214 Mo. 167 | Mo. | 1908
This cause was argued and the decision rendered herein on May 14, 1907. Thereafter, in due time a motion for rehearing was filed and upon consideration a rehearing’ was granted. The cause has been reargued at this term of the court.
The appeal is from a judgment of the circuit court of Audrain county in favor of the defendant in an action of ejectment by the plaintiff for the west half of the northwest quarter of section 28, township 52, range 8 in said county. Ouster was laid as of the — day of --, 1903.
The answer of the defendant was, first, a general denial; and, second, a special defense, wherein defendant pleads that J. H. Crawford was the common source of title of both plaintiff and defendant, and that prior to his death the said Crawford by last will and testament devised and bequeathed all of his property, subject to his debts and certain advancements made by him, to his eight children; that, among these children, was Mrs. Mattie S. Collins, the mother of this plaintiff. The provision for Mrs. Collins in the said will was as follows: “I give and bequeath the shares of my daughter Mattie S. Collins and J. Eobert Crawford, my son, in said estate, in trust, and the same shall be held in trust for them as herein provided. I hereby appoint my son Thomas W. Crawford, trustee of my said daughter Mattie S. Collins and my son J.. Eobert Crawford, and will and direct that all money and property coming to said Mattie S. Collins and J. Eobert Crawford, shall be paid to,'and received and held by said Thomas W. Crawford in trust as trustee for
In reply the plaintiff alleges that he was not a party to the said partition suit, and denies each and every allegation of the said answer, except the heir-ship of their mother and the provision for her in said will.
On the trial it was admitted that Dr. J. H. Crawford was seized of the land described in the petition at the time of his death in 1898, and that the defendant, T. W. Crawford, was in the possession of the eighty acres involved in this suit at the commencement of this action. It is further admitted that the plaintiffs Oscar Collins and Mrs. Blanche Groves were, and are, the only children of Mattie S. Collins, ■ deceased, and that she died on the 7th day of April, 1903. The will of Dr. Crawford established all the averments of the answer in respect thereto. As to the partition proceeding the petition alleged that J. H. Crawford-died testate in Audrain county, Missouri, on the — day of April, 1898.
All of the devisees were made either plaintiffs or defendants to this partition proceeding, save and except the two children of Mrs. Mattie S. Collins, Oscar Collins and Mrs. Groves. In the petition there was no allegation of the trusteeship of the defendant T. W. Crawford, but after alleging that the said J. H. Craw
The oral evidence tended to prove that Mrs. Collins, the mother of plaintiff, was the daughter of Dr. J. H. Crawford, deceased, and had two children; that Mrs. Collins was a widow at the time of her father’s death, and that Oscar Collins was of age at the time, or at least was of age at the time the lands of J. H. Crawford were sold in the partition proceeding. It was also shown that Mrs. Collins was without the means of support of herself and her two children after her father’s death and that the trustee, the defendant herein, applied the $546.63 to the support of his sister, Mrs. Collins, during her lifetime, and that the trustee
Since the lodging of this appeal in this court, the defendant has filed a motion to dismiss the same in so far as Mrs. Groves is concerned, for the reason that she has settled said case as to her interest therein and executed a deed to the defendant to all the land involved in this suit, and has filed the original deed which was executed by Mrs. Groves and her husband to the defendant on the 18th of July, 1904, and recorded in Audrain county on the 22d of July, 1904, so that as the case now stands, the plaintiff Oscar Collins is the only plaintiff in the case. And his interest in the land sued for is one-sixteenth of the eighty acres described in the petition.
I. The contention of the defendant that the instructions of the court and the motion for new trial are not before the court, because they were not carried into the original bill in full, is without merit. The bill of exceptions calls for the copying of the instructions and the motion for a new trial, and this is sufficient compliance with the statute.
II. The motion to dismiss the cause, so far as it relates to the interest of Mrs. Groves, is sustained. [Dulaney v. Buffum, 173 Mo. 1.]
III. The ground upon which plaintiff Oscar Collins seeks to recover one-sixteenth of this land is that, by the will of his grandfather, he is entitled to one-eighth of said land upon the death of his mother and that he is not affected by the partition of said lands by the children and devisees of his grandfather, because he was not made a party to the said partition. By the will of his father the defendant, Thomas W. Crawford, was appointed trustee of plaintiff’s mother, Mrs. Mattie S. Collins, and the will directed that her share should be held in trust for her by the defendant,
V. Plaintiff insists that the evidence of defendant and Winscott and M. E. Crawford was incompetent because it related to transactions between Mrs. Collins, who was dead, and defendant, her trustee, under section 4652, Revised Statutes 1899.
Defendant did not testify to any contract with Mrs. Collins. He simply testified to the disposition he made of the trust funds in his hands. This was a suit by plaintiff for lands which he claimed were devised to him, not by his mother, Mrs. Collins, but by his grandfather, Mr. Crawford. Mrs. Collins was not interested in this action and neither her heirs nor personal representatives were parties to the suit. Plaintiff does not claim under or through Mrs. Collins, but as a purchaser from the grandfather. We do not think the statute has any application to the facts developed. Certainly defendant was competent to testify to the conversations between himself and plaintiff and to the latter’s consent that, the defendant should apply the trust fund to the support of Mrs. Collins and for physicians’ bills in her sickness. Neither was Winscott incompetent. Even though it be conceded that Mr. Fry could not testify as to confidential communications, his evidence was merely cumulative and does not amount to substantial error.
We have reconsidered this cause in all its bearings in the light of the very able discussion by plaintiff’s