Trigg v. Trigg

• Decision Date: 20 February 1917
• Docket Number: No. 18249.,18249.
• Citation: 192 S.W. 1011
• Parties: TRIGG v. TRIGG et al.
• Court: Missouri Supreme Court

192 S.W. 1011

TRIGG v. TRIGG et al.

No. 18249.

Supreme Court of Missouri, Division No. 1.

February 20, 1917.

Rehearing Denied March 12, 1917.

Appeal from Circuit Court, Ray County; Frank P. Divelbiss, Judge.

Petition to quiet title by George A. Trigg against Julia M. Trigg and others. From a decree for plaintiff, defendants Eleanor G. Yonge, née Trigg, and another, appeal. Affirmed.

On December 3, 1913, plaintiff filed in the circuit court of Ray county, Mo., his petition to quiet title, under section 2535, R. S. 1909, to all of lots 1, 3, and 15, in Trigg's addition to the city of Richmond, in the county aforesaid. Julia M. Trigg was personally served, and the other defendants were brought before the court by publication. All of the defendants made default, except Eleanor G. Yonge and her husband, who filed an amended answer, in which it is admitted that the above-named defendants, except the widow, are nonresidents of Missouri. It contains a general denial and alleges: That George W. Trigg died testate in November, 1901, a resident of Richmond, Ray county, Mo., leaving surviving his widow, Julia M. Trigg, and the following children: George A. Trigg, Eleanor G. Yonge (then Eleanor G. Trigg, who afterwards intermarried with her codefendant, Allen Murray Yonge), and Frank W. Trigg, as his only children, descendants, and heirs at law; that at the time of his death he was seised in fee and in possession of five acres of land in said county, hereafter mentioned; that the will of said George W. Trigg, deceased, was duly probated in said county in 1902. The second clause of the will is set out in the answer, with the construction placed thereon by defendants Yonge and her husband, and will be quoted in the opinion. The answer alleges that plaintiff's claim of title is based on a warranty deed of date December 26, 1908, for the expressed consideration of $5,000, made by Julia M. Trigg to him. The deed is in the usual form and purports to convey all of lot 7, in the subdivision of the northeast quarter of section 31, township 52, range 27, on plat made by S. L. Bay, and filed in the recorder's office of said county; said land being further known as that deeded by Alice Mason to George W. Trigg, December 16, 1881, and containing five acres more or less. The deed does not refer to the will. It was filed for record in said county in January, 1909. The answer further alleges that said real estate was not sold to plaintiff for the purpose of raising funds to support and maintain said Julia M. Trigg and her children aforesaid; that it was not made with the knowledge or consent of said Eleanor Yonge; that no part of said consideration was paid to, received by, or expended for the support, maintenance, or benefit of said Eleanor G. Yonge; that plaintiff did not pay to said Julia M. Trigg the sum of $5,000, or any part thereof, as recited in said deed; that by said deed the life estate of said Julia M. Trigg in and to said premises was conveyed to plaintiff, but no other interest was conveyed; that by reason of said deed plaintiff owns the life estate of said Julia M. Trigg in said premises, and the undivided one-third part thereof in remainder in fee, by said will; that said defendants, Frank W. Trigg and Eleanor G. Yonge, each own the undivided one-third part of said real estate in remainder in fee, subject to the life estate aforesaid; wherefore they ask the court to ascertain and determine the title, etc.

The reply admits that testator died in November, 1901, a resident of Ray county, Mo.; that his widow and heirs are properly named in said answer; that he was the owner in fee of said real estate; that said will was duly probated as alleged; that item 2 of said will is correctly set out in the answer. He admits the execution and delivery of said warranty deed to plaintiff dated December 26, 1908, and that it was filed for record January 4, 1909. The reply denies every other allegation in the answer.

Plaintiff testified upon cross-examination: That, in 1902, he paid for the support of his mother and the family $1,366.23. It was spent for the benefit of the family and the upkeep of said real estate. That he paid for said support, etc., in 1903, $1,656.75; in 1904, $1,944.41; in 1905, $2,243.75; in 1906, $3,288.90; in 1907, $3,599.33; and in 1908, $4,962.21. He said he paid the bills of his mother, and for the upkeep of the place; that he paid her money as she needed it; that his father died in 1901; that Mrs. Yonge married in September, 1906; that his sister has not lived on the place since her marriage, as a permanent home; that Frank lived with him about one year after his father's death, and would come and go, but did not return after 1906; that Frank spent about two years with him after the father's death; that he supported Frank while the latter was with him and part of the time since; that he had given Frank as much as $600 or $700 while he was living with him. Plaintiff said he was the head of the family and supported Frank right along with the balance of the family. He testified that, beginning with 1902, he had paid his mother a total sum of $2,410; that he did not pay his mother the $5,000 when the deed was made, but he had paid it; that she owed him that much money and more; that it was advanced to her. On re-examination, plaintiff testified that, when his father's will was executed in 1883, he was eight years of age, Mrs. Yonge was then five, and Frank, three years old; that his father was living on said real estate in 1883, when said will was executed, and continued to live there until he died in 1901; that the house contained about eight rooms, and was two stories high; that the real estate was taken into Richmond 15 to 20 years before the trial below; that his mother's income, after the father's death, was probably $20 to $30 per month; that there was a mortgage on the place for $1,600 or $1,700; that the above was all the real estate his father owned, except two or three acres of cheap land over at Camden; that his mother paid off the mortgage out of a $5,000 life insurance policy; that the policy was payable to her; that he paid about $60 of taxes on the place annually. Plaintiff testified that from the time his father died in 1901, until 1906, Mrs. Yonge lived with him and was married at the home place in September, 1906; that her wedding bills were from $700 to $1,000; and that he paid them out of his own money. Plaintiff says his mother has been living with him since his father's death; that he has been supporting her all that time, and in addition thereto, as a part of the consideration for said deed, he is to support her as long as she lives; that, since the trade was made, the family consisted of his mother and himself; that Frank is now married and lives at Chicago. He said it would take $250 to $300 a year to keep the place in repair; that the house was built in 1867, or 1868. He also testified as follows:

"Q. You may state to the court how your mother happened to make this deed to you, if you know? A. She recognized that she owed me for the support of herself and her daughter and her son, while they were at home, and she had no other way to pay it and had no way to keep up the place, and recognized that she owed it to me and had no income, why she made me this deed."

Mrs. Julia M. Trigg testified that she owed plaintiff more than $5,000 for the support of herself and family after her husband's death, for money, etc., which he paid out for them; that it consisted of cash paid to her at different times; that the bills of the family were paid the same as when her husband was living; that she is still living at the same place and in the same manner; that plaintiff pays all the bills; that she had frequently helped Frank within the last year with money which plaintiff paid her at different times. She further testified as follows:

"Q. What caused you to make this deed to your son George A. Trigg? A. The cause was he took the burden of the family from the time of his father's death, and he filled the place nobly. I considered that I owed this. He had always loved our home, and, in order that I might continue to have a home and have it kept up, I made him the deed. Q. Was there any other consideration? A. The consideration has always been understood between us, that it was to be our home. Q. Did you owe him anything? A. Yes. Q. Was it necessary to sell this property for your support? A. Yes, sir; it would have had become necessary. The place was badly run down, my income was not sufficient for any repairs whatever, and it had come to the point that I had to sell it or give up my home, or do what I did. Q. Your income was not sufficient to support you and keep up the place? A. My income has never been sufficient, very small. Q. How has your son supported you since the deed was made? A. Do you mean in what business? Q. No, in what manner has he taken care of you? A. Why, by paying the bills of the family. Q. I don't mean that. Has he supported you well? A. Well, I think so; according to my estimation, he has done his full duty and more."

Plaintiff testified that the real estate in controversy, exclusive of the improvements placed thereon by himself, was not worth more than $5,000. It was admitted at the trial that the real estate described in petition is a part of the land described in the amended answer of Mrs. Yonge and her husband.

Defendants' Case.

The statement as to what Mrs. Yonge would testify to if present was read at the trial below. It alleges that the property in controversy was not sold to plaintiff by his mother for the support of herself and children; that such transfer was not made with the knowledge or consent of witness Yonge; that she received no part of the consideration or any of the benefit therefrom; that said property was not sold and conveyed for $5,000; that no such consideration was in fact paid for the property, etc.

Counsel for Mrs. Yonge, on account of her...