Williams v. Lobban
| Decision Date | 13 July 1907 |
| Citation | 104 S.W. 58,206 Mo. 399 |
| Parties | JAMES S. WILLIAMS v. WILLIAM H. LOBBAN, Administrator de bonis non of Estate of SAMUEL LOBBAN, deceased, Plaintiff in Error |
| Court | Missouri Supreme Court |
Error to Randolph Circuit Court. -- Hon. A. H. Waller, Judge.
Affirmed.
Jno. N Hamilton for plaintiff in error.
(1) The direction to sell contained in the will being absolute, and the time for the sale, though in the future, being fixed (viz: the death or re-marriage of the widow), the land was converted into personalty on the day of the testator's death. Compton v. McMahan, 19 Mo.App. 498; Craig v. Leslie, 3 Wheat (U.S.) 577; Peter v Beverly, 10 Pet. (U.S.) 532; Rinehart v. Harrison, 1 Bald. (U.S.) 184; Cropley v. Cooper, 19 Wall 167; High v. Worley, 33 Ala. 196; Baker v. Copenbarger, 15 Ill. 103; Greenwood v. Greenwood, 178 Ill. 387; Brolaski v. Gally, 51 Pa. St. 509; Evans' Appeal, 63 Pa. St. 183; Yerkes v. Yerkes, 200 Pa. St. 419; Wayne v. Fouts, 108 Tenn. 145; Fazewell v. Smith, 1 Rand. (Va.) 313; Com. v. Martin, 5 Munf. (Va.) 121; Harcum v. Hudnall, 14 Gratt. (Va.) 369; Trelawny v. Booth, 2 Atkyns, 307. (2) Though it be conceded that the heirs may elect to consider the land as realty, and that, in such case, it will not be held to have been converted into personalty, yet there can be no reconversion unless such election is the concurrent, unanimous and unequivocal act of all the heirs. Holloway v. Radcliffe, 23 Beav. 171; Biggs v. Peacock, 22 Ch. Div. 284; Fletcher v. Ashburner, 1 Brown Ch. Cas. 500; Baker v. Copenbarger, 15 Ill. 103; Beal v. Stehly, 21 Pa. St. 382; High v. Worley, 33 Ala. 196; Harcum v. Hudnall, 14 Gratt. (Va.) 376; McDonald v. O'Hara, 144 N.Y. 566; Bennett v. Chapin, 77 Mich. 526; 3 Pom. Eq. Jur. (3 Ed.), sec. 1176. Some cases go so far as to hold that, in case of an out-and-out conversion, there can be no reconversion. Comm. v. Martin, 5 Munf. (Va.) 117; Fluke v. Fluke, 16 N.J.Eq. 478; Crittenden v. Fairchild, 41 N.Y. 289. It is at least true that no one or more of such heirs, less than the whole, can make such election. See cases cited above under this head, especially Biggs v. Peacock, 22 Ch. Div. 284; High v. Worley, 33 Ala. 196; Baker v. Copenbarger, 15 Ill. 103; Mellen v. Mellen, 139 N.Y. 120. (3) If each heir, acting separately, can elect, then those first electing have the power to render the will nugatory. Thus, in this case, the fact that one man secured the interests of a part of the children, enables him to get for a small price the remaining shares, and to thus entirely nullify the intention of the testator that the children should all be put upon equal footing. (4) The provision that four of the children should each receive in the distribution $ 200 more than each of the other four makes it essential that there should be a sale and distribution of cash. In that way only could this provision of the will be effectuated. Hence, there could be no election. (5) Even were it to be conceded that it is sufficient that all the legatees elect, and that it is not essential that their election be concurrent, and though it be conceded that each legatee may make his or her election at a time different from the others, still there has been no election in this case, for the reason that some of the legatees have never elected. 1. The burden is on those who claim there has been a reconversion to show acts upon the part of the legatees which will necessarily constitute an election. Wayne v. Fouts, 108 Tenn. 157. 2. Election signifies choice. It is a personal act by the person exercising the choice. The act must be done with the intent to elect. Brawford v. Wolfe, 103 Mo. 398; Wilson v. Fisher, 172 Mo. 20; 15 Cyc., p. 249; 11 Am. and Eng. Ency. Law (2 Ed.), 99; Oil Co. v. Hawkins, 74 F. 398; 3 Words and Phrases, p. 2336. No one can make an election for another; it is a personal right. Castleman v. Castleman, 184 Mo. 444; Welch v. Anderson, 28 Mo. 299. 3. As Napoleon's share was sold out involuntarily, he cannot be said to have made an election. 4. William H. does not mortgage any land. He mortgages only his interest in the estate. And that was personalty. His mortgage does not describe any land. It does not contain the word "land," nor the words "real estate," nor the word "realty." (6) The judgment on publication against N.W. Lobban cannot affect the title of Napoleon W. Lobban. Vincent v. Means, 184 Mo. 344; Skelton v. Sackett, 91 Mo. 377; Spore v. Ozark Land Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181; Burkham v. Manewal, 195 Mo. 500.
Shackleford & Denny and W. M. Williams for defendant in error.
(1) The point made concerning the interest of Napoleon W. Lobban cannot be maintained. 1. The abstract of the record does not set out the order of publication that was made in the case. The proceeding was in a court of general jurisdiction, and the presumption is that it proceeded according to law and in a regular and proper manner. If defendant intended to attack the sufficiency of the publication, he should have introduced it in evidence and set it out in his abstract. McClanahan v. West, 100 Mo. 320. 2. The court acquired jurisdiction by the writ of attachment and its levy upon the property of the defendant in that suit. Hardin v. Lee, 51 Mo. 241; Freeman v. Thompson, 53 Mo. 193. 3. Napoleon W. Lobban, defendant in said attachment suit, had an interest in the real estate that could be seized by attachment and sold under execution. The legal title was in the heirs, subject to the power of sale. Eneberg v. Carter, 98 Mo. 647. (2) The legal title to the land in controversy vested in the children of Samuel Lobban, deceased, subject only to the power of sale in the will. Eneberg v. Carter, 98 Mo. 647; Crittenden v. Fairchild, 41 N.Y. 289. (3) Where the testator directs land to be sold and the proceeds divided, the persons entitled to the money may elect to take the land divested of the power of sale. 2 Woerner, Administration (1 Ed.), p. 728; 2 Underhill on Wills, secs. 703, 719. (4) The mortgages and deeds, read in evidence, conveyed to W. C. Harvey, plaintiff's grantor, all of the right, title and interest of the remaindermen in and to the property of Samuel Lobban, deceased. He acquired whatever interest they had and became entitled to all the rights of his grantors and assignors. Reed v. Underhill, 12 Barb. 113; Horst v. Dague, 34 Ohio St. 371; Mandlebaum v. McDonald, 29 Mich. 86; 2 Underhill on Wills, sec. 723; Eneberg v. Carter, 98 Mo. 647. (5) The remaindermen had such an interest as was subject to sale under the laws of this State. Godman v. Simmons, 113 Mo. 122; Eneberg v. Carter, supra. And the transfer of all the right, title and interest of an heir in an estate passes all interest the heir may have in real estate belonging to the ancestor, and which he may mortgage. Watson v. Priest, 9 Mo.App. 263. (6) The land descended to the heirs, subject only to the power of sale contained in the will. They had the legal title, and in case of a sale under the power, the proceeds would belong to them. They could convey the legal title, or assign their interest in the proceeds, and their assignee or grantee would be substituted to their rights. Reed v. Underhill, 12 Barb. 113; Horst v. Dague, 34 Oh. St. 371; In re Ledrich, 68 Hun 396. (7) Plaintiff's grantor, W. C. Harvey, having, prior to any attempt to execute the power of sale contained in the will, acquired the legal title of all of the remaindermen in and to the land in controversy, and having succeeded to all of their rights in and to said property, would, in the event of a sale, be entitled to the entire proceeds. He was, therefore, entitled to keep the land and was not bound to submit to a sale in order that he might re-purchase it with the proceeds to which he was entitled. He conveyed the property and real estate to the plaintiff. The party who is entitled to the entire proceeds of a sale under a power, may elect to take the property without a sale. 2 Underhill on Wills, sec. 719; Mellen v. Mellen, 34 N.E. 925; Hetzel v. Barber, 69 N.Y. 1; Prentice v. Janssen, 79 N.Y. 478; Garvey v. McDavitt, 72 N.Y. 556. (8) Injunction is the proper remedy to prevent a sale of land under a power, after the parties beneficially interested have elected to keep the land without a sale. Mellen v. Mellen, 34 N.E. 925; 2 Underhill on Wills, sec. 723.
Plaintiff in his petition sought and the circuit court of Randolph county awarded him a perpetual injunction to prevent the sale under a power contained in the will of Samuel Lobban, deceased, to a tract of land, to-wit, the northwest quarter of section 34, township 53, range 16, containing one hundred and sixty acres and lying in Randolph county, by the defendant William H. Lobban as administrator de bonis non with the will annexed.
Samuel Lobban died in 1867 seized in fee simple of the real estate above described and leaving a will whereby he devised all his property to his wife for her life or her widowhood, and at her re-marriage or death, he directed said property to be sold and divided among his eight children except that four of them were to have two hundred dollars more than the others to make them equal with previous advancements. The widow was appointed sole executrix and qualified as such in October, 1867. She made two settlements of the estate, but the records do not show that anything further was done in the estate. She never remarried and lived until 1897. The widow sold and conveyed her interest in the land to Dr. W. C. Harvey, who also acquired at different times the interests of all the other children in said property in the manner hereinafter specified, and subsequently sold all of said real estate to James S. Williams, the plaintiff...
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