Turner v. Hine

• Decision Date: 23 February 1923
• Docket Number: No. 23256.,23256.
• Citation: 297 Mo. 153,248 S.W. 933
• Parties: TURNER et al. v. HINE et al.
• Court: Missouri Supreme Court

248 S.W. 933

297 Mo. 153

TURNER et al. v. HINE et al.

No. 23256.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Irene Turner and others by their guardian, C. E. Turner, against Lewis T. Hine and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.

Owen & Davis, of Joplin, for appellants.

J. D. Harris, of Carthage, for respondents.

WALKER, J.

This is an action brought under section 1970, R. S. 1919, to determine the interest of the parties in and to quiet thin title to the land in controversy. There was a trial before the court, and a finding and judgment that the plaintiffs had no title, estate, or interest in the land, and that the defendants were entitled to the same. The land, not being susceptible of division in kind, was ordered sold, and the proceeds equally divided among the defendants. From this judgment the plaintiffs have appealed. The land is described as the north half of the northeast quarter of the southeast quarter of section 36, township 29, range 30, Jasper county, and embraces, according to governmental subdivisions, 20 acres. The plaintiffs are the children and heirs of Mary J. Turner, deceased, a daughter of Lewis Hine, who died in September, 1912. Mary J. Turner, plaintiffs' mother, acquired title to the land by a warranty deed from W. S. Grissum and wife. Upon her death her husband, C. E. Turner, conveyed his estate by the curtesy in the land to Lewis Hine. The latter died testate, leaving surviving him his wife, Susan Hine, who died before this suit was brought, and the following children to wit: Lewis T., Thomas S., George A., and Amos A. Hine, his sons, and Cora M. Clay, Ida B. Woods, and Edith A. Spencer, his daughters, and Pearl Snow, Jessie D. Frank, and. Vernie P. Hine, his grandchildren, who were the children of his son Rufus W. Hine, deceased; also his grandchildren the plaintiffs.

The seventh clause of the will of Lewis Hine directed his executor, Carl Spencer, to sell all of his real estate, and, after the payment of his debts, including funeral expenses, costs of administration, and certain bequests, to divide the remainder of his estate equally among certain children and grandchildren named therein. After the death of Susan Hine, the widow of the testator, the executor sold the homestead under the power contained in the will. So far as the record discloses, there remains no other land belonging to the estate of the testator than that in controversy: After the payment of all of the debts and all of the bequests, excepting a few inconsiderable in amount, the executor reported that he had on hand $500, which was sufficient to satisfy all unpaid bequests, debts, and court costs. After the filing of this suit plaintiffs, by quitclaim deed, acquired the title and interest of all of the beneficiaries under the seventh clause of the will of Lewis Hine, which includes all of the defendants except Edith A. Spencer. She and Carl Spencer alone filed answers. Therein they alleged that C. E. Turner, the father of the plaintiffs and the husband of Mary J. Turner, deceased, in May, 1910, became a tenant by the curtesy of the land, and on the said date conveyed the life estate thereby created to Lewis Hine, who died testate, seized of the interest therein of C. E. Turner, who is still living. The defendant Edith A. Spencer claims no greater interest in the land or the proceeds arising from its sale than her share as a legatee, which is a one-eighth, in the life estate conveyed by C. E. Turner to her father, Lewis Hine:

Upon these facts the court rendered judgment for the defendants. The controversy, as presented by the briefs of counsel, is as to the right of the plaintiffs to bring this suit, and the power of the executor to sell the land in question and distribute the proceeds as directed in the will.

The tenor of the seventh clause of Lewis Hine's will is as follows:

"7. I will and direct that my executor, hereinafter named, sell all of my real estate at private sale, or public sale, without any order of court therefor, on such terms of payment as he shall think best, and he make deeds of conveyance to the purchasers thereof, and that after the payment of my debts, funeral expenses and expenses of executing this will and the payment of all of the foregoing bequests, all the remainder of my estate and property shall be equally divided between said Lewis T. Hine, Edith A. Spencer, Thomas S. Hine, George A. Hine, Ida B. Woods, Pearl M. Snow, Jessie D. Frank and Vernie P. Hine."

I. The contention made by the defendants during the trial as to the nonage of certain plaintiffs and the incompetency of their father to act as their next friend in this proceeding by reason of his nonresidence is not for our consideration. The defendants prevailed below. There is no cross-appeal, and we are concerned only with the errors preserved by the plaintiffs who are appellants. Ross v. First Presby. Church, 272 Mo. 96, 197 S. W. 561; Schee v. Boone (Mo. Slip.) 243 S. W. loc. cit. 884, and cases.

II. Under the seventh clause of the will we are confronted with the question as to whether the testator in directing his executor to sell the land in question and distribute the money arising from the sale among the legatees named created a fictional or constructive alteration of the nature of the land by which it is to be considered as personalty and dealt with as such. This legal fiction was invented to protect beneficiaries and sustain and carry out the intentoin of a testator. It is designated in legal terminology as the doctrine of equitable conversion. The principle upon, which it is founded is that a court of equity which regards the substance, and not the mere form, of an instrument will consider things agreed upon or directed to be done as having been done where nothing has intervened which ought to prevent a performance. Craig v. Leslie, 3 Wheat. 563, 4 L. Ed. 460; Griffith v. Witten, 252 Mo. 627, 161 S. W. 708; Nall v. Nall, 243 Mo. 247, 147 S. W. 1006; Barnard v. Keathley, 230 Mo. 209, 130 S. W. 306.

This is an action at law. Although the answer sets up an equitable defense, no affirmative relief of this character is asked. This is an essential to the classification of the case as one in equity. Koehler v. Rowland, 274 Mo. 583, 205 S. W. 217, 9 A. L. R. 107. A question may, therefore, arise as to the application of the doctrine of equitable conversion in this case. In other jurisdictions where, as in Missouri, the distinctions between proceedings at law and in equity, while not obliterated, have been rendered less distinct by statutes and construed with great latitude, the doctrine has been applied in actions at law without the power of the courts to thus proceed being questioned. There is a growing tendency on the part of the courts in the administration of justice to give less heed to the forms of actions and more to their substance. Thus prompted, the application of the doctrine in the determination of this case is not unwarranted.

It is clear from the terms of the will that the testator intended the land to be sold by his executor and the proceeds distributed among the legatees. The power thus conferred authorizes the application of the equitable doctrine above defined, not in its fullness, but only in a fictional or constructive sense, serving more to designate the character of the property than to effect its actual conversion, which only occurs upon...