119 Mo. 63 | Mo. | 1893
The action is ejectment to recover one undivided seventeenth of about three hundred and twenty acres, of land in St. Louis county, to which defendants set up an equitable defense. The case was tried upon an agreed statement of facts, which present the equities under which defendants seek to defeat the action.
The facts agreed to are in substance as follows:
Lewis H. Barnum and Thomas J. Barnum were brothers, the former residing in Pueblo, Colorado, and the latter in St. Louis, Missouri. On January 1, 1871, Lewis H. made his note to his brother Thomas J. for the sum of $2,542. Lewis H. died in Colorado January 13, 1875, leaving his widow, Emma Barnum, and three minor children, the plaintiffs in this suit'. The estate of Lewis H. was administered by his widow under the laws of Colorado, ánd final settlement was made in
Thomas J. knew of the death of his brother and that the estate was in course of administration, but never presented for allowance the note held by him.
On March 10, 1879, the said Thomas J. died in St. Louis, leaving a widow, a number of brothers and sisters, or their descendants, including the plaintiffs, but left no children. The interest Lewis H., the father of plaintiffs, would have inherited, had he been living, was one-seventeenth.
Agnes Barnum, the widow of Thomas- H., administered on his -estate and inventoried the said note made by Lewis H. to her intestate. On May 28, 1880, one Thomas Tumilty took out letters of administration in the city of St. Louis on the estate of the said Lewis H. and said note was on March 26, 1881, allowed by the probate court as a demand against it, after deducting payments, for $2,315.40.
The administrator, after regular proceedings had, on the fourth Monday of August, 1881, sold said seventeenth interest to the said Agnes Barnum for the sum of $1,150, which was paid by her to the administrator. After this, at the suit of Agnes Barnum, the widow of Thomas JEL, who had elected to take one-half the estate of her husband, partition of the land was made, these plaintiffs not being made parties.
Upon this statement of facts, which is set up more in detail in the answer and agreed statement, defendant claims that the legal title passed under the administrator’s sale, but as an alternative they make this prayer to the equitable defense:
“'Therefore, defendants pray that if the court should be of the opinion that the legal title to the aforesaid one-seventeenth (1-17) .did not pass to the said Agnes Barnum by virtue of said administrator’s*67 sale, that the court will order the proper accounting, and order and decide that plaintiffs should not receive the said one-seventeenth of said estate; that is to say, one-seventeenth of the tract of land described in this petition, till the plaintiffs have made good to, or paid to the estate of, Thomas J. Barnum, the full amount of said note and interest thereon, which their father owed to the said estate of Thomas J. Barnum at the time of his death, with interest thereon.”
The judgment was for plaintiffs, and defendant appealed.
I. Under the law of descent of this state, while the plaintiffs, as nephews and nieces of their deceased uncle Thomas H. Barnum, only inherited the share in the estate, their father would have taken had he been living, still they inherit, not from their father, but directly from their uncle. Revised Statutes, 1879, sections 2161 and 2165; Copenhaver v. Copenhaver, 78 Mo. 58.
Neither plaintiffs’ father, who died before his brother Thomas, nor his estate took any interest in the land in controversy and consequently the administrator’s sale passed none. The legal title is vested in the plaintiffs and they should recover, unless some equity intervenes to prevent it.
II. The estate . plaintiffs inherited from their uncle vested in them on his death and was no more subject to, or liable for, the debts of their father than it would have been had they acquired it by purchase or under a devise from a stranger.
We are unable to discover any equity which would make the property subject to the debts of their father. This case does not bear the slightest analogy to one in which the heirs of a deceased person claim land which had been sold by an administrator, but the sale was ineffectual on account of some irregularity or want of
The attempt here was to sell land belonging absolutely to plaintiffs for the payment of the debt of their father, for which neither they, personally, nor the land, was liable, and in which he never had an interest. The want of analogy is apparent, as is also the want of equity in the defense. Judgment affirmed.