230 Mo. 209 | Mo. | 1910
This is a suit in equity by the residuary legatees of Roland Keathley, deceased, to set aside a certain deed made by James T. Keathley, as the executor of the will of Roland Keathley, deceased, to certain lands described in the petition lying in Ralls county, Missouri, to- his son Henry O. B. Keathley, and a certain deed from the said Henry C. B. Keathley,
The defendant in his answer set up as a defense that the sale was properly made in accordance with the will and for an adequate consideration; that the circuit court had no jurisdiction of the subject-matter, because the will conferred upon the executor the sole power to sell and distribute the proceeds and because the incidental relief afforded by partition would be in contravention of the terms of the will. He also alleged in the answer that the plaintiffs had acquiesced in said sale for a period of six years, and that he had been in the exclusive possession of the land since the reconveyance to him, and had paid the taxes for the years 1892 to 1905 inclusive. He also asks credit for various disbursements made by him in the case of Owens v. Sinklear, 110 Mo. 54, and for moneys paid out by him for surveying the John P. Fisher land, and for costs and moneys paid in defending the ejectment suit of John P. Fisher v. James T. Keathley.
The reply pleaded the ten-year Statute of Limitation to these counterclaims and disbursements.
The facts appear to be that Eoland Keathley died in 1878 owning about 349 acres of land in Balls county, Missouri. In 1869', he made his last will, in which he devised a specified one hundred acres to his son John C. Keathley, and a certain other tract of ten acres to his son James T. Keathley. All the residue of his property, real and personal, over and above said two
In the suit to set aside the will, James T. Keathley and all the other defendants except John C. Keathley pleaded the issue of ademption against John C. Keathley, that is to say, they contended that the devise of
The defendant James T. Keathley, having been restored to his rights as executor under the will, on’ the 10th day of March, 1899', made the sale and a deed Of conveyance of the land described in the petition in this suit to his son Henry C. B. Keathley, and it is this sale and conveyance, and the subsequent reconveyance by Henry C. B. Keathley to James T. Keathley, that is assailed by the plaintiffs in this case, who are the residuary legatees of Roland Keathley. It was admitted on the trial that the heirship and the relationship of the parties was correctly alleged in the peti
The land was duly advertised for sale at executor’s sale and the evidence shows that Henry Keathley procured his brother-in-law, J. O. Caldwell, to bid it in for him. While Henry’s bid through Mr. Caldwell amounted to $750, and James T. Keathley acknowledged in the deed he had received that sum in cash, as a matter of fact, Henry Keathley, according to his own testimony, only paid the sum of five dollars at the time of the execution of the deed, and did not give his note or any other evidence of his indebtedness to his father for the balance of the consideration named in the deed. He continued to live with his father, and in the fall of 18991 sowed twenty acres of this land in wheat. Thereafter, on the 24th of October,
James T. Keathley has never made any settlement in the probate court since his reinstatement as executor in 1892, and has never charged himself with the amount which he acknowledged to- have received from his son for the land at his executor’s sale thereof.
• Other facts may be stated in the course of the-opinion.
I. Defendant contends that Henry O- B. Keathley was a necessary party to this suit, and that the court erred in rendering judgment without having him before the court. That he was not a party is apparent, on the face of the petition, and if he should have been joined the defendant, under the express requirements-of our code, should have taken advantage of this defect of parties by demurrer, but failed to do so. Moreover, he answered to the merits and did not raise this question of non-joinder in his answer. Under these circumstances, it is clear that the defendant waived his-point, but under the evidence in the' ease, it is apparent, we think, that Henry C. B. Keathley was a mere conduit for the passing of the legal title to his father James T. Keathley, and having parted with all his interest in the land by his deed to his father he was not a necessary party. [Merry v. Fremon, 44 Mo. 518; Jackman v. Robinson, 64 Mo. 289; Schneider v. Patton, 175 Mo. l. c. 726; Dameron v. Jameson, 71 Mo. l. c. 100.]
So here the testator’s will having conferred a power of sale upon the executor and the executor having sold and made his deed to Henry C. B. Keathley, and Henry O. B. Keathley having reconveyed the same to the executor, James T. Keathley had the apparent legal title to the land and plaintiffs as devisees and legatees of Roland Keathley could not have maintained ejectment for the land or recovered the rents and profits, but were driven to their equitable action first to set aside, these deeds and to compel an accounting by James T. Keathley for the rents and profits, upon the familiar rule of this State that when a court of equity once acquires jurisdiction of the subject-matter and of the parties, upon any recognized branch of equitable jurisprudence, it will do full and complete justice between the parties. [Paris v. Haley, 61 Mo. 453; Savings Inst. v. Collonious, 63 Mo. 295.]
The decree of partition is also assailed on the ground that it is in contravention of the will of Roland Keathley and contrary to the testator’s intention as expressed therein. Section 4383, Revised Statutes 1899, provides: “No partition or sale of lands, tenements or hereditaments, devised by any last will, shall be made under the provisions of this article, contrary to the intention of the testator expressed in any such will.” This statutory provision has been enforced in numerous cases by this court. As was said by Napton, J., in Ex parte Cubbage, 62 Mo. 368: “Our partition law is very broad, but it at least provides that a partition cannot be made in contravention of a will. Indeed, if the contrary was held, there would be no use in our statutes allowing a testator to make a will.” [Stevens v. De La Vaulx, 166 Mo. 20; Sikemeier v. Galvin, 124 Mo. 367; Lilly v. Menke, 126 Mo. l. c. 211.] But while it is too plain for argument that partition cannot be made in contravention of a will, it does not
The provision of the will of Roland Keathley which the defendant asserts was disregarded and contravened by the decree of partition, was as follows: “Second, I desire my executor heretofore mentioned, as soon after my death as can conveniently be done, to sell at public sale, at my residence, all my effects, real, personal or mixed, first all my household, kitchen and other furniture and personal property and as soon after as convenient all my real estate excepting 110 acres, which will be hereafter described and designated. Said sales to be made and the money arising therefrom collected within or not exceeding one year after my death; the money thereof arising after setting apart a sufficient sum to pay off all costs of administration, to' be distributed to my children as follows:” (here follow specific bequests and legacies to the various children and grandchildren of the testator with the directions -as to taking into account various advancements).
The defendant insists that a proper construction of this item of the will vested the title to this land in the executor with power to sell. Whereas the plaintiffs insist that this direction in the will to sell said real estate amounted to a conversion of the real estate
In Emmons v. Gordon, 140 Mo. 490, in a proceeding to compel the executor to account, among other things, for the proceeds of certain land sold by him in the State of Texas under the power conferred upon him by the will, the question was whether or not the executor and his sureties could be held liable for the moneys received by him for the Texas land, and this court said: “In Wilson v. Wilson, 54 Mo. 213, it is held that the difference between an administrator and an executor lies in the fact that the former derives his power from appointment by the probate court, and! has no power until appointed, while an executor derives his power from the will, and the property vests in him from the time of the testator’s death. The expression made use of in that case to the effect that the real estate belonging to the testator at the time of his death vested in his executor at that time is not to be understood as vesting the title absolutely and unconditionally in the executor, but rather the power of disposition, for under our laws real estate upon the death of the testator passes to his heirs, subject to the power óf disposal conferred upon his executor by the will, and where the will, as in the case in hand, directs that his lands shall be sold by his executor, it is clear that he is given but the naked power to sell, and! that he
In Aubuchon v. Lory, 23 Mo. 99, it is said: “The real estate of a deceased person descends, upon his death, to his heirs, or passes to the devisees nnder his will. By the common law the personal representative, whether executor or administrator, takes no interest in it, and onr statute gives him nothing but the naked power to sell for the payment of debts, or to make short leases, under the direction of the county court.”
In Francisco v. Wingfield, 161 Mo. l. c. 561, it was said by this court: “The direction to sell the real estate for the purpose of administration amounts to a conversion of the land, and the proceeds thereof became personal assets for which Wingfield as administrator de bonis non, and not as trustee, must account in the probate court.” And again, in the same case, it was said: . “It will be .observed that the will in the present case directed an absolute and peremptory sale of the real estate by the executors. This, we think, operated as a conversion of the same into personal property, if not from the death of the testator, at least from the date of sale.”
In our opinion the testator by this will intended to convert the real estate involved in this suit into personal property along with all the other personal estate and to have the whole sold by his executor, but that he did not intend and did not vest the title .to the realty in his executors, but it was a devise for the benefit of his heirs and devisees, and under the allegations of the fraudulent disposition of this property by the executor, whereby he caused the title to be conveyed to himself, in fraud of the devisees, the circuit court had ample jurisdiction, as a court of equity, to set aside the deeds as fraudulent, and to cause the same to be sold and the proceeds divided in accordance with the will of Roland Keathley, and the decree of
Neither do we think that the fact that the defendant has never made a final settlement of the estate of Roland Keathley constitutes a bar to the jurisdiction of the circuit court to entertain this bill for partition. The Legislature of this State, by section 4384, Revised Statutes 1899, has provided that partition of lands may be made before final settlement of the estate, where' “the personal property or other real property not already partitioned, belonging to such estate, is more than sufficient to pay all claims and demands against the same.” And the circuit court having jurisdiction of the partition case is authorized to inquire into and determine that question.
In Chrisman v. Divinia, 141 Mo. 130, this court had this identical question under consideration. In that case, as in this, it was urged that the court had no jurisdiction over the subject-matter of the suit, because of the pendency of the administration proceedings in the probate court, in the course of which the administrator had taken possession of the land and had a tenant in charge for the purpose of securing the rents and profits to the estate under administration, but it was said that section 7143, Revised Statutes 18891 (Sec. 4384, Revised Statutes 1899), “clearly sanctions the partition of land before final settlement of the estate to whose demands.the land may yet be subject. Such a speedy partition, is obtainable only upon the conditions named in the statute, but it cannot justly be said to be forbidden, or beyond the jurisdiction of the court that is otherwise authorized to decree the partition.” This administration was begun in 1878' and has been pending over thirty years.
Aside from the defendant’s claim in his answer, there is no evidence of any indebtedness against the estate. The last settlement of the defendant himself filed prior to the appointment of Barnard as admin
One of these claims is for costs paid on the 28th of August, 1890, in the case of Owens v. Sinklear et ah, being a suit to set aside the will of Eoland Keathley, to the amount of $35-7. That cause was appealed to this court and the judgment was affirmed, in all things sustaining the will of Eoland Keathley.'- In that case some of the devisees of Eoland Keathley sought to set aside his will, and John O. Keathley filed1 his separate answer in which he asked that the whole instrument be sustained as the will of his father, and the judgment was affirmed. Had the will contest been successful it would not have been any profit to the estate of Eoland Keathley, but would have simply deprived John C. Keathley of the one hundred acres of land and increased the shares of the residuary legatees. James T. Keathley, the defendant herein, was among those who assailed this will, so that it cannot be said that this money which he expended for himself and other' legatees in raising the issue of ademption was a proper
The other claim is one for expenditures in the ejectment case brought by John P. Fisher against the defendant James T. Keathley. This suit was brought for the possession of the one hundred acres of land devised to John C. Keathley and conveyed by him to Fisher. The defendant James T. Keathley was in possession of this land in his capacity as an individual. He was under no obligation to take possession of this property in defiance of his father’s will, and if he chose to defend his possession by interposing the will and claiming ademption of the devise, clearly it was a burden which he had voluntarily assumed. This tract was not included in the land which his father authorized him to sell. That case also reached this court and was reported in 142 Mo. 244, and the will was sustained in all of its parts and, the defense of ademption was rejected. We think the circuit court, independently of the question of the Statute of Limitations,
The circuit court allowed the defendant the taxes which he had paid on these lands for the years from 1892 to 1905 inclusive. We think the plaintiffs cannot complain of this action of the court. The taxes were a lawful charge against the land and it was the bounden duty of the executor, if he had: funds, to pay the same, and if he paid the same out of his own money he was entitled in equity and good conscience to have the same refunded to him by the other heirs. But we are not called upon at this time to determine whether the evidence was sufficient to support the court’s finding, but whether it had jurisdiction to determine the matter at all. The jurisdiction exercised by courts of equity' over the dealings of persons standing in fiduciary relations has always been regarded as one of a most salutary description, and one of the most important branches of equity jurisprudence is its power to regulate and enforce trusts, and to examine into the conduct of trustees in relation to trust funds in their charge. The bill in this case seeks primarily to set aside certain deeds to the devised land on the ground of both actual and constructive fraud, and to reinvest the title of said land in the residuary legatees' and to decree that the defendant, James T. Keathley, holds the title in trust for the legatees equitably entitled to the proceeds thereof; and the circuit court, as a court of equity, having acquired jurisdiction both of the subject-matter and of the persons interested in said estate, had full power to adjust all the equities and make partition of the
Having reached the conclusion that the circuit court had1 jurisdiction, we are brought to the main contention in the case, that the purchase of this land by Plenry C. B. Keathley from his father, the executor, and. the reconveyance of the land by Henry to his father, was fraudulent as against the other residuary legatees. By reference to the will, it will be recalled that the testator directed that this land should be sold within twelve months after his 'decease, and the proceeds, along with the proceeds of all of his personal estate, should be divided among his children and grandchildren as specifically directed in his will, taking into accotmt all advancements. Roland Keathley died in 1878. It appears that his children were not satisfied with their father’s will and brought a contest to set the same aside, with the view to defeat a special devise to his son John C. Keathley of one hundred acres of land; that suit resulted in sustaining the will in its entirety, but this court held that the question of ademption of the one hundred acres devised to John C. Keathley had no place in that litigation. John C. Keathley having sold this one hundred acres to Fisher, the defendant, who was in possession thereof, refused to give possession to Fisher, and compelled the latter to sue him in ejectment for the same; that suit resulted also adversely to the defendant, and thus this estate was kept in litigation for nearly twenty years, principally by the action of the defendant himself. Finally in March,
We are met with the insistence that plaintiffs could have proceeded in the probate court to require the defendant as executor to make his settlement and report the purchase money, and have brought suit on his bond if necessary. In other words, the • plaintiffs should have ignored the fraudulent acts of defendant in procuring the title to the land to himself and resorted to the doubtful and elusive expedient of a suit on his bond, to be met, if they failed therein, with the claim that they had condoned the fraud and elected to
They had the clear right to' assail the fraudulent acts of the executor, set the same aside, and look to the fund which the testator had created for their benefit, and call upon a court of equity to require their trustee to account for the trust estate, and thus exercise a jurisdiction as old as courts of chancery themselves. We do not think that it lies in the mouth of the executor to suggest other modes against his misconduct and misappropriation of the estate in his hands. It is sufficient that plaintiffs have proceeded in a court having-full equitable powers to set aside the fraudulent sale and with full power to execute the trust created in the will of Roland Keathley, after the utter failure of the executor to perform his trust, and to adjust once for all this mismanaged estate, which should have been collected and distributed among the legatees thirty years ago.
Complaint is made that the circuit court charged the defendant with rents and profits of the land. In a proceeding in equity for partition an accounting for rents and profits is proper. The defendant James T. Keathley stood in the relation of a tenant in common to the other residuary legatees and had been asserting an exclusive claim to the same since 1899’, and it was entirely proper to charge him with the same. We have examined the proofs as to the value of these rents
"While the circuit court did find that James T. Keathley and Henry C. B. Keathley were insolvent and there was no direct testimony to that effect preserved in the record, it is obvious that the decree does not rest upon that finding and that finding does not constitute reversible error, as the decree stands upon other considerations of law and fact. While in an appeal on the equity side of the court, this court is not precluded by the findings of the circuit court, where the testimony, as in this case, was largely oral, much deference is always shown to the finding of facts by the circuit court for the reason that a trial court has exceptional advantages in observing the witnesses on the stand and their manner of testifying’ and is in a better position to weigh the credibility of witnesses than we possibly can be.
After a careful reading of the testimony, we have been unable to find anything that would require us. to reach a different conclusion from that at which the circuit court arrived and its decree appears to have been based upon the evidence in the cause and is an equitable and just determination of the issues before it, and it is affirmed.