Strickler v. Means

• Decision Date: 09 July 1930
• Docket Number: 29204
• Citation: 30 S.W.2d 97,325 Mo. 1028
• Parties: Thomas W. Strickler and Ferman B. Strickler v. Ora Means, Plaintiff in Error
• Court: Missouri Supreme Court

30 S.W.2d 97

325 Mo. 1028

Thomas W. Strickler and Ferman B. Strickler v. Ora Means, Plaintiff in Error

No. 29204

Supreme Court of Missouri

July 9, 1930

Writ of Error to Atchison Circuit Court; Hon. L. D Ramsey, Special Judge.

Affirmed.

Ed Kelso and DuBois & Miller for plaintiff in error.

(1) The commissioners in partitioning the land herein did not comply with, nor carry out the directions given them by the court in the interlocutory decree ordering and directing them to partition said land in accordance with the will of said Mary V. McCoy and the terms thereof. Sec. 2012, R. S. 1919. (2) The final judgment confirming the commissioners' report and partitioning the land devised by the will of Mary V McCoy is contrary to the terms of said will and in direct opposition to the positive statutes. Secs. 2005, 555, R. S. 1919; Cannon v. Cannon, 175 Mo.App. 88; Crossan v. Crossan, 262 S.W. 701; Gray v. Clements, 246 S.W. 940; Stewart v. Jones, 219 Mo. 636; Barnard v. Keathly, 230 Mo. 209; Mitchell v. Morrison College, 305 Mo. 466; Dickerson v. Dickerson, 211 Mo. 496; Tisdale v. Prather, 210 Mo. 407; Lily v. Menke, 126 Mo. 211; Sitsemeier v. Galvin, 124 Mo. 368; Stevens v. DeLaVaulx, 166 Mo. 20; Stevens v. Larwill, 110 Mo.App. 151; Denning v. Mispagel, 260 S.W. 72; Hill v. Hill, 261 Mo. 55; Custis v. Snead, 12 Grat. (Va.) 260. (3) The devise of the land of Mary V. McCoy to the parties hereto is on condition that these parties each pay annually to Roger McCoy $ 150 so long as he shall live. These payments are a charge on the land herein sought to be partitioned, are an equitable lien against said land and Roger McCoy not being a party to this suit partition cannot be maintained. (a) Equitable lien: Borland on Wills (Enl. Ed.) 370, 377, 550; 40 Cyc. 2019; In re Temple, 211 Mo.App. 71; Dudgeon v. Dudgeon, 87 Mo. 218; Brooks v. Eskins, 24 Mo.App. 296; Allison Executor v. Chaney, 63 Mo. 279; Dudgeon v. Hackley, 182 S.W. 1004. (b) Roger McCoy a necessary party: Sec. 1998, R. S. 1919; Heyle v. Rule, 121 Mo. 256; Johnson v. Johnson, 170 Mo. 34; Troll v. St. Louis, 257 Mo. 721; Grogan v. Grogan, 177 S.W. 649; Dameron v. Jameson, 71 Mo. 97; Byars v. Howe, 276 Mo. 43; Carson v. Hecke, 222 S.W. 850; Harper v. Hudgings, 211 S.W. 63.

Henry B. Hunt for defendant in error.

(1) "Although parts of property to be partitioned are held by different titles in different interests, or the property consists of separate and distinct parcels or tracts, the whole may be treated as one estate for the purpose of making division and allotment where no injustice results." 47 C. J. 503, sec. 585. (a) Where there is no restriction in a will on the right of the devisee to alienate the land, Sec. 2005, R. S. 1919, does not apply. McQueen v. Lilly, 131 Mo. 18; Thompson v. McClernon, 142 Mo.App. 429. (b) Real estate held by tenants in common may be partitioned. Sec. 1995. R. S. 1919. (c) Under the will of Mary V. McCoy, her three children were to take the realty "share and share alike," and were tenants in common. Sec. 2273, R. S. 1919; Dillinger v. Kelley, 84 Mo. 561. (2) The provision in the will of Mary V. McCoy relative to the payment of money annually to Roger McCoy, was not a charge on the land devised to her three children, and did not constitute an equitable lien on said land. (a) At common law a general devise without words of limitation carried only a life estate and not a fee. By modern statutes such a devise passes a fee simple if testator had a fee and there is no gift over. Sec. 551, R. S. 1919; 40 Cyc. 1575, 1576; Cook v. Couch, 100 Mo. 29; Small v. Field, 102 Mo. 127; Roth v. Rauschenbusch, 173 Mo. 594; Tisdale v. Prather, 210 Mo. 408; Jackson v. Littell, 213 Mo. 600. (b) Where a testamentary gift is absolute, it will not be lessened by mere words of recommendation, unless the will clearly shows that the testator had in mind the creation of the trust, and not a mere appeal to the discretion of the beneficiary. Snyder v. Toler, 179 Mo.App. 385; Lemp v. Lemp, 264 Mo. 548. (c) In equity, real estate may be chargeable with the payment of a legacy, unless there is something in the will to rebut the legal presumption; or from which it can be inferred that the testator intended to exempt the estate from that charge. Brooks v. Eskin, 24 Mo.App. 300; In re Temple, 211 Mo.App. 81. (d) The suing out of a writ of error is the commencement of a new suit, and not a continuance of the suit below to which it relates. 3 C. J. 304, sec. 12; Turner v. Edmonson, 210 Mo. 419; St. Louis v. Butler, 201 Mo. 399; Macklin v. Allenberg, 100 Mo. 343. If Roger McCoy was a necessary party to this action, he should have been made a party to this proceeding in error; as he has not been made a party, this proceeding should be dismissed. 3 C. J. 1014, sec. 970; Watson v. Bank of Dearborn, 193 S.W. 880. The writ of error in this case was sued out on March 19, 1928, Roger McCoy died on June 15, 1929. An annuity given for life, determines upon the death of the annuitant. Wiegand v. Woerner, 155 Mo.App. 259; Lynch v. Houston, 138 Mo.App. 171. (e) A case will not be reversed for error not affecting the substantial rights of the complaining party. Secs. 1276, 1513, R. S. 1919; Shinn v. Railroad, 248 Mo. 173.

OPINION

Atwood, P. J.

This is a partition proceeding wherein Thomas W. Strickler and Dessa Strickler, his wife, were plaintiffs, and Ora Means and Robert Means, her husband, Ferman B. Strickler and Eva W. Strickler, his wife, were defendants. The proceeding was subsequently dismissed as to plaintiff Dessa Strickler and defendants Robert Means and Eva W. Strickler, and partition finally decreed as prayed in the petition. Defendant Ora Means failed to perfect her appeal, and later, in due time, sued out writ of error in this court.

Plaintiffs' petition alleged that Mary V. McCoy, nee Strickler, died testate in Holt County, Missouri, on July 30, 1922, seized in fee of 320 acres of land in Atchison County, Missouri, described as follows, to-wit:

The Southwest Fourth (1/4) of the Southwest Quarter (1/4); and the North one-half (1/2) of the Northeast Quarter (1/4); and the Southeast Fourth (1/4) of the Northeast Quarter (1/4), all in Section No. Twelve (12), Township No. Sixty-three (63), of Range No. Forty (40); and the Northwest Quarter (1/4) of Section No. Thirteen (13), said township and range.

The petition further alleged that said Mary V. McCoy had another daughter, Hallie W. Campbell, who died in the State of Oklahoma in April, 1902, intestate and without issue, seized in fee of 200 acres of land in Atchison County, Missouri, described as follows, to-wit:

The Southeast Fourth (1/4) of the Southeast Quarter (1/4) of Section No. Eleven (11), Township No. Sixty-three (63), of Range No. Forty (40); and the North one-half (1/2) of the Northeast Quarter (1/4); and the South one-half (1/2) of the Southeast Quarter (1/4) of Section No. Fourteen (14), said township and range.

The petition also alleged that upon the death of said Hallie W. Campbell an undivided one-half interest in the real estate last above described passed by inheritance to her surviving husband, James A. Campbell, and the other one-half to the said Mary V. McCoy, Thomas W. Strickler, Ferman B. Strickler and Ora Means, share and share alike; that thereafter the said Thomas W. Strickler, Ferman B. Strickler and Ora Means acquired the undivided one-half interest of the said James A. Campbell in said land, each so receiving an undivided one-third interest in said undivided one-half interest in said 200 acres; that the said Mary V. McCoy died seized of her undivided one-eighth interest in said land; that said Mary V. McCoy, at the time of her death, left as her sole lineal descendants and heirs at law, plaintiff Thomas W. Strickler, and defendants Ora Means and Ferman B. Strickler, tenants in common and each entitled to an undivided one-third interest in all of the above described land; that the estate of the said Mary V. McCoy had been fully settled and all debts owing by said estate fully paid and discharged; and that all of said land could be divided in kind among the parties plaintiff and defendant who were seized of said land as tenants in common. The prayer was that "partition in kind be made of said land between the parties plaintiff and defendant; and that commissioners be appointed to partition said land, according to the respective rights and interests of the parties; and that such further orders may be made as shall be deemed just and equitable in the premises."

Defendant Ora Means, joined by her husband therein, filed answer containing the following admissions:

That said Mary V. McCoy died testate in Holt County, Missouri July 30, 1922; that at the time of her death she was seized of the 320 acres of land first described in said petition; that Hallie W. Campbell died in April, 1902, in the State of Oklahoma, intestate and without issue, seized of the 200 acres of land next described in said petition; that title to said 200 acres descended and was acquired as alleged in said petition, and that the said Mary V. McCoy died seized of an undivided one-eighth interest therein; that under the terms of the will of Mary V. McCoy each of her surviving children, parties plaintiff and defendant herein, to-wit, Thomas W. Strickler, Ferman B. Strickler and Ora Means, were entitled to an undivided one-third interest in all of the real estate described in said petition of which she died seized; that said parties plaintiff and defendant were each entitled to an undivided one-third interest in all other lands described in said petition; that Mary V. McCoy at the time of her death left said parties plaintiff and defendant as her sole surviving lineal descendants and heirs at law; that the estate of the said Mary V. McCoy...