodist Episcopal Church South at Columbia $1,000 in trust for the benefit of superannuated ministers and their widows and orphans within the jurisdiction of the conference to which the Columbia Church belonged at the time, and directing it to be loaned and the income used (under certain safeguards) as indicated, item 6 reads: "I devise and bequeath to my beloved daughter, Mrs. Cora N. Tillery, all the residue of my estate, real, personal and mixed, to have and to hold the same absolutely in fee simple."

The widow elected to take under the will, and in 1899, the executor having made final settlement of his accounts, distribution and his discharge were ordered by the probate court.

Patrick's widow continued to reside on the homestead until, finally, contracting a second marriage with D. R. Vivion, she moved away, and for several years the premises were rented out at an annual rental of $400.

On March 13, 1905, Mrs. Vivion quitclaimed her interest in the homestead to the plaintiff, Stewart, in consideration of $5 and "other considerations"—the "other considerations" being his agreement to pay her an annuity of $360. A few days before her deed, Stewart, who is a real estate dealer, acquired the interests of the Carson children under item 4 of the will. Their deed by apt narrations refers to the will, and recites that grantors sell their interests in the homestead, describing it, to Stewart for $5,000 paid them by him. It not only grants, bargains, and sells their right, title, and interest to the described homestead, but has this clause: "And for said consideration we do further assign, transfer and set over unto the said John A. Stewart all our interest in and to the proceeds of said real estate, in the event of a sale thereof by the executor or under the provisions of said will and do authorize and empower him to have, demand, collect and receive and receipt for all the proceeds of said real estate in the event of such sale, that may be due us or either of us, so that said John A. Stewart shall by these presents be invested with any title that we may have to said real estate and be substituted to all our right, title and interest in the proceeds of the sale of the said real estate in the event the same shall be sold under the terms of said will."

It stands conceded that there are five of the Carson children. Under the per capita clause in the will, these children would share in the proceeds with Cora in the proportion of five to one. Stewart put the Vivion deed on record on May 31, 1905, and the Carson deed shortly before. We infer these several deeds were part and parcel of the same transaction. He owns land adjacent to the homestead, and is exploiting his holdings on the markets as residence property, laid out in lots and blocks, streets and alleys, and is selling to purchasers.

At the death of Patrick, his...