Walsh v. Mathews

• Decision Date: 31 October 1847
• Citation: 11 Mo. 131
• Parties: WALSH v. MATHEWS AND WIFE.
• Court: Missouri Supreme Court

11 Mo. 131

WALSH

v.MATHEWS AND WIFE.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

GAMBLE & BATES, for Plaintiff.

LESLIE, for Defendants.

MCBRIDE, J

This was an action of ejectment brought by Mathews & Wife against James B. Walsh in the St. Louis Court of Common Pleas, for real estate in St. Louis county. The case involved the construction of the will of Joseph W. Walsh, deceased, and was submitted to the court upon a special verdict, which found as follows: “The jurors aforesaid upon their oaths aforesaid find that Joseph W. Walsh, deceased, late of the city of St. Louis, departed this life in the month of September in the year 1842, leaving his widow, Elizabeth, who is co-plaintiff in the action, and two daughters, to-wit: Mary F. Walsh and Margaret S. Walsh, who were then and still are under age; the former being now about eight years of age and the latter about six years of age. That said Joseph W. Walsh, previous to his decease, to-wit: on the fifth September, 1842, made his last will and testament, which is in the following words and figures, to-wit: In the name of God, amen; I, Joseph W. Walsh, of the city and county of St. Louis, and State of Missouri, being sick and weak of body, but of sound and disposing mind, memory and understanding, considering the certainty of death and the uncertainty of the time thereof, to the end that I may be prepared to leave this world when it shall please God to call me hence, do make, publish and declare this to be my last will and testament, hereby revoking and making null and void all other last wills and testaments by me heretofore made, and my will is, that after my decease, all my just debts shall be paid by my executors hereinafter named, and as to the residue of my estate and property with which it has pleased God to bless me, and which shall not be required for the payment of my debts, funeral charges and expenses in and about the execution of this my last will and the administration of my estate, I give, devise and bequeath to my wife Elizabeth, all my personal property of every kind, except as herein otherwise bequeathed, devised and disposed of. To have and to hold the same to her and her heirs, executors and administrators, to her and their use and behoof forever. Also the use, rents and profits of my brick house on Poplar street, between Second and Third streets in the city of St. Louis aforesaid, and the use, rents and profits of my farm called “Belair,” in the common fields of Carondelet, in the county of St. Louis aforesaid, being the same farm or tract of land purchased by me from one Lewis Constant, bounded, & c., to have and to hold the said house and farm with the rights, privileges and appurtenances, for and during her natural life or widowhood. I will and direct that my executors hereinafter named, cause the houses, buildings, fences, and other improvements now in progress on my said farm to be fully completed and finished according to the plans, estimates and contracts which I have formed and made for the same, and that they defray the expenses of the said buildings, fences and improvements out of any moneys which may come into their hands as my executors, which may not be necessary to pay my just and equitable debts; and that if such funds be not sufficient to defray the said expenses, my said executors may sell or otherwise dispose of so much and such portions of my real estate as they may deem proper to complete the said improvements. All the real or mixed estate of which I shall be seized and possessed, or to which I shall be entitled at the the time of my decease, except as herein otherwise provided, I give, devise and bequeath, to be equally divided to and between my daughters, Mary and Margaret, and to their heirs in fee simple forever, provided however, that in case both of my said daughters shall die without issue and without having disposed of the said real estate during their life-time, then the said estate shall pass to and vest in my own blood relations, as if I had died unmarried and intestate.” (After giving some directions in reference to the adjustment of a claim, which the testator had in the Sac and Fox reservation, lying between the Des Moines and Mississippi rivers, the will proceeds), “I give and bequeath to my dearly beloved mother, Margaret Walsh, not on account of their intrinsic value but as tokens of my love and gratitude for her and as remembrances of me, my two old colored landscape paintings in my front parlor. I give and bequeath to my brother James, as a taken of love, my gold watch and chain, and I desire that my said brother James be appointed guardian of my daughters, Mary and Margaret, and that no security be required of him as such guardian. Lastly, I do nominate and appoint my brothers, Peter A. Walsh and James B. Walsh, to be the executors of this my last will and testament, and I will and desire that no security be required of them except a nominal one of, say one hundred dollars. Signed,” &c. That after decease of said testator and probate of said will as aforesaid, the said Elizabeth Walsh, his widow, took possession of the brick house on Poplar street in the city of St. Louis, and of the farm, both named and described in said will, and thenceforward received the rents and profits of the same, and used and enjoyed the same by virtue of and under the devise to her thereof made in said will. That on January 28, 1845, after the death of said testator, said Elizabeth intermarried with the plaintiff, William Mathews; that immediately after her said marriage with said William Mathews, the said Elizabeth being informed that by the terms of said devise, her said marriage divested her of all estate, right or title, as tenant for life or otherwise, in and to said house on Poplar street, and said farm called “Belair,” described in said will; was induced to give up and surrender to Peter A. Walsh the possession of said house and farm, and that from the date of said surrender by said Elizabeth, said premises have been in the possession of said Peter A. Walsh, or his tenants, and that the rents and profits thereof have not since the date aforesaid been paid to or received by said Elizabeth or on her account or by her order, and that at the time of the commencement of this suit, the said defendant was in possession of said farm, and that the monthly vaiue of said farm is twenty dollars, and that said testator, Joseph W. Walsh, at the date of his said will, and at the time of his decease, was seized in fee of said house on Poplar street and of said farm described in his said will. But whether or not upon the whole matter aforesaid by the jurors aforesaid in form aforesaid found, the said defendant is guilty of the trespass and ejectment within specified, the jurors aforesaid are altogether ignorant, and thereupon pray the advice of the court aforesaid; and if upon the whole matter aforesaid, it shall seem to the said court, that the said defendant is guilty of the trespass and ejectment aforesaid, then the jurors aforesaid, upon their oaths, aforesaid, say that the said defendant is guilty thereof in manner and form as the said plaintiffs have within thereof complaint against him, and in that case they assess the damages of the said plaintiffs on occasion of the trespass and ejectment aforesaid, besides their costs and charges by them about their suit in that behalf expended, to $160; but if upon the whole matter aforesaid, it shall seem to the court that the said defendant is not guilty of the trespass and ejectment aforesaid, upon their oaths...