Stitt v. Stitt

• Decision Date: 29 June 1907
• Citation: Stitt v. Stitt, 205 Mo. 155, 103 S.W. 547 (Mo. 1907)
• Parties: STITT et al. v. STITT
• Court: Missouri Supreme Court

103 S.W. 547

205 Mo. 155

STITT et al. v. STITT

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

EXECUTORS—SALE OF REAL PROPERTY—PURCHASE BY EXECUTRIX.

Where executrix, to whom an order of sale of a tract of land of the estate to pay debts was granted, under which the land might have been sold for enough to pay the mortgage debt thereon with the debts at large of the estate and costs of administration, and who purposely delayed making a sale until the land was sold under a trust deed, with the intent of becoming the purchaser, did become such purchaser for a sum sufficient to pay only the mortgage debt and costs, which was paid from her own funds, she will be divested of the title so acquired, and the same will be revested in the estate subject to subrogation in her favor to the rights of the cestui que trust under the trust deed.

Appeal from Circuit Court, Daviess County; J. W. Alexander, Judge.

Action by Ami C. Stitt and others against Katie A. Stitt, to divest defendant of her title to certain land and revest the same in the estate of Jacob A. Stitt, of which estate defendant was executrix. From a judgment for plaintiffs, defendant appeals. Affirmed.

Rollin J. Britton, Wm. C. Gillihan, and Nat. G. Cruzen, for appellant. Leopard & Hicklin, for respondents.

LAMM, J.

Plaintiffs are the parents and brothers and sisters of Jacob A. Stitt, deceased. Defendant is his widow and executrix of his last will and testament. From a decree vesting the title to the N. W. ¼ of the N. E. ¼ of section 13, township 61, range 29 (hereafter called "tract C"), in Daviess county (subject to a certain right of subrogation in her favor), out of her and into the estate of said Jacob A. Stitt, defendant appealed.

No question is made over the pleadings, or that the decree is not responsive thereto. In effect and on broad lines, defendant's contention is that the case is without equity. This contention seeks the facts alone. Attending to them, the case made is this: Jacob A. Stitt died childless in Daviess county June 2, 1901, testate, seised of 120 acres of land, to wit, the N. W. ¼ of the N. W. ¼ of section 18, township 61, range 28 (hereinafter called "tract A"), and the N. E. ¼ of the N. E. ¼ (called "tract B") and the N. W. ¼ of the N. E. ¼ (tract C) of section 13, township 61, range 29, leaving the plaintiffs as his heirs of blood kin, and the defendant as his widow. On the 13th day of March, 1900, he formally executed his will, whereby he requested that his debts be paid out of other personal property rather than his household goods. The latter he bequeathed to his wife. If there was not personal property enough to pay his debts, he directed that a certain 60-acre tract he then owned, known as the "Mooney land," should be sold, and that the proceeds of such sale over and above his debts at large and a certain mortgage debt should go to his wife. Tracts A and B he devised to his wife for her lifetime, and at her death they went to his lawful heirs (the plaintiffs). The widow was nominated as executrix by the will, which said will was duly probated, and defendant qualified as executrix, and took upon herself the burden of administering upon the estate early in 1901. Presently, after making his will, testator sold the "Mooney land" and purchased tract C, so that he died seised, as said, of tracts A, B, and C. Tract C was incumbered for $500 at the time testator purchased it, and remained so incumbered at the date of his death, he dying intestate as to that tract. Said incumbrance was a deed of trust to one Bartlett, trustee, in the nature of a mortgage, securing a note to one Knowles for $500 to become due May 1, 1903, interest at 6 per cent., payable annually. Tract B was subject to a deed of trust to secure to the heirs of one of the plaintiffs, Ami C. Stitt, the sum of $825, to become due on his death and to bear no interest. We take it tract A was clear. Decedent resided on tract A with defendant at the date of his death, and the record shows she continued to reside there, and claimed tracts A and B as her homestead; but what the value of these tracts is and whether her homestead right has been adjudicated and a homestead set off to her do not appear. Presently, in May, 1901, the executrix applied to the probate court of Daviess county for an order of sale of tract C to pay debts. At that time there had been allowed against the estate $726 in claims, constitute debts at large and assigned to the first and fifth classes; one of the plaintiffs being a creditor. It seems the widow claimed all the personal property as special dower and as hers absolutely, which claim, being allowed, exhausted the personal assets. The probate proceedings ripened into an order of sale in August, 1901. Tract C was appraised at $1,250. The petition prayed an order of private sale to be made subject to the Knowles incumbrance, and the resulting order made provision of like effect. Armed with this order of sale, the executrix made some efforts to sell tract C for $1,600, to wit, at $40 per acre. We take it, however, that figure included the mortgage debt, at that time $500 plus a small increment of accrued interest. About this time a coldness sprang up between her and her husband's people. The record does not bear out the theory that even a half-hearted attempt was made to sell tract C at any figure obtainable. Some of the persons to whom she offered it were willing to buy at say $35 an acre; but she excused her refusal to take less than $40 an acre by standing stiffly on that price as the worth of the land. It seems tract C was really worth $40 an acre for a clear title, and was rising in value. Not making any sale under the order of the probate court, matters dragged along until in May, 1902. At some time pending the life of the order of sale the executrix conceived the plan of allowing it to lapse, and, instead, to have a sale made under the Knowles deed of trust. That deed of trust provided the principal debt should be due on default of an interest payment. Accordingly, this power was seized hold of, an installment of interest defaulted on May 1, 1902, and promptly on that day she sent the following letter to Bartlett Bros. of St. Joseph, Mo. (one of said Bartletts being the trustee in the Knowles' deed of trust): "Gallatin, Mo., May 1, 1902. Messrs. Bartlett Bros., St. Joseph, Mo.—Dear Sirs: My husband, now deceased, purchased certain land from his brother, Samuel G. Stitt, on which you hold mortgage for $500.00. There is no money in the estate with which to pay the interest now due on this loan (May 1st), and inasmuch as the land covered by this loan must be sold to pay the debts of the estate and such a sale, if made by order of the probate court, would preclude me from becoming a purchaser, because of the fact that I am administratrix of the estate, and I am confident that if I am precluded from taking part in the sale that the land will be sold for less than its value, I request that you proceed to foreclose your mortgage for your client at once. Please conduct the matter through Rollin J. Britton, who is my attorney, and he will see that your interests are taken care of at the sale. If I become the purchaser of the land, I shall want to renew the loan. Yours truly, Katie A. Stitt." Prior to the above letter her agent sent the following communication to Bartlett Bros: "Gallatin, Mo., April 19, 1902. Bartlett Bros., St. Joseph, Mo.—Dear Sirs: Your letter concerning the `Stitt to M. A. Knowles' trust deed received, and I am very desirous of having this matter attended to earlier than your reply would indicate. The record says that Herschel Bartlett is trustee in this matter. It is a matter of much importance to the estate that we should be able to get a proper consideration for this land. It is a hard struggle to save something out of the estate for the widow. It is a matter in which I have much concern, and I trust that you will kindly assist me and the estate in the matter. I am confident that the loan will be immediately returned to you. Yours truly," etc. As the result of these letters, a trustee's sale was put on foot, and then made on June 6, 1902, at which the defendant...