Stokes v. McAllister

• Decision Date: 30 September 1829
• Citation: 2 Mo. 163
• Parties: STOKES v. MCALLISTER.
• Court: Missouri Supreme Court

2 Mo. 163

STOKES

v.MCALLISTER.

Supreme Court of Missouri.

September Term, 1829.

ERROR FROM ST LOUIS CIRCUIT COURT

WASH, J.

The plaintiff in error brought an action of ejectment against the defendant, in the St. Louis Circuit Court. The cause was tried at the March term, 1819, on the issue of not guilty. The facts appear by a case agreed in substance as follows:--William Stokes and the plaintiff intermarried in England, where they lived and cohabited together for some time, and then separated, having executed articles of separation by which he, the said William, stipulated to pay an annuity of £100 yearly, to William Sparrow and another, as trustees for said plaintiff; that said William removed to the State of Missouri, and there lived separate from said plaintiff, until the time of his death, which happened in September 1823, without lawful issue, and leaving the plaintiff his lawful widow. He, said Stokes, having previously made and published his last will and testament, and thereby devised all his estate, real and personal, to John O'Fallon, in trust for his (Stokes) illegitimate daughter, and appointed said O'Fallon his executor, who qualified as such: that said Stokes, at the time of his death, was seized in fee of the premises in the declaration mentioned, the same being the mansion house and plantation in which he resided at the time of his death. That he also died seized of other real estate in Missouri; that immediately after the death of said William, the plaintiff with the assent of said executor, entered upon and took possession of said mansion house and plantation, and leased the same to one Edward Wheeler, who entered upon, occupied and possessed the said mansion house and plantation until he was ousted by the defendant. That the plaintiff soon after the death of her said husband, commenced a suit for the assignment of dower, which at the time this cause was tried was still pending. That said William Stokes not having paid the annuity stipulated for in said articles of separation, suit was brought by Sparrow, the surviving trustee, against O'Fallon as executor, and judgment recovered for $2,462 and five cents, to be levied of the lands and tenements, goods and chattels which were of said Stokes; that one Nathan Davidson also recovered a judgment in the same court against said executor for $7,370 debt, and $1,216 03 damages, to be levied as above stated. That executions issued in conformity with the judgments, and were levied on the mansion house and plantation aforesaid, and that the same were in due form of law advertised and sold on the 8th of September, 1825; that John O'Fallon became the purchaser and afterwards conveyed the same to the defendant, who on the 12th of February, 1826, entered upon the said premises and ejected said Wheeler therefrom. Upon these facts the Circuit Court gave judgment for the defendant, to reverse which, this writ of error is prosecuted. The only question presented for consideration, is, whether the sale and conveyance aforesaid to O'Fallon, divested the right of the widow to hold, occupy and enjoy in person, or by her tenant, the mansion house and plantation of her deceased husband.

By the 73d section of “An Act directing the probate of wills and the descent of intestate's real estates, and the distribution of their personal estates, and for other purposes therein mentioned,” passed Jan. 21st, 1...