146 Mo. App. 598 | Mo. Ct. App. | 1910
Solomon Painter died in May, 1883, leaving four sons and four daughters. The devising clause of his last will was. as follows:
“After the payment of my debts and funeral expense, I want all of my personal property and farming utensils and real estate left to my wife and children*600 during her single life, at her death it is to he sold and equally divided among my children, except my three boys, Herman and Otto and John, I want to give one hundred and fifty dollars advantage of the girls. All the surplus money made over and expenses to be put at interest. I further claim the right of everything- so long as I live; at my death I want three disinterested men to appraise the property and put it in book form, and at her death the same process.”
Sophia Painter, widow of the testator, survived him until November, 1906, or twenty-three years, when she died. The defendant, Lizzie Painter,' who is one of the children of Solomon and Sophia Painter, lived on the home place with her mother until the latter died, and according to the testimony of plaintiff, Herman Painter, the mother remained until her death in possession of all the personal property left by Solomon Painter. He testified further certain articles of personal property which had formerly belonged to Solomon Painter were on the home place when his mother died. No administration was granted on the estate of Solomon Painter until December 10, 1906, or about a month after the death of the widow, when Herman Painter was appointed administrator and as such inventoried what personal property still remained at the home place. He testified there were some tables, a heating stove, chairs, vice and anvil, wagon, bed, desk, benches, two mules and other property; that after his appointment he went to the home place and demanded to be allowed to have those articles appraised as belonging to the estate of Solomon Painter, but defendant, Lizzie Painter, met plaintiff and his appraisers at the door of the house and refused to let them enter to appraise the property, saying she had bought everything and it all belonged to her, turning over to plaintiff some old papers which she said were all that belonged to her father’s estate. Plaintiff testified the property which remained on hand and belonged to his decedent’s
At the date of the alleged conversion, to-wit, in December, 1903, it is certain the plaintiff was neither in possession of the property alleged to have been converted, nor did he have title to it, for he had not been appointed administrator, and was not appointed until three years later. We do not say plaintiff, as an administrator subsequently appointed, cannot maintain an action for a conversion at that date, if one occurred, having no occasion to decide the point, as we hold no testimony was adduced tending to prove a conversion by defendant at said date, or any time near it. By the will of the testator, the property in controversy belonged to his wife and children during her life, and they owned it as co-tenants. In strictness of law the
It by no means follows defendant was entitled to retain the property against the demand of the administrator of her father-in-law’s estate after one had been appointed, even if she had purchased from her mother; for the mother had only a life estate as co-tenant with her children. Hence we merely affirm the judgment without prejudice to the right of plaintiff to bring an action for conversion after demand made by him for possession of the property, but in so ruling we must not be understood to intimate any opinion as to what would be the result of such an action.
It is ordered the judgment be affirmed.