256 Mo. 58 | Mo. | 1914
— Preliminary. Plaintiffs Ada Hauser, David L. and Virginia C. Smith brought suit against defendants Mary L. Murray and her husband Guy E. Murray, in the circuit court of Ray county, under section 650, Eevised Statutes 1899, now section 2535, Revised Statutes 1909, to ascertain and determine the estate, title and interest of the parties named, to the following, described land in said county, viz.: the southeast quarter and the east half of the southwest
The Pleadings. The petition is in the usual form and alleges that the defendants are in the possession of the real estate in question and claim to be the owners of same adversely to the plaintiffs. Wherefore, plaintiffs, under the provisions of said section 650, pray the court to ascertain and determine the title, estate and interest of plaintiffs and defendants respectively in and to said real estate and to adjudge and define the estate, title and interest of said parties hereto, severally in and to said premises.
The answer admits possession and denies generally all other allegations; pleads the ten-year Statute of Limitations, and more than forty years’ adverse possession of the premises, with payment of taxes and the making of valuable and permanent improvements thereon next before the commencement of this suit; that Mary L. Murray, defendant, and those under whom she claims, have had possession of said lands ever since title to same emanated from the Government more than seventy-five years next before the commencement of this suit; that the pretended conveyance of one Wm. H. Gunnell of a certain interest in said lands to one John H. Smith, through whom plaintiffs claim title, was paid for with assets and property held by bim in trust for Elizabeth B. Smith through whom defendants claim title and that whatever interest said transfer purported to convey to said John H. Smith was held by him in trust for said Elizabeth B. Smith and her bodily heirs, and that said Elizabeth B. Smith died intestate in 1907 leaving the defendant Mary L. Murray her only child and bodily heir her surviving,,
The reply is a general denial.
Defendants demanded a jury which was refused.
Upon a trial before the court there was a finding as to the title and interest of the parties, not necessary to be set out here, but which will be discussed at length in the opinion. From this finding there were cross appeals.
The plaintiffs claim title through their father John Henry Smith, on account of- interests alleged to have been acquired by him in the purchase of undivided portions of the land in question, and Ada Hauser claims in addition under a certain deed made March 5, 1870, by John Henry Smith and his wife Elizabeth B. to David
The defendant Mary L. Murray claims title to the land in question by inheritance, and as the sole surviving bodily heir of her mother Elizabeth B. Smith, under the terms' of the will of Nathaniel H. Gunnell, Jr.
The Facts. The origin and devolution of the title eo the land in question is disclosed in the following statement:
Wm. M. Gunnell, who is the common source of title, died a bachelor and intestate in Ray county, in December, 1857, seized in fee of four hundred acres of land described as follows: The east half of the southwest quarter and the southeast quarter of section seventeen; the west half of the northeast quarter of section twenty, all in township fifty-two, range twenty-seven, the land in controversy being, as is disclosed by the Government subdivisions, a part of this tract.
Wm. M. Gunnell left surviving him his father, Nathaniel H., Sr., five brothers, viz.: John C., James N., Thomas P., Nathaniel H., Jr., and Robert E., and two sisters, Sarah J. and Elizabeth B.
In 1857, a short time after William M. Gunnell’s death, Nathaniel H., Sr., conveyed his interest in William M.’s estate to Sarah-J. and Elizabeth B. In 1858, Thomas P. Gunnell conveyed his interest in said estate to Sarah J., Elizabeth B. and Nathaniel H., Jr.; Sarah J. died in 1858, a maid and testate, after devising her interest in said estate to Nathaniel H., Jr. In 1859,
In January, 1858, Elizabeth B. married John Henry Smith. Of this marriage there were born two children, Harvey and Mary L., the latter being one of the defendants and now intermarried with the other defendant, Guy R. Murray. Harvey died a bachelor and intestate in 1894. John Henry Smith had formerly been married twice, the plaintiffs being his children by such marriages.
John Henry Smith at the time of his marriage to Elizabeth B. Gunnell, lived on a farm owned by him, several miles distant from the Gunnell land or farm, as it will at times be designated. The small portion of the latter improved and under cultivation, was, after the death of Nathaniel H., Jr., in 1859, taken charge of by John Henry Smith, and one of his sons by a former marriage put in possession of same. This son and others occupied and cultivated the land until 1868, when John H., who had become hopelessly insolvent, his farm and stock being sold to satisfy his debts, removed to the Gunnell farm. He lived there with his wife and smaller children until 1873, or for a period of about five years, when he went to live with one of his sons by a former marriage, with whom he remained until his death in January, 1874. There was no estrangement, and his daughter, Mrs. Murray, states that his age and incapacity determined his course, as he could do nothing to help her mother, Elizabeth B. During the five years referred to, he was utterly impecunious, and from reasonable deductions made from
Nathaniel H. Gunnell, Jr., the last of the name who occupied and cultivated the Gunnell land, left at his death on the premises some four or five horses and colts, and a good many cattle, including five or six milch cows. John Henry Smith took charge of this property, removing a portion of it a few months after Nathaniel’s death, to his, Smith’s, farm, and allowing a portion to remain on the Gunnell farm. In 1862, Smith became the administrator de bonis non of Nathaniel’s estate. There had been under the executor of this estate a sale of a part of Nathaniel’s stock; Smith becoming a purchaser in the amount of about. $573, or to the extent of about two-thirds of the reported sale. When the executor resigned and Smith
Relative to the interest of John C. Gunnell purchased by John Henry Smith at sheriff’s sale, the following preliminary facts are pertinent: John C. Gunnell several years before his brother William M.’s death, went to California in early manhood, sometime between 1850 and 1855. Nothing was heard from him or of him for many years and he was believed to be dead, until sometime in the 80’s, not later, one witness says, than 1888 or 1889, when he returned, and thereafter lived with his sister Elizabeth B., on the Gnnnell farm, until 1900, when he died a bachelor and intestate. In December, 1865, more than ten years after John C. Gunnell had gone to California, John Henry Smith brought suit, by publication, in the circuit court of Ray county, alleging that said John C. Gnnnell was indebted to him in the sum of $480. The record entries in regard to this matter are material in determining the interest acquired by John Henry Smith under this proceeding, and we insert them in their order:
*76 Order of Publication.
John H. Smith v. John Gunnell.
Now at this day comes the plaintiff by his attorney and files his petition in the above entitled cause, and it being averred in said petition that the defendant is not a resident of the State of Missouri, it is therefore ordered by the clerk of the circuit court of the county of Ray in the State of Missouri, that he be notified of the commencement of this suit by publication in “Missouri Freeman” a weekly newspaper printed and published in the county of Ray and State of Missouri of the folowing to-wit: To John Gunnell, the aforesaid defendant, you are hereby notified that the said plaintiff has commenced his action against you, the object and general nature of his petition being to recover against you, the sum of four hundred and eighty dollars. The said plaintiff avers in his said petition that on or about the 16th day of August, 1865, the said defendant transferred to him, the said plaintiff, in writing, all his interest and claims on defendant among which there was a claim of four hundred and eighty dollars, which was for money loaned by said William H. Gunnell to said defendant, plaintiff further alleges in said petition that, by virtue of said assignment and transfer, he became entitled to the aforesaid sum of four hundred and eighty dollars. These' are therefore to notify you that you are required to be and appear in said court, at the courthouse in the city of Richmond, in said county of Ray, State of Missouri, on the 1st day of the next term of said court, it being the 5th day of March, A. D. 1866, and answer the said petition or the same will be taken as confessed and your property sold to satisfy the same.
Judgment by Default.
March Term, 1866.
Now at this day comes the plaintiff aforesaid, by his attorney and the defendant comes not, nor does he demur to or answer the plaintiff's petition, whereby the said action against him herein remains undefended, and plaintiff shows to the court here proof of publication notifying the defendant of the commencement of this suit against him, which is approved and ordered filed, hereupon, on motion of the plaintiff an interlocutory judgment by default is ordered entered against said defendant in the premises, and it is considered by the court that the allegations contained in said petition be taken as confessed, and unless defendant shall appear in this court at the next term thereof, and show just cause for setting aside said judgment, the same will then be made final, and this cause i^ continued.”
*77 Continuance.
September (October) Term, 1866.
Now at this day comes the plaintiff aforesaid, by his attorney, and on his application this cause is by order of the court continued at his cost. It is therefore considered by the court that the defendant recover against said plaintiff his costs about this continuance expended, and it is ordered that execution issue therefor.
Judgment.
September Term, 1867.
Now at this day comes the plaintiff aforesaid by his attorney, and the defendant comes not, but makes default. It is therefore considered by the court that the allegations in said petition be taken as confessed, whereupon the court proceeds to inquire into the damages sustained by the plaintiff, and finds the same to be five hundred and fifty dollars and twenty cents, and it is considered by the court that the plaintiff recover against said defendant said sum so found to be due plaintiff as aforesaid, together with all his costs in this behalf expended, and that the same be levied of, and limited to the property attached, to-wit: All defendant’s interest, both divided and
undivided, in the following real estate situate in the county of Ray and State of Missouri, to-wit: The SE14 and the E% of the SWVé, and the Wy2 of the NE% and the E% of the NW>4 all in section 17, township 52, and range 27, and that execution issue accordingly.
There was no statement in the order of publication, proof of same, or in the interlocutory judgment that any property had been attached, no notice of the abstract of attachment was filed in the case, and no return or other writing signed by the sheriff was filed stating that he had levied the writ on any property. The judgment properly described the land in section seventeen, but improperly included two hundred additional acres in said section, and did not describe the land in section twenty. Under this judgment the land described was sold by the sheriff in March, 1868, and purchased by John Henry Smith, to whom a deed was made in due form by the sheriff.
James N. Gunnell, whose interest it is claimed was purchased by John Henry Smith, also left Ray county in early manhood, going to Kentucky where he married, and subsequently removed to Scotland county,
“Q. In talking about the farm whom did he (John H. Smith) say it belonged to! A. He said it belonged to his wife.
“Q. Can you give the substance of any conversation he had with you? A. Here in front of the courthouse on one occasion Jim Johnson and I was talking and Mr. Smith came up; I asked him if he was going home; he said he was going pretty soon; he got to talking about some trade he had with somebody about some stock, and got to speaking of the farm, and he just remarked to me, he says, ‘Joe, the war has ruined me and made me a bankrupt and I am now living on my wife’s estate.’
“Q. What else did he say about trading some of Nathaniel Gunnell’s stock? A. He told me after Nathaniel’s death he took that stock and traded it for land.*79 That is bow that come up, said be owned nothing now, said be was a bankrupt.
“Q. Wbat did be say be traded it for? A. He turned it over to tbe children.
“Q. Why? A. Said be was a bankrupt and could not bold anything himself.
“By tbe Court: Q. I understand you to say be took Nat’s stock and traded it for some land? A. Yes, and turned tbe land over to tbe children.
“Q. Wbat children? A. He didn’t say, be said tbe children.”
Tbe witness Duvall’s statement as to bis conversation with John H. Smith in regard to tbe consideration paid to Wm. IT. Gunnell for bis interest in tbe Gunnell lands, finds confirmation in tbe deposition of Joseph Childress, who in detailing a conversation bad with said Wm. H. Gunnell, says: “He” [William IT.] “went over there and brought back tbe stock with him and told me that it was a payment on this land,” and the deposition of Sarah A. Gunnell, tbe widow of Wm. H., in regard to tbe same matter, in which she says: “I remember of him bringing two horses.”
On March 5, 1870, John Henry Smith and bis wife Elizabeth B. made and executed to David H. Quesenberry, as trustee, tbe following deed:
Know all men of these presents that we, John H. -Smith and Elizabeth B. Smith, his wife, of the county of Ray in the State of Missouri for and in consideration of the natural love and affection as well as in consideration of the sum of one dollar to us in hand paid hy David H. Quesenberry, trustee for the sole and separate use and benefit of said Elizabeth B, Smith during the period of her natural life, and at her death the same to pass to and vest in fee simple in her two children, Mary L. Smith and Harvey Smith, and the daughter of said Henry Smith hy a former wife, Ada Smith, equally, do hy these presents, grant, bargain and sell unto the said David H, Quesenberry, trustee as aforesaid, the following real estate situate in the county of Ray in the State of Missouri, to-wit: The west half of the southeast quarter of section seventeen {17), the east half of the southwest' quarter of said section*80 seventeen (17) and the east half of the southeast quarter of said section seventeen (17), the west half of the northeast quarter of section twenty (20), and the east half of the northwest quarter of said section twenty (20), all in township fifty-two (52) of range twenty-seven (27), with the appurtenances.
To have and to hold the premises aforesaid unto him, the said trustee for the uses and purposes aforesaid, his successors and assigns forever. It is hereby Understood and agreed by and between the parties hereto that said trustee shall have full power and authority to sell or in any other way dispose of said real estate during the lifetime of the said Elizabeth B. Smith, by the approbation and request of her, the said Elizabeth B. Smith, which approbation and request shall be shown by her joining in the deed of conveyance or other instrument by which said real estate may be conveyed or affected, and the proceeds of such sale or other disposition of said real estate shall be appropriated by said trustee for the benefit of the persons aforesaid, as may be directed, by said Elizabeth B. Smith. It is the intention and understanding of the parties hereto that if said real estate is sold and conveyed according to the power herein given in the lifetime of the said Elizabeth B. Smith, that the estate therein of the said children is thereby forever defeated, and the purchaser takes a fee simple title to said real estate.
I, the said John H. Smith hereby covenanting to and with said trustee, his successors and assigns, for myself, my heirs, executors and administrators to warrant and defend the title to the premises aforesaid against the claims of all persons whatsoever.
In witness whereof, we hereto subscribe our names and affix our seals this 5th day of March, 1870.
John H. Smith (Seal).
Elizabeth B. Smith (Seal).
Tbe acknowledgment, omitting tlie caption and the jurat of the notary, is as follows:
Be it remembered that on this 5th day of March, A. D. 1870, before the undersigned, a notary public, within and for the county of Ray aforesaid, personally came John H. Smith and Elizabeth B. Smith, his wife, who are personally known to me to be the same persons whose names -are subscribed to the foregoing instrument of writing as parties thereto, and acknowledged that they executed the same for the uses and ■ purposes therein mentioned.
And the said Elizabeth B. Smith being by me first examined separate and apart from her husband and made acquainted with the contents of the said instrument, acknowledged that*81 she executed the same and relinquished her dower in the real estate therein mentioned freely and without fear, compulsion or undue influence of her said husband.
At the December term, 1873, of the common pleas, court of Ray county (a court created in 1867, having-concurrent jurisdiction with the circuit court in civil cases, Laws 1867, p. 95) Adam K. Reyburn brought a suit against John H. Smith and Elizabeth Smith, his. wife, David H. Quesenberry, her trustee, and Mary L. Smith, Harvey Smith, Ada Smith, and Wade Wall, to subject the land here in controversy to the payment of a debt claimed to be due by John Henry Smith to said Reyburn. The court found that the deed of March 5, 1870, made by said John Henry Smith and his wife, Elizabeth B. Smith, to David H. Quesenberry as trustee, had been fraudulently made by said Smith while insolvent and unable to pay his debts, and there being-no other property of the said Smith out of which said debt could be paid, said Gunnell land was held subject to the payment of said claim.
Under this judgment the southwest quarter of the northeast quarter, and the southeast quarter of the northwest quarter of section twenty, township fifty-two, range twenty-seven, were sold to satisfy Reybum”s claim against the said John Henry Smith.
The carving out and sale of the said eighty acres from the original Wm. M. Gunnell tract left, therefore, three hundred and twenty acres.
At the February term, 1876, of the circuit court of Ray County, two years after the death of John Henry Smith, Elizabeth B. Smith, with the plaintiffs, and the 'defendant Mary L., together with Harvey Smith, and David H. Quesenberry, as trustee for the parties named in the trustee’s deed of March 5, 1870, and John W„ Shotwell, as guardian for Robert E. Gunnell, who had since become insane, instituted an ex parte proceeding in said court, the purpose being to partition the Gun
This proceeding, after the setting apart of the ‘■fifty-two acres to Robert E. Gunnell, left two hundred and sixty-eight acres of the original ¥m. M. Gunnell tract, being the property described in the petition filed herein.
Errors Assigned. The plaintiffs as appellants assign error in the trial court in declaring the title acquired by John H. Smith from ¥m. H. Gunnell by the deed of October, 1866, to be held in trust for Elizabeth B. Smith during her life and then to her bodily heirs.
The defendants as appellants assign error in that the necessary persons to a complete determination of the issues involved were not made parties; that the issues should have been submitted to a jury; that,plaintiff s’ cause of action, if any they had, was barred by the Statute of Limitations; that the sheriff’s deed purporting to convey the interest of John 0. Gunnell to John H. Smith was inoperative and void; that the deed of March 5, 1870, of John Henry Smith and wife to ■David H. Quesenberry, as trustee, was not intended to and did not convey the estate either in fee or for
I. Defect of Parties. Defendants contend that there is a defect of parties. One witness testified that Nathaniel H. Gunnell, Sr., by his second marriage had one daughter who is still living, who has not been made a party hereto. A careful analysis of the testimony shows that the witness was uncertain as to whether the daughter referred to was by the first or second marriage. In our opinion, the evidence in this regard is not sufficiently certain and cogent to base a conclusion thereon that the daughter referred to, if of the second marriage, was still living, especially in view of the witness’s statement that the daughter he had reference to resided near Richmond when the case was on trial. It is not material that there may be five children of Thomas P. Gunnell now living, and that Wm. H. Gunnell may have left a widow and one son each now living, as both Thomas P. Gunnell and Wm. H. Gunnell have long since transferred by deeds, t¿e regularity of which is not in question, their entire interests in the Gunnell land. We are, therefore, of the opinion that there is no substantial evidence to sustain the contention that there is a defect of parties who should have been joined in this proceeding.
II. Bight to Jury. Defendants further contend that, although they set-up equitable defenses to the petition, they were nevertheless entitled to a jury,
III. Statute of Limitations. The plea of the Statute of Limitations is interposed as a defense. Elizabeth B. Smith was in possession of this property from 1873 to 1907, the date of her death. Before the execution of the deed by Elizabeth B. and her husband, John H. Smith, to Quesenberry, as trustee, March 5, 1870, she held title in the Gunnell land in fee and for life, her interests being in the proportion of eleven forty-eights in fee and nineteen forty-eights for life. These interests being undivided and severable only by judicial action, which had not occurred, her holding as a life tenant, although but partial, was sufficient to prevent the running of the statute under the rule that dur
Ada Hauser, however, is the only plaintiff who can be classed as a remainderman, and hence within the terms of the' rule above stated, the others claiming under the deeds to their father John PI. Smith, the one from the sheriff of Ray county in 1868 conveying the interest of John C. Gunnell, and the other from Wm. H. Gunnell in 1866 conveying the interest inherited from his father James N. Gunnell.
• Whatever interest was acquired in said land by John H. Smith under these deeds, vested in his heirs upon his death, which occurred in 1874, provided he was at the time seized of said interest. We find, however, that on March 5,1870, he and his wife, by their certain deed, heretofore referred to, conveyed all of their right, title and interest in said Gunnell land to David H. Quesenberry as trustee for the sole and separate use of Elizabeth B. Smith during the period of her natural life, and at her death the same to pass, to and vest in fee simple in her two children, Mary L. Smith and Harvey Smith, and Ada Smith, a daughter of said John Henry Smith by a former wife.
IV. Sheriff’s Deed to John II. Smith. The validity of the deed of the sheriff of Ray county, dated March 10, 1868, purporting to convey the interest of John C. Gunnell in the lands in question to John H. Smith, is challenged. It will be recalled that John C. Gunnell went to California not later than 1855, and did not return until sometime in the 80’s, not later than 1889. In December, 1865, more than ten years after
The statement in orders of publication that property had been attached as required by the statute of 1855, was held to be necessary to jurisdiction in Durossett v. Hale, 38 Mo. l. c. 348, in which Holmes, J., speaking for the court, says: “In respect of the notification, the Attachment Act differs from the General Practice Act. It supposes that there may be no personal or other service on the defendant himself, and that the proceeding may be wholly in rem against the property attached. In such case, this is the very thing of which he should have notice, that he may appear and protect his property from sale. But it is enough that the statute expressly requires this fact to be stated in the order of publication, and there is no room for any other construction. It follows that this publication was of no avail whatever, and that the judgment, being rendered against a party who had no notice, was entirely void.”
In Walter v. Scofield, 167 Mo. 537, l. c. 556, Marshall, J., speaking for the court in reference to the
V. John G. Gunnell’s Estate. In this connection the final devolution of the estate of John C. Gunnell may well be determined. It remained in him until his death in 1900, when it passed by descent- to his sister
VI. Validity of Deed to Trustee. Notwithstanding our conclusion heretofore indicated as to the va: lidity of the deed of March 5, 1870’, from John H. Smith and wife, Elizabeth B., to David Quesenberry, trustee, it becomes necessary under the assignment of errors to particularly consider same.
The law governing the conveyance of a married woman’s land in force at the time of the execution of this deed was as follows:
“A husband and wife may convey the real estate ■of the wife, and the wife may relinquish her dower in the real estate of the husband, by their joint deed, acknowledged and certified as herein provided, but no covenant expressed or implied in such deed shall bind the wife or the heirs, except so far as may be necessary effectually to convey from her and her heirs all right, title and interest expressed to be conveyed therein.” [Sec. 2, chap. 109, p. 444, G-. S. 1865.]
Under section 14 of the same statute, page 445, it is required that the certificate of ackowledgment shall state (1) the fact of the acknowledgment, (2) personal knowledge by the-officer taking the acknowledgment of the grantor and that he is the person whose name is subcribed to the instrument as a party thereto, (3) when the acknowledgment is that of a married woman that she was made acquainted with the contents of said instrument, and on an examination separate and apart from her husband acknowledged that she executed the same freely and without compulsion or undue influence of her husband.
It is contended that the certificate of acknowledgment to this deed fails to conform to the requirements of the above statute. The certificate (set.out in haec verba in the statement) provides substantially that
A careful comparison of this certificate with the statute does not disclose in what particular the former fails to conform to the material requirements of the latter. The deed, therefore, so far as the acknowledgment is concerned, must be held to be valid. This eon-clusion is, in our opinion, evident from inspection, and the citation of authorities sustaining deeds having like certificates of acknowledgment would tend rather to obscure than illuminate the question. We have examined the cases cited by industrious counsel in opposition to this conclusion, but do not find them applicable. *
As to the deed itself, it is in no sense ambiguous, and from its phraseology must have been drawn by a skilled draftsman in conveyancing. The facts that John H. Smith owned or claimed to own certain interests in the land and was insolvent and involved in pecuniary difficulties, and that his wife, Elizabeth B., ■owned certain interests therein in fee and others for life, with the remainder in her bodily heirs, does not in the face of the instrument’s perspicuity demand that we look elsewhere than within its four corners for its interpretation. Therefore, as to whose deed it was and what estate it conveyed, it is its own best expositor. The deed was signed by both parties- and
VII. Deed of IF. H. Gunnell to John H. Smith. It is contended that the consideration paid by John H. Smith to Wm. H. Gunnell for the latter’s interest in the Gunnell land, evidenced by the deed of October, 1866, consisted of property belonging to the estate of Nathaniel H. Gunnell, Jr., held by said Smith as administrator of said estate, and, consequently, that the interest in the land so acquired was held in trust by said Smith for his wife, Elizabeth B., who thereby became the equitable owner of same for life, and. upon her death said land descended in fee to her sole surviving heir, Mary L. Murray.
At the time of the purchase of the Wm. H. Gunnell interest, John II. Smith was insolvent and sorely pressed by creditors. There is no evidence that he
- The date (1866) of the deed from ¥m. H. Gunnell to John H. Smith and the death of the latter in 1874, prior to the adoption of the Married Woman’s Act in 1875, render a resort to the common law necessary to determine John H. Smith’s rights in his wife’s property at that time.
Notwithstanding the wife’s equitable ownership in the property derived from the estate of Nathaniel II. Gunnell, Jr., there could be, while the husband occupied the position of administrator of said estate and held the property as a part of the assets of same, no such reduction to possession by him as to vest the ownership of said property in him. Possession by the husband as an executor or administrator, trustee or agent, and not in the exercise of his marital rights, will not constitute such a reduction to possession as to vest the ownership of the property in the husband. [4 Kent (8 Ed.), 114; 15 Am. & Eng. Ency. Law, p. 827, and cases.] Possession by a husband of the wife’s chattels or choses in action, to vest ownership in the former must be in right and by virtue of the marital relation. Control of the wife’s property by the husband in the capacity of a trustee is not sufficient, for here he has a trust to administer and acts in his representative capacity rather than in the exercise of his marital rights. [Keagy v. Trout, 85 Va. 390, 400;
The following cases, while not entirely parallel in their facts with the instant case, contain instructive rulings which by analogy sustain the doctrine above announced: Reed Bros. v. Nicholson, 189 Mo. 396, 407; Boynton v. Miller, 144 Mo. 681, 687; Prewitt v. Prewitt, 188 Mo. l. c. 683; Merket v. Smith, 33 Kan. 66.
We. therefore, hold that John H. Smith held the interest m the Gunnell land acquired by him from Wm. H, Gunnell under the deed made in October, 1866, in trust for his wife, Elizabeth B., remainder in fee to her bodily heirs, under the terms of the will of Nathaniel H. Gunnell, Jr.
YIII. Partition Proceeding. The ex parte partition proceeding to set,apart the interest of Robert E. Gunnell, an insane person, in the Gunnell land, while irregular in many respects, was brought in the names of all the parties who had or claimed an interest in said land, and, although it resulted in the setting apart to Robert E. of twelve more acres than his numerical distributive share in the entire tract of three hundred and twenty acres then belonging to said estate, it was the voluntary act of the parties, and they could have accomplished the same end in a division of said lands out of court. Under this state of facts, we are not inclined to entertain technical objections to the validity of this proceeding. Nor are we impressed with the contention that the doctrine of estoppel is in any way applicable to Elizabeth B. Smith on account of her participation therein. At the time of this proceeding Elizabeth B. Smith held only a life estate in the Gunnell land. Under the devise from her brother, Nathaniel H. Gunxiell, Jr., her estate therein was so limited, and by her joint deed with her husband, March 5, 1870, to the trustee, her estate in fee in said land
IX. Final Devolution of Title. The foregoing ■conclusions as determinative of the title and interests to the Gunnell land may be more clearly understood by the following resume:
At the time of the death of "Wm. M. Gunnell, in 1857, the tract of land of which he is the common ■source of title, consisted of 400 acres.
March 5, 1870, John Henry Smith and his wife, Elizabeth B., conveyed whatever interest they had in ■said land, to a trustee, with reservation for life in and power of disposal by Elizabeth B., remainder in fee “to Mary L., Harvey and Ada Smith.
In December, 1873, under a judgment of a creditor ■of John H. Smith, eighty acres of said land was sold to satisfy said judgment, reducing the tract to 320 •acres.
In February, 1876, in an ex parte partition pro-needing, 52 acres of said land was set apart to Robert E. Gunnell, an insane person, which said land was subsequently sold by his guardian for his support, reducing the tract to 268 acres.
We have apportioned the shares of the parties hereto in said land on the basis of forty-eighths as units of interest, first setting aside the interest of 'Robert E. Gunnell as one share, or sis forty-eighths therein plus twelve acres, this excess being deducted before apportionment, from the other interests.
We find, therefore, at the time of her death Elizabeth B. Gunnell was seized for life of nineteen forty-■eighths of said land, by devise from her brother Nathaniel H. Gunnell, Jr., remainder to her bodily heirs. 'The interests of the remaindermen under this devise
Elizabeth B. as the equitable owner of the one share or six forty-eighths interest of ¥m. H. Gunnell, in said land, purchased by her husband with trust. funds, became upon the latter’s death the owner in fee, of said interest which descended upon her death to her sole surviving heir Mary L. Murray.
The sheriff’s deed to John H. Smith of the one share or six forty-eighths interest of John C. Gunnell in said land being void, upon said John C’s death, his interest descended to his sister Elizabeth B. in fee and npon her death, to Mary L. Murray.
The remainder or eleven forty-eighths interest in said land conveyed by John H. Smith and Elizabeth B., his wife, under the deed of March 5, 1870; to a trustee (reservation in the wife for life with remainder in fee in equal parts to Mary L., Harvey and Ada Smith) created vested estates in these remaindermen, and although Harvey died before his mother, the life tenant, his interest upon her death descended to his heirs. Of this eleven forty-eighths interest, therefore, Mary L. and Ada are each entitled to one-third of same . in fee, and the heirs of Harvey are entitled to their' distributive portions of his one-third interest in fee in accordance with the Statute of Descents as to the whole and half blood.
The foregoing determination of the interests of the parties hereto results in a finding as to their shares in said land in acres, as follows: to Mary L.
From which it follows that the judgment of the trial court should be reversed and remanded, with directions to enter a decree vesting the title in the land in question in the parties hereto as determined in this opinion, and it is so ordered.