Weller v. Searcy

• Decision Date: 06 December 1937
• Docket Number: No. 18815.,18815.
• Citation: 111 S.W.2d 206
• Parties: WELLER et al. v. SEARCY et al.
• Court: Missouri Court of Appeals

111 S.W.2d 206

WELLER et al. v. SEARCY et al.

No. 18815.

Kansas City Court of Appeals. Missouri.

December 6, 1937.

Appeal from Circuit Court, Moniteau County; Nike G. Sevier, Judge.

"Not to be published in State Reports."

Action by Jacob Weller and others against Louisa Searcy and others. From the judgment, plaintiffs appeal.

Cause transferred to Supreme Court.

Roy L. Kay, of California, for appellants.

Irwin, Bushman & Buchanan, of Jefferson City, for respondents.

CAMPBELL, Commissioner.

This is an action in partition. The parties, plaintiffs and defendants, are the children and only descendants of Joseph Weller and his wife, Elizabeth Weller.

Plaintiffs' petition alleges that Joseph Weller died testate in the year 1894; that at the time of his death he was the owner of the southeast quarter of section 13, township 45, range 15, in Moniteau county, Mo.; that the will of said decedent was admitted to probate August 20, 1894, and that paragraph 2 of the will reads: "I desire that my wife, Elizabeth Weller, take of my estate all that part of my estate to which she may be entitled under the law in force at the time of my death, as her absolute property. I also will and devise that my said wife take and retain all the remainder of my property to be by her used and applied to the support of all my children as their needs may require, during her natural life and widowhood, but in case my said wife should marry again, I will and desire that all my property be sold and the proceeds of said sale be equally divided between all my children share and share alike, but in case my said wife shall not again marry, I will and desire that at the death of my said wife, all my property that may be left on hand at her death be sold and the proceeds of said sale be equally divided between all my children share and share alike."

The petition further alleges that the widow, Elizabeth Weller, died in 1935, and that she did not at any time elect to take a child's part in the land of her deceased husband; and that each of the parties to the action own an undivided one-seventh interest in the proceeds of the land. Judgment in partition and order of sale were prayed.

The defendant Rudy Weller filed answer alleging that Joseph Weller, at the time of his death in 1894, was the owner of the land described in the petition; that the will of Elizabeth Weller gave her entire estate to Louisa Searcy, Rudy Weller, and Alice Reed. And, "Further answering this defendant states that plaintiffs have no interest in the premises sought to be partitioned herein and therefore can not maintain this action in partition of same. That Joseph Weller died in the year 1894, testate as aforesaid, that the said Elizabeth Weller died testate in the year 1935. That the right to have dower in the above land, expired as to the said Elizabeth in the year 1904, and that said Elizabeth Weller for more than thirty one years after the death of her husband Joseph Weller, remained in the open notorious, adverse and hostile possession of all the land described in plaintiffs' petition claiming the full and complete title thereto against the plaintiffs and all others all of which was well known to the plaintiffs, that the said Elizabeth publicly exercised rights of ownership over said land, improved it, or caused the same to be done, encumbered it with mortgages or deeds of trust, and this defendant says and pleads as a complete bar to plaintiffs' right to maintain this action the ten year statute of limitations, as set forth in section 850, R.S.Mo.1929, Mo.St.Ann. § 850, p. 1121, and the twenty year statute of limitations as set forth in section 858, R.S.Mo.1929, Mo.St.Ann. § 858, p. 1134 and the twenty four year statute of limitations as set forth in Section 852, R.S.Mo.1929, Mo.St.Ann. § 852, p. 1126, and the thirty year statute of limitations as set forth in section 856, R.S.Mo.1929, Mo.St.Ann. §...