44 S.W.2d 623 | Mo. | 1931
Lead Opinion
This suit involves the ownership of an undivided one-third interest in "a certain leasehold for an unexpired term of years of real estate and improvements at the northwest corner of Jefferson Avenue and Chestnut streets" in the city of St. Louis. The pleadings describe the real estate covered by the lease in the general terms and manner above quoted, followed by a more particular description of the property. The term of the lease is not set out and the lease was not introduced in evidence, nor does the evidence disclose the duration thereof. By the will of George I. Barnett, deceased, probated in the Probate Court of the City of St. Louis, on January 4, 1899, the leasehold, an undivided one-third interest in which is in controversy, was bequeathed to his three children, Sarah L. Drew, Emma L. Drew and Absolom J. Barnett, each taking an undivided one-third interest therein. The plaintiffs are all the children and heirs at law of Sarah L. Drew, deceased, and are conceded to be the owners of the undivided one-third interest in the leasehold which was bequeathed to their mother. Emma L. Drew, sister of Sarah L. Drew and owner of one undivided one-third interest in said leasehold, died testate on May 4, 1911. Her will was admitted to probate in the probate court of the City of St. Louis on the 15th day of May, 1911. The defendants are all the children and heirs at law of the said Emma L. Drew, deceased. Under Item 5 of the will of Emma L. Drew, as originally written, the defendants take and are the owners of this undivided one-third interest in the leasehold. However, basing their claim upon an alteration, amendment and interlineation appearing in Item 5 of the will which if considered and taken as a part of the will probated such undivided one-third interest in the leasehold was bequeathed to their mother Sarah L. Drew, plaintiffs claim to be the owners thereof. Counsel for plaintiffs stated to the trial court: "The dispute is over the one-third interest which was conveyed [by the will of George I. Barnett] to Emma L. Drew. The plaintiffs claim to be the owners of this one-third interest and the defendants claim to be the owners thereof. The matter submitted to the court to determine is whether the plaintiffs or the defendants are the owners of it." Title to the real estate covered by the lease is not involved. The cause was tried in the circuit court in the City of St. Louis. The court found and decreed that under the terms of Item 5 of the will of their mother, Emma L. Drew, the defendants were the owners of the undivided one-third interest in the leasehold. Plaintiffs' appeal was granted to this court. *444
Our jurisdiction of the appeal is not questioned. "Counsel on each side apparently assume that we have jurisdiction of this appeal, but jurisdiction `can neither be waived nor conferred by the consent of parties.' Whether the question isJurisdiction. raised by counsel or not it is our duty to determine from the record in each case whether or not we have jurisdiction." [Lewellen v. Lewellen,
We assume that the appeal was granted to this court on the theory that title to real estate is involved. "Is a leasehold for a term of years real estate? If so, the title to real estate is involved." [Springfield Southwestern Railway Co. v.Title to Schweitzer,
This is not a suit for a money judgment. "The amount in dispute" would be determined by the value in money of the right or interest involved, i.e., the money value of an undivided one-third interest in the leasehold. To bring theAmount in appeal within the jurisdiction of this court on thatDispute. ground, it must affirmatively appear from the record that "the amount in dispute" exceeds the jurisdiction of the Court of Appeals. [McGregory v. Gaskill,
Addendum
The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All of the judges concur. *446