Whitelaw v. Rodney

• Decision Date: 30 May 1908
• Citation: 111 S.W. 560,212 Mo. 540
• Parties: WHITELAW v. RODNEY.
• Court: Missouri Supreme Court

111 S.W. 560

212 Mo. 540

WHITELAW v. RODNEY.

Supreme Court of Missouri, Division No. 1.

May 30, 1908.

1. PARTITION — PROCEEDINGS—ADMISSIBILITY OF EVIDENCE.

In a partition proceeding, where the right to partition depended upon the proper construction to be placed upon a will, the will and a plat of the land in question were properly admitted in evidence.

2. WILLS—CONSTRUCTION—INTENTION OF TESTATOR.

In construing a will the intention of the testator should never be lost sight of, and, in order to throw light upon it, the court should take into consideration the nature and character of the property devised, and the conditions and circumstances surrounding him and it at the time the will was executed.

3. SAME—ESTATES DEVISED—EASEMENTS.

Testator devised a row of four lots, the two middle ones to his brother and the others to his wife, both in severalty. Part of the four lots abutting on a street was covered by brick buildings. There were no means of access to the rear of the lots by street or alley. Testator also devised to his wife and brother a strip along the rear of the lots 91.31 feet long and 20 feet wide connecting with a street. At one end of the strip, "to be used by them in common with the realty herein devised to them and adjoining same on the north." Held, that testator intended to create cross-easements in favor of each of the devisees over the strip in order that they might have easy access to the rear of their respective lots, and did not intend to give them undivided interests in it in fee simple.

4. EASEMENTS—CREATION—RIGHT OF WAY.

All that is necessary to create an easement of right of way is a clear manifestation of the intention of the person who is the source of title to subject one parcel of land to a restriction in its use for the benefit of another, whether the other belongs at the time to him or a third person, and sufficient language to make the restriction perpetual.

5. SAME—RIGHT OF WAY APPURTENANT.

The right of way, being incident to the land devised and essentially necessary to its enjoyment, was appurtenant to and ran with the land devised.

6. APPEAL AND ERROR—QUESTIONS REVIEWABLE —MATTERS NOT URGED BELOW—TAXING COSTS.

Where the question of taxing costs was not called to the attention of the trial court, it cannot be considered on appeal.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by R. G. Whitelaw against Ella W. Rodney. Judgment of dismissal, and plaintiff appeals. Affirmed.

This is a suit for the partition of certain real estate situate in the city of Cape Girardeau. William F. Rodney was the common source of title. On May 8, 1899, he executed his last will, by which he devised to the defendant, Ella W. Rodney, his wife, and to Louis L. Rodney, his brother, several tracts of land, including the one in question. After the will was duly probated, Louis L. Rodney on November 6, 1903, by deed, sold and conveyed all his right, title, and interest in and to said lands to Rodney G. Whitelaw, the plaintiff, who brought this suit. Ella W. Rodney appeared and filed her answer of general denial, and afterwards an amended answer, in which she alleged that since the institution of suit the mutual rights and interests of plaintiff and defendant as to all the lot of land described, excepting one, had been amicably "adjusted, partitioned, and settled" by proper deeds (which is admitted by plaintiff), and, as to the one lot excepted, she denies all the allegations in the petition, excepting the allegation that plaintiff and defendant claim title thereto by virtue of the will of W. F. Rodney as the common source of title. She further denies that plaintiff is entitled to partition thereof, for the reason that said will devises to defendant and to Louis L. Rodney in severalty four other pieces of land abutting on said real estate on the south, one on the north, and one on the west, and that said will devises the real estate now in question to defendant and to plaintiff's grantor, and expressly provides that same shall be used by them in common in connection with the other realty devised to them, and the defendant avers "that by said devise, the whole of said realty now sought to be divided is impressed with an easement in favor of this defendant and this plaintiff as the grantee of said Louis L. Rodney, and that the common use thereof by both defendant and plaintiff is an absolute necessity for the proper and full use and enjoyment of said other abutting and adjoining real estate, and that the same is not subject to partition." The replication puts in issue the construction placed on the will by the defendant, alleges that the testator did not in his will express the intention that said premises should not be partitioned, either by the consent of the parties or by order of court, and denies that said realty is impressed with an easement in favor of plaintiff and defendant perpetual in its nature and not susceptible of partition, but avers that plaintiff and defendant are each seised of an undivided interest in said premises in fee simple, and are jointly, as such owners in fee, possessed of the whole of said premises, and that, therefore, all lesser titles, estates, and easements are merged in the fee-simple estate.

The plaintiff, to sustain the issues, offered the stipulation as to the adjustment of the claims of the parties as to the real estate named in the petition, except one lot described, and also the admission as to common source of title, defendant taking under the Rodney will, and plaintiff as grantee of Louis L. Rodney, who also took under the Rodney will. Plaintiff offered his deed from Louis L. Rodney, and the will of W. F. Rodney; that portion of the will material to the present issues being as follows: "I give and devise to my beloved wife, Ella Wall Rodney, and my brother, Louis Lorimer Rodney, the following real estate situated in the city of Cape Girardeau, and the state of Missouri, described as follows: (a) Fractional part of lot number five (5), in range E, in said city and state, beginning at the northeast corner of lot number four (4), on Main street, and running...