ALICE BYRNE, Appellant, v. JOHN T. BYRNE et al.
SUPREME COURT OF MISSOURI
July 11, 1921
289 Mo. 109
Division One. Appeal from Ste. Genevieve Circuit Court. - Hon. Peter H. Huck, Judge.
III. A reference to the finding of the trial court shows that it found that the deed “was not executed and delivered by said Carrie S. Phelps to defendants Anna Belford and Mary Belford, or either of them.” While there was substantial evidence upon which to base the finding that the deed was not executed, we are nevertheless refraining from passing upon that point, as the larger question presented is that of delivery of the deed. Holding, as we do, that the instrument was testamentary in character, and hence not good as a deed, it is unnecessary to expressly rule upon the matter of execution.
A careful review of the entire record convinces us, however, that the decree of the learned chancellor nisi, cancelling and annulling the deed, was correct. The judgment is accordingly affirmed. All concur.
Division One, July 11, 1921.
1. WILL: Annulment: Rights of Legatees. When a will is finally set aside by the judgment of the Supreme Court, all rights of the legatees under the will cease, and their rights to the property devised by it must be determined as if the testator had died intestate, except as to such prima-facie rights as they acquired by the formal probate of the will in the first instance in the probate court.
3. ——: ——: ——: ——: ——: Will Obtained By Widow‘s Undue Influence. Although the appellate court sustained the verdict of the jury setting aside the will on the ground that it was the result of undue influence exercised by the widow upon the testator, she cannot be deprived of her dower and quarantine in the home place, for when the will was annulled the result was that the testator died without a will and intestate, and his heirs and widow were restored to their rights at law, and among the rights regained by the widow was her right to dower and quarantine.
4. EQUITABLE PARTITION: Improvements Made by Cotenant: Limitations. An allowance to one tenant in common of the value of improvements made by him upon land brought into equitable partition is to be based upon the conditional and reciprocal right of the other cotenants, is not recognized at law at all but only in equity, and is governed wholly by equitable considerations, among them the maxim that he who seeks equity must do equity. The cotenant out of possession, who has received no benefit of the common estate, is entitled to offset or credit the rental value of his interest against the allowance for improvements made and taxes paid by the cotenant in possession, especially where the latter has received the rents and profits to the exclusion of his cotenants; and neither the claim for improvements nor the claim for rent is barred by the Statute of Limitations, nor does the question of limitations enter into the adjustment.
5. ——: ——: ——: ——: Excess of Rents. Rents barred by the statute in an ejectment suit can only be used as a shield and not as a sword in chancery partition; only an equal amount of rental value can be allowed a co-tenant out of possession against an allowance for improvements made by a cotenant in possession, and not the excess of rents over the value of the improvements.
6. ——: Improvements Made Pending Will Contest. In an equitable partition, the devisee named in a will, annulled after being pro-
7. ——: Cotenant Out of Possession: Rents Claimable: Improvements. In equitable partition the cotenant out of possession is entitled to only the rental value of his interest in the land as the land would have been without improvements made thereon in good faith by the cotenant in possession.
8. ——: ——: ——: Interest on Rents Claimable: Demand. Where no wrong is committed in acquiring or retaining money a demand therefor is necessary in order that interest may be charged thereon, and interest can be collected only from the date of the demand. The judgment of the probate court admitting a will to probate is binding upon all the world until set aside by a suit to contest the will; and where such suit was instituted by a cotenant out of possession against a devisee of land named in the will and the will was set aside, but no demand for rents and profits was made in her petition, and she at no time pending that suit applied for a receiver or administrator pendente lite, or otherwise made a demand for her share of the rents, she is not entitled to interest on the rental value of her proportionate share of the land prior to the time she instituted her suit for equitable partition, but only from the date such partition suit was instituted.
9. ——: Personal Property: After Final Settlement. Where the will, duly probated, is set aside in a contest proceeding, the personal property distributed among the legatees in accordance with the direction of the will and the orders of the probate court, should be brought into hotchpot in an equitable partition, and each heir given his proportionate share thereof, as if there had been no will, and the amounts distributed to the favored legatees should be considered as advancements, which means that no interest is to be charged thereon. But where the testator‘s widow has died, the amount of money distributed to her, in accordance with the will, at and prior to the final settlement in the probate court, should not be brought into hotchpot.
10. ——: ——: Effect of Final Settlement. A final settlement made in the probate court in accordance with the directions of a will, duly probated, does not, when the will is annulled in a contest proceeding, bar an inquiry into the rights of the cotenants, in an equitable partition, to the personal property distributed in accordance with such final settlement; for it was made subject to be set aside and annulled in case of a successful contest of the will, and the will being set aside the amount of money, shown by said final settlement to have been distributed to the legatees, must be brought
11. ——: Waste: Homestead. In the equitable partition no allowance should be made against a cotenant who cut and sold cedar timber from the homestead, in which the widow had quarantine and no assignment of dower had been made therein, the evidence showing that she received the money for which the timber was sold and that the cotenant simply acted as her agent in cutting and selling it.
12. ——: Taxes. While cotenants who took possession of estate lands devised to them by their father‘s will, subsequently annulled in a contest proceeding, should, in an equitable partition, be charged with rents during the time they were in possession and up to the time of the partition sale, if they continue in possession up to said sale, they should be credited with any taxes they have paid or may pay prior to such sale.
REVERSED AND REMANDED (in part); AFFIRMED (in part).
John S. Marsalek, P. H. Cullen and Albert Miller for appellant.
(1) The pendency of the suit to contest the will of Patrick Byrne, Sr., was and is sufficient to prevent the running of the Statute of Limitations against the claim of his grandchild, Alice Byrne. Tapley v. McPike, 50 Mo. 592; Johnson v. Brewn, 210 S. W. 55; Jourden v. Meier, 31 Mo. 44;
(1) Tenant in common who makes improvements upon premises and pays taxes is entitled to compensation. 30 Cyc. 233; Armor v. Frey, 253 Mo. 447; Gunn v. Thurston, 130 Mo. 344; Holloway v. Holloway, 97 Mo. 639; Green v. Walker, 99 Mo. 72; Grogan v. Grogan, 177 S. W. 649. (2) The measure of the allowance is the increased value of premises by reason of the improvements. Armor v. Frey, 253 Mo. 477. (3) Rents and profits cannot be increased by reason of improvements placed on premises by the tenant. 30 Cyc. 234; Worthington v. Hiss, 16 Atl. (Md.) 534; Johnson v. Pelot, 24 S. C. 255; Rice v. Freeland, 12 Cush. (Mass.) 170; 22 Cyc. 6; Armor v. Frey, 253 Mo. 479. (4) Action for an accounting for rents and profits received barred in five years. Stark v. Kirchgraber, 134 Mo. App. 218, 180 Mo. 633; Names. v. Names, 67 N. W. (Neb.) 754; Sommers v. Bennett, 69 S. E. (W. Va.) 696; Lilly v. Menke, 126 Mo. 190. (5) Widow may occupy and use the home farm or plantation without being liable to pay rent for same and this right continues until dower is assigned. Gentry v. Gentry, 122 Mo. 202; Phillips v. Presson, 172 Mo. 27; Carey v. West, 176 Mo. 178; Melton v. Fitch, 125 Mo. 290; Givens v. Ott, 222 Mo. 420; Roberts v. Nelson, 86 Mo. 21; Osborn v. Weldon, 146 Mo. 185; Reed v. Lowe, 163 Mo. 519; Thomas v. Black, 113 Mo. 66; Barris v. Emmons, 139 N. E. (Mich.) 872; Sec. 334,
SMALL, C. — Suit in partition in equity. Appeal from the Circuit Court of Ste. Genevieve County, to which the case was taken by change of venue from Jefferson County, where the land was located. The land belonged to Patrick Byrne, Sr., at the time of his death. He died on July 5, 1891, leaving a purported will which was admitted to probate August 8, 1891.
The respondents are the children, and the appellant, Alice Byrne, the granddaughter, the only child of his deceased son Thomas, and the parties constitute the only heirs of said Patrick Byrne, Sr. The deceased also left a widow, Rose Byrne. The appellant, Alice, was but 18 months old when her grandfather died, and on August 8, 1908, within the statutory period after her majority, brought suit to set aside her grandfather‘s will, making the respondents and the widow parties defendant in said will contest. There were three trials and three appeals to this court, the case being twice reversed and remanded (1st Appeal, 250 Mo. 632; 2nd Appeal, 181 S. W. 391); and the third appeal was affirmed on July 5, 1918, twenty-seven years after the death of the testator and ten years after the suit to contest the will was commenced (3rd Appeal, 204 S. W. 730).
On the day of the final affirmance by this court, the respondents, as plaintiffs, commenced a suit against the appellant to partition all of the land in question, except one tract, and on August 19, 1918, the appellant Alice Byrne, as plaintiff, filed a suit against the respondents to partition said one tract. The suits were consolidated and tried as one cause. There is no dispute in the plead-
But appellant, Alice Byrne, in her pleadings takes issue with any claim of said respondents for improvements and taxes, and asks for rents and profits on her share and interest thereon and waste committed and all relief she seeks in this appeal, including an allowance in this proceeding for her share of the personal estate left by her grandfather, which her co-tenants received under the will set aside.
The widow died on the 24th of March, 1914, and her dower was never assigned in any of the land in question.
At the time of the grandfather‘s death, the said lands consisted of the home place, having about two hundred and ten or two hundred and fifteen acres in cultivation, ninety acres of which he devised by his will to respondent, John T. Byrne. The evidence shows that the ninety acres devised to John T. Byrne, and the balance of the home place, which was devised to the widow for life, were occupied by the widow and her children, until her death in March, 1914.
Besides the home place, there was a tract of 160 acres separated therefrom, which by the will of the deceased was devised to Patrick Byrne, respondent.
Also another tract, devised by said will to James Byrne, respondent, on which there was an old mill and mill-site, at the time of the death of said Patrick Byrne, Sr. This tract contained 139 acres of land.
After his mother‘s death, respondent John T. Byrne collected the rents from the home place, amounting in all to $6,735 for the years 1914 to 1918, both inclusive.
As to the 160 acres, or respondent Patrick Byrne‘s farm. He occupied it himself for fifteen years, and rented it to tenants the remainder of the time after his father‘s death. The evidence tended to show that he made improvements and betterments upon the land, increasing its value from $1,800 to $3,000 in the year 1895. We think about $2,250 would be a fair allowance to him for improvements, and that its rental value was doubled by these improvements. From the evidence of both parties, the rental value of the land, without the improvements, from the date of the father‘s death until the trial, would not be unfairly estimated as averaging $100 per annum. The total taxes he paid on the farm during the entire time was $482.
As to the 139 acres with the mill and mill-site, devised to James Byrne. He was in possession from the
The lower court refused to charge either of the parties with the rents except for the five years preceding the institution of the suit, on the ground that they were barred by the Statute of Limitations. There were also certain legacies received by five of the cotenants under the will of said Patrick Byrne, Sr., which the lower court refused to require them to account for in this proceeding. We shall refer to this personal property, and such other details, as may be necessary in the opinion. The said Alice Byrne alone appealed to this court.
I. We think there is no doubt that after the will was finally set aside by the judgment of this court on the 5th day of July, 1918, all rights of the parties under the will ceased, and their rights must be determined as if the testator died intestate, except as to such prima-facie rights as they acquired by the formal probate of the will in the first instance in the pro-
Therefore upon the annulment of the will the widow‘s dower, never having been assigned to her, she was entitled to the possession of the mansion house and the messuages thereto belonging during her life and to all the rents and profits thereof, as if no will had ever existed. And it appearing from the facts as found by the lower court and as found by us, that the ninety acres of the home place, devised to John T. Byrne by the will, belonged to and was connected with the home place or mansion house of the deceased, his widow was entitled to the possession of said ninety acres, as well as the remaining portion of the homestead land. Consequently, neither the appellant, Alice Byrne, the granddaughter, nor any of the other children or heirs of the deceased, had any legal claim to the rents and profits of the home place, including said ninety acres, during the life time of the widow. That was her quarantine. [Gentry v. Gentry, 122 Mo. 202; Phillips v. Presson, 172 Mo. l. c. 27; Melton v. Fitch, 125 Mo. l. c. 290; Givens v. Ott, 222 Mo. l. c. 420; Roberts v. Nelson, 86 Mo. 21; and other authorities cited by respondents.]
The lower court correctly ruled on this point.
II. We have not overlooked the earnest insistence of appellant‘s learned counsel, that in the contest proceeding the jury found the will was the result of the undue influence of the widow and John T. Byrne, and that, therefore, the widow should not have quarantine after the will was set aside, because the existence of the will prevented the plaintiff from having dower assigned to the widow during her lifetime, and to allow her quarantine would be to permit her to profit by her own wrong. We cannot agree to this contention.
This court twice reversed and remanded the contest proceeding, and on the third appeal the verdict setting aside the will was affirmed simply on the ground that
III. But we think the learned court below committed error in not allowing the appellant rents and profits on her share, prior to, as well as during the five-year period next before, the commencement of the partition suit, and holding that her claim thereto was barred by the five-year Statute of Limitations. The right to allow one tenant in common the value of his improvements or betterments is a conditional or reciprocal right. The value of such improvements is not allowable at all at law, but only in equity. It is wholly governed by equitable considerations. The first maxim of equity is, that he who seeks equity must do equity. Accordingly, we find it is well settled that the cotenant out of possession, who has received no benefit of the common estate, is entitled to
IV. It is true, that in none of the Missouri cases above cited, or which we have been able to find, has the court had under consideration or decided, that the rents prior to the five-year period barred by the statute (
V. Nor do we concur in the contention that improvements made pending the proceedings to contest the will should not be considered as made in good faith, and for that reason no allowance should be made on account thereof. All the improvements in this case were made after the ex parte or formal probate of the will in the probate court. This vested title prima-facie in the devisees, who afterwards made the improvements which benefited the property to the amount allowed therefor. The law permitted the institution of suits to contest said will during a period of many years after it was probated. In the meantime, however, the devisees were entitled prima-facie to the possession and use of the property purported to be devised to them by said will. If the property could not be improved in good faith by such devisees, especially when they are also heirs, pending such contests or right to contest a will—which might endure twenty-seven years, as in this case—and be allowed compensation therefor, in case the will was set aside, the property might be of little value to anyone during such period and be greatly depreciated when the contest was finally determined and thus work a great injustice and
VI. But it has been ruled, and it is the law, that the co-tenant out of possession is only entitled to the rental value of his interest in the land, as the land would have been without improvements made by the cotenant in possession. [Armor v. Frey, 253 Mo. l. c. 477-8; 30 Cyc. 234; 7 R. C. L. note 13, sec. 38, p. 843. ]
VII. In view of the foregoing principles, we hold, as to the 139 acres, or James Byrne farm, that he is chargeable only with the rental value of the farm independent of the mill and without the other improvements he made on said farm, which, under the evidence, we find would average $150 per annum, or $4,000 in round numbers, for the 27 years after his father‘s death up to the time of the trial, and at the same rate per annum since that time. That he should be allowed $7,000 for all his improvements and taxes paid by him up to the time of the trial, leaving a balance of $3,000 due him against such tract of 139 acres, on account of such improvements and taxes.
In the same manner, Patrick Byrne should account for $2,700, total rental value, without improvements, of the 160 acres occupied by him for the entire period from his father‘s death to the trial of this partition suit, and that he should be allowed $2,700 for his improvements made and taxes paid during that time. So that one charge offsets the other, and his account, as to said 160 acres, is balanced.
We find correct and affirm the accounting as to John T. Byrne, made and required by the lower court in its decree.
What we have said in this paragraph, refers only to the real estate, and not to the personal property left by the deceased, Patrick Byrne, Sr., which we shall notice presently.
It is well settled that where no wrong is committed in acquiring or detaining the money, a demand is necessary to charge the party with interest and its computation will begin from such demand. [15 R. C. L. sec. 25. p. 29, and many cases cited.]
The judgment of the probate court admitting a will to probate is valid and binding on all the world until set aside by a suit to contest the will under the statute. [Dilworth v. Rice, 48 Mo. 131-2; Banks v. Banks. 65 Mo. 432; Stowe v. Stowe, 140 Mo. 594.]
But the probate of the will is set aside and its efficacy is destroyed upon the filing of the suit to contest the will. [Johnson v. Brewn, 210 S. W. 55; State ex rel. v. Imel, 243 Mo. l. c. 186.] So that prior to the institution of the suit to contest the will, the devisees occupied the property and collected and retained the rents under a prima-facie right to do so, subject to account in case the will was subsequently contested and set aside. This did not render them liable to pay interest thereon during such period. Neither at the time the suit to contest was filed, nor at any time before or afterwards, did plaintiff demand her share of the rents and profits. Nor upon the filing of her suit to contest did she apply for a receiver or administrator pendente lite, as authorized by statute. [
It is true, that in Bates v. Hamilton, 144 Mo. 1, interest on rents collected by one cotentant was allowed to the others, but in that case there was a present right to the rents when collected in each cotenant, and, in effect, a demand therefor and wrongful refusal to pay over, which is the distinguishing feature between that case, and other cases cited by appellant, and this case.
It seems to us, that the demands of equity and good conscience in this case will be satisfied, if we treat the rental value of the property as received by the occupying tenants as advancements to be brought into hotchpot, the same as the legacies collected in the Hines Case, 243 Mo. 480, supra, pending the will contest, and allow no interest thereon, as was ruled in that case.
IX. But we agree with the contention of appellant‘s learned counsel that the personal property of the deceased, Patrick Byrne, Sr., should also be brought into hotchpot in this proceeding. In this regard, the case of Hines v. Hines, 243 Mo. 480, hereinbefore mentioned, is, in our judgment, decisive. In that case, the testatrix died in the State of Arkansas, leaving a will, which was duly probated in that State. She had two farms in Missouri, as well as real estate and personal property in Arkansas. A duly certified copy of her will, and the probate thereof in Arkansas, was filed in the county in Missouri where her Missouri lands were situate. The devisees and legatees in Arkansas, as well as in Missouri, took possession of the respective lands and legacies bequeathed and devised to them by the will. Afterwards the will was set aside,
But it may be said that, in that case, there does not appear to have been a final settlement made and approved by the probate court in the State of Arkansas, and that the final settlement made by the administrator in the case before us, pending the will contest, bars any inquiry into the rights of the cotenants to the personal property which was distributed in such final settlement. But we disallow this contention, for the reason, as we have already seen, the final judgment in the suit to contest the will declaring that the testator died intestate, restored all the heirs to their rights of inheritance under the law. Said final settlement was made and the property divided thereby on the theory that the will controlled, but it was so made subject to be set aside and annulled in case of a successful contest of the will. It could have no greater effect than a conveyance by one of the devisees of the land, before the contest was determined, or the time for instituting it had expired. In all such cases, the purchaser takes subject to having his title divested, in case of a successful contest of the will, either pending or subsequently instituted. In fact, the contest is pending from the date of the probate of the will in the probate court, and the subsequent institution of the contest proceedings in the circuit court is but an appeal from the judgment of probate in the probate court. [McIlwrath v. Hollander, 73 Mo. 105; Boothe v. Cheek, 253 Mo. 132-3; Hines v. Hines, 243 Mo. 500.]
The record shows that as devisees under said will of Patrick Byrne, Sr., the personal property was dis-
The $2,500 or share received by the widow cannot be taken into account in this proceeding, because her estate and the interest of the different heirs or legatees therein, cannot be properly considered in this case, and the lower court was right in refusing to do so. And appellant makes no claim in her brief here on account thereof.
Consequently, in adjusting the claims of the parties against each other in this case they should each be adjudged to receive and be required to account for the personal property aforesaid on the basis that each was entitled to one-eighth thereof, or $637.69, and no more. But no interest should be charged, because in this accounting the legacies so received are considered as advancements and interest is not chargeable thereon. [Hines v. Hines, 243 Mo. l. c. 500.]
X. We disallow the claim for waste against John T. Byrne in cutting and selling the cedar timber off of the homestead land. The evidence shows the mother received the proceeds, that said John T. Byrne acted simply as agent for her in the transaction. He is consequently not accountable therefor.
XI. In addition to charging the respondents, John T. Byrne and Patrick Byrne with rents from the time of the trial below up to the time of the sale of the property in partition, at the rate hereinbefore indicated in this opinion, they should be credited with any and all taxes which they have paid or may pay, since the time of such trial, and up to the time of such sale.
The result is, that we reverse and remand the case, with directions to the circuit court to modify and re-
PER CURIAM: The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All of the judges concur.
SMALL, C.