Mourning v. Missouri Coal & Mining Co.

| Mo. | Oct 15, 1889

Sherwood, J.

Plaintiff brought ejectment for eighty acres of land in Lincoln county. After a general denial, the answer sets up as an equitable defense, that the debts allowed against the estate of Elizabeth Mourning were an equitable charge against the land in litigation.

The case was submitted to the court upon the following agreed statement of facts: “The following facts are agreed upon between the plaintiff and defendant: That the common source of title to the lands in dispute is Thomas Mourning, who died in Lincoln county, Missouri, in the year of 1837, owning the land in controversy; that said Thomas Mourning, Sr., left surviving him seven children, namely: Nancy Mourning, who died without issue in-the year of 1842; Thomas Mourning, Jr., who died without issue in the year 1847; John Mourning, who died in the year 1866, leaving four children; Louisa Mourning, who died without issue in the year of 1878; Susan Mourning, who died without issue in the year 1881 or 1882; Elizabeth Mourning, who died without issue in the year 1884, and Wm. R. Mourning, the plaintiff in this cause; that said Thomas Mourning, Sr., left a will which was duly probated in Lincoln county, Missouri, a copy of which is hereto attached and made a part of this agreed statement; that the value of the lands sued for does not exceed six hundred dollars, and that the rents and profits are twenty-four dollars per year; that the plaintiff is the surviving child of said Thomas Mourning, Sr., and claims title as such, and that the defendant claims title through a sale of said lands made by the administrator of the estate of Elizabeth Mourning for the payment of debts to the amount of $272.10 allowed against her estate; that the said Elizabeth Mourning was the surviving one of the four daughters of the said Thomas Mourning, Sr., mentioned in his last will, and was at the time of her death, in 1884, seventy-one years old; that, for two or three years before her death, the said Elizabeth Mourning was an invalid and almost helpless, and that the debts so allowed against her estate, and for which said lands were sold by her administrator, were for board, clothing, support and attention during said years, the rents and profits of said lands being insufficient to x)aN i°r the same; that said Elizabeth Mourning had no other property than her interest in said lands out of which said allowed claims could be paid.”

The will of Thomas Mourning is as follows:

“I, Thomas Mourning of Lincoln county, Missouri, do on this twenty-eighth day of April, 1837, make this my last will and testament, in manner and form as follows, viz.:

“1. After all my just debts and funeral expenses shall have been paid, I do will and bequeath all of my real and personal estate to my four daughters, namely : Elizabeth Mourning, Nancy Mourning, Susan Mourning and Louisa Mourning, to have and to hold the same so long as they live or remain unmarried, the whole to be jointly held in an undivided estate for .their several support.

“2. If either of them should marry, those remaining unmarried may give them such portion of the estate as they may think proper not exceeding one-seventh of the whole value, to be charged to her or them at the final division, which shall take place at the marriage or death of them all.

“3. It is my wish that at the death or marriage of my four daughters that the whole of my estate then be sold and an equal division made between my children, namely : John Mourning, Elizabeth Mourning, Thomas Mourning, Nancy Mourning, Susan Mourning, Louisa Mourning and William Mourning, charging my son John Mourning with one hundred and eighty-six dollars, with interest from the first day of November, A. D. 1830, the time I advanced it to him in Virginia.

“4. And lastly I do hereby appoint my friend, Macon A. Shelton, my executor of this, my last will and testament, hereby revoking all other or former wills by me heretofore made.

“In witness whereof,” etc.

This was all the evidence; no declarations of law were asked.

The court gave judgment for the plaintiff for the whole land, and defendant appeals.

The equitable defense set up in the answer amounts to nothing because there was no charge or lien created on the property which authorized a sale of that property in discharge of such charge or lien. And it is unneces-. sary to discuss the share to which the children of John Mourning, who represents their father’s title, are entitled. Encumbered as- that share is by the early advancement made to their father in 1830, and the accumulating interest thereon, their share, in view of the estimated value of the land, is worthless.

Under our statute of descents and distributions, Elizabeth, the last survivor of the four daughters, became entitled by the law of inheritance to her proportionate share of the land in dispute, and, being thus entitled, that share at her death, and independently of any provision in the will, became subject to administration sale for the payment of her debts. So that defendant is now the owner of that inherited interest. But the court allowed the jilaintiff to recover the whole tract. This was more than he was entitled to recover, and for such error we reverse the judgment, and remand the cause.

All concur.