Wright v. Hetherlin, No. 19591.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Railey
• Citation: 209 S.W. 871,277 Mo. 99
• Decision Date: 01 March 1919
• Docket Number: No. 19591.
• Parties: WRIGHT et al. v. HETHERLIN et al.

209 S.W. 871 277 Mo. 99 WRIGHT et al.
v.
HETHERLIN et al. No. 19591. Supreme Court of Missouri, Division No. 1. March 1, 1919.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Action by Alivia P. Wright and others against Esther Hetherlin, Adeline Hetherlin, John Hetherlin, Ralph Hetherlin, T. Guy Hetherlin, Job T. Wells and others. From judgment rendered, the named defendants appeal. Affirmed.

On February 2, 1915, Alivia P. Wright and others filed, in the circuit court of Pike county, Mo., their petition for the partition of about 85 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, and his will 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, and his 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, Mo. 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. $5,300. 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, Mo. Thereafter said Reeds, as public administrator in charge of the estate of said Charles C. Wells, made his final settlement,

[209 S.W. 872]

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 county, Mo., 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, Job 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 one-third to the children and heirs at law of his brother, J. D. Wells. The children and heirs at law of these two brothers of Charles C. Wells, viz. Lemuel M. Wells, J. D. Wells, and of the sister, Sadie Rachel Austin, are all parties to this suit, and are all plaintiffs in the case, except Job T. Wells, and Emma Hetherlin's husband and heirs, who are defendants and appellants herein claiming all the title. The remaining defendants are the Fielden Estes devisees. Job T. Wells, and the Hetherlin heirs, appellants herein, being heirs at law of Lemuel M. Wells, have, by virtue of the will of Charles C. Wells, an interest, with the other heirs of Lemuel M. Wells, in the homestead tract in controversy, and this interest is set out in the petition, and was accorded them by the trial court in the interlocutory decree appealed from.

After the death of Lemuel M. Wells, Lewis Holliday, who was named in the will as executor, qualified and administered on his estate, in the probate court of Pike county, Mo. On May 14, 1892, letters of administration were granted, in vacation of the probate court of Pike county, Mo., to Theodore Purse, as administrator de bonis non of the estate of Charles C. Wells, deceased, and his appointment was approved by said probate court June 20, 1892. His bond was approved by the probate court. Soon after the appointment of said Purse as administrator de bonis non aforesaid, he sued out a writ of scire facias to revive the judgment of April 17, 1888, for $31,395.41. The suit to revive said judgment was in the name of "Theodore Purse, Administrator de bonis non of the estate of Charles C. Wells, deceased, against Lewis Holliday, executor of the estate and will of Lemuel M. Wells, deceased." The judgment was revived as above stated, September 1, 1892. A number of claims and demands were allowed against the estate of Lemuel M. Wells, and the widow was given her usual allowances. Among the claims was the judgment of the Charles C. Wells estate, which was classified by the probate court on November 17, 1892, in favor of Theodore Purse, administrator de bonis non of the estate of Charles C. Wells, in the sum of $35,200, and assigned to the fourth class of demands.

The probate court records of Pike county show that on August 15, 1893, Lewis Holliday, executor of Lemuel M. Wells' last will, presented a petition in the usual form, accompanied by accounts and inventories, showing that the personal estate of Lemuel...