Wright v. Hetherlin

• Decision Date: 01 March 1919
• Citation: 209 S.W. 871,277 Mo. 99
• Parties: OLIVIA P. WRIGHT et al. v. ESTHER HETHERLIN et al., Appellants
• Court: Missouri Supreme Court

209 S.W. 871

277 Mo. 99

OLIVIA P. WRIGHT et al. v. ESTHER HETHERLIN et al., Appellants

Supreme Court of Missouri, First Division

March 1, 1919

Appeal from Pike Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.

Affirmed.

D. A Ball for appellants.

(1) The probate court had no jurisdiction to appoint an administrator de bonis non of the estate of Charles C. Wells, deceased. The appointment was a nullity and wholly void. So were all the acts and doings of said Purse following said void appointment. The administration of the Charles C. Wells estate had been fully and finally settled by James R. Reeds public administrator in charge of said estate, and he as such administrator had made his final settlement of said estate and his settlement had been approved by the probate court and he finally discharged. The only authority given to the probate court to appoint an administrator de bonis non is found in Sec. 46, R. S. 1889. Long v. Joplin Mining Company, 68 Mo. 432; Cary v. West, 139 Mo. 146; Byers v. Weeks, 105 Mo.App. 73; Pullis v Pullis, 137 Mo.App. 294; Bick v. Tanzey, 181 Mo. 515; Norton v. Reed, 253 Mo. 236; Jones v. Schaff Bros., 174 S.W. 177; State ex rel. Harrington v. Pratt, 170 S.W. 418; Grayson v. Weddell, 63 Mo. 523. (2) The revival of the judgment obtained by James G. Reeds, Public Administrator in charge of the Charles C. Wells estate in 1888, was void, first, because the probate court had no jurisdiction to appoint Purse administrator de bonis non of the Charles C. Wells estate. Second, the judgment of revival was void, because the judgment on its face shows that process of court was had upon Lewis Holliday as an individual, and not as executor of the estate of Lemuel M. Wells. No process was served upon Job T. Wells and Emma J. Wells named in the will of Lemuel M. Wells, the remaindermen named in the will. Third, the judgment should have been revived, if at all, in the name of James G. Reeds, Public Administrator in charge of the estate of Charles C. Wells. Bick v. Tanzey, 181 Mo. 515; Whitworth v. Barnes, 256 Mo. 468. (3) The land here in dispute was the homestead of Lemuel M. Wells at the date of his death. He and his wife and children had occupied it as a homestead since 1846. None of the debts allowed against his estate antedated the acquisition of the homestead. His creditors had no right or claim to it. He could, with the consent of his wife, have given it away by deed for no consideration other than love and affection. Therefore, we insist that what he could do by deed, he could do by his will. Seilert v. McAnally, 223 Mo. 505; Barnard v. Bateman, 76 Mo. 415; State ex rel. Stigo Co. v. Mason, 88 Mo. 222; Moor v. Wilkerson, 169 Mo. 334; Rose v. Smith, 167 Mo. 81; Kendall v. Bowen, 96 Mo. 142; Davis v. Lane, 88 Mo. 436; Reed Bros. v. Nicholson, 189 Mo. 396; Balance v. Gordon, 247 Mo. 119; Myers v. Myers, 89 Ky. 442; Pendergest v. Heekin, 94 Ky. 384. The Myers case, 89 Ky. 442, is directly in point and holds, under homestead law substantially like that of Missouri that homesteader can convey by will as he could do by deed. (4) "The probate of a will relates to the death of the testator and confers title from that time." Barnard v. Bateman, 76 Mo. 414. (5) The judgment rendered against Lemuel M. Wells in 1888, if it ever had been a lien on the real estate of said Wells, had expired long prior to the revival of the judgment in 1892. Therefore, the defendants, Job T. Wells and Emma J. Wells, had acquired title to the homestead land, under and by virtue of the will, and their title could not be affected by the revival of the judgment, even though the revival of the judgment be held good. Sec. 2127, R. S. 1909; Pullis v. Pullis, 157 Mo. 515.

W. O. Gray and Hostetter & Haley for respondents.

(1) The law in force at the time of the death of the homesteader, governs and controls the rights of all parties interested in the homestead tract. Ailey v. Burnett, 134 Mo. 317; Register v. Hensley, 70 Mo. 189; Burgess v. Bowles, 99 Mo. 543; Davidson v. Davis, 86 Mo. 440. Lemuel M. Wells, the homesteader, having died in 1892, the law then in force is applicable. (2) Between 1875 and 1895 a homestead, on account of the wording of the Statute of 1875, was subject to sale for the payment of the deceased homesteader's debts, subject of course to the rights of his widow and minor children. Poland v. Vesper, 67 Mo. 727; Keene v. Wyatt, 160 Mo. 1; Balance v. Gordon, 247 Mo. 119; Armor v. Lewis, 252 Mo. 568; Sec. 2693, R. S. 1879. (3) The judgment of a probate court in matters within its jurisdiction is final and is impervious to collateral attack. Covington v. Chamblin, 156 Mo. 587; Rottmann v. Schmucker, 94 Mo. 144; Bingham v. Kollman, 256 Mo. 589; Wilson v. Wilson, 255 Mo. 536; Harter v. Petty, 266 Mo. 303; Bradford v. Wolfe, 103 Mo. 391; Johnson v. Beazley, 65 Mo. 254; Rogers v. Johnson, 125 Mo. 212. (4) Purse's appointment as administrator to take charge of the Charles C. Wells estate cannot be attacked in this collateral proceeding. Bradford v. Wolfe, 103 Mo. 395; Green v. Tittman, 124 Mo. 375; Headlee v. Cloud, 51 Mo. 301; Wetzell v. Waters, 18 Mo. 396; 1 Woerner's Am. Law of Administration, sec. 180; Johnson v. Beazley, 65 Mo. 256; Scott v. Crews, 72 Mo. 261.

RAILEY, C. Brown, C., concurs. Bond, J., concurs in the result.

OPINION

RAILEY, C. --

On February 2, 1915, Olivia P. Wright and others filed in the circuit court of Pike County, Missouri, their petition for the partition of about eighty-five acres of land located in said county. Esther Hetherlin and various other parties were made defendants in the above action. Under the pleadings, and on the trial below, there were three sets of claimants of the land sought to be partitioned. (1) Plaintiffs claim title through Theodore Purse, administrator de bonis non of the estate of Charles C. Wells, deceased, who purchased the land at an executor's sale during the administration of the estate of Lemuel M. Wells, deceased, who died testate in the year 1892, his will being probated May 11, 1892. (2) The Fielden Estes heirs filed their separate answer, and at the trial claimed title to the above land through Fielden Estes, who purchased the same in 1888, when said land was sold under an execution, issued on a judgment obtained by Reeds, public administrator in charge of the estate of Charles C. Wells, deceased, against Lemuel M. Wells. The land when sold under above execution had already been set off and assigned as a homestead to said Lemuel M. Wells. The trial court held that the Fielden Estes heirs acquired no title to said land under the execution sale aforesaid, and no appeal was taken by them. (3) The defendants, Job T. Wells, the Hetherlin children and their father, T. Guy Hetherlin, claim title to the land in controversy, under and by virtue of the will of Lemuel M. Wells. Job T. Wells is a son, and the Hetherlin children are grandchildren of said Lemuel M. Wells.

The evidence tends to show that Lemuel M. Wells acquired title to the land in dispute in 1846; that with his wife and children he lived upon said land, and used it as a homestead to the date of his death, in April, 1892. In 1869, Lemuel M. Wells became largely indebted to his brother, Charles C. Wells, of West Virginia, whose estate was administered upon in that State. The debt of Lemuel M. Wells was a part of the assets of the estate of Charles C. Wells. On November 30, 1886, the probate court of Pike County, by an order entered of record, directed James G. Reeds, public administrator of said county, to take charge of the estate of Charles C. Wells, deceased, which said Reeds did, and proceeded to administer the same under the order of said probate court. On April 17, 1888, Reeds, as such administrator, obtained a judgment against Lemuel M. Wells, for $ 31,395.41. An execution was issued on this judgment and placed in the hands of the sheriff of Pike County, Missouri. The latter, on September 13, 1888, levied upon and sold the land in said county belonging to Lemuel M. Wells, including the homestead in controversy, to Fielden Estes for about $ 5300. The purchase price for said land bought by Fielden Estes, was paid to J. G. Reeds, the public administrator of said county, in charge of the estate of said Charles C. Wells. Said J. G. Reeds, as such administrator, paid the purchase price of said lands to the executor of the Charles C. Wells' estate in West Virginia, on the order of the probate court of Pike County, Missouri. Thereafter, said Reeds, as public administrator in charge of the estate of said Charles C. Wells, made his final settlement with the probate court aforesaid, on December 13, 1890, and was finally discharged by said court.

Lemuel M. Wells died in April, 1892, the owner of said land as a homestead. His widow Kate W. Wells, survived him, but he had no minor children at the time of his death. The widow continued to use the homestead until the date of her death, in August, 1914. Lemuel M. Wells' will was dated April 21, 1892, and was probated in Pike Couny, Missouri, on May 11, 1892. He gave to his wife a life estate in the homestead of 85 acres, and the remainder was to be divided between his son, John T. Wells, or his heirs, and Emma J. Hetherlin, or her heirs. Emma Hetherlin died after her father, leaving a husband and four children surviving her, who are the appellants in this cause.

Under the terms of the will of Charles C. Wells, the interest which testator had growing out of the notes which he held against his brother, Lemuel M. Wells, and which includes the homestead in controversy, was devised and bequeathed as follows: One-third to the children and heirs at law of his brother, Lemuel M. Wells, one-third to the children and heirs at law of his sister, Sadie Rachel Austin, and...