| Mo. | Oct 15, 1887
This suit is by ejectment to recover possession of certain lands in St. Louis county, in which the plaintiffs obtained judgment, from which defendants have appealed.
The common source of title was admitted to be in one John D. Wolff, who died in January, 1846, leaving a paper admitted to probate as his will, so much of which as is necessary to a disposition of the questions arising in the case is as follows : That all the property which he and his said wife had in possession, be it personal or real estate, or outstanding moneys, that is, all of the specified property which legally belonged to him, should become the sole property of his wife, and should in fact, after his death, be a bequest, gift, and devise from him to her, and that she should, until her death, manage and dispose of it as she pleased, and that he desired to be understood as empowering her, in cases of .necessity, to sell not only personal, but real property. He also desired that, after the death of his wife, the remainder of his property should be equally divided among his children and heirs, as follows: That the upper half of his landed property lying on the county road, together with the house standing on it, should
It appears from the evidence, that, at the request of the widow, Eva M. Wolff, in the winter of 1846-7, a parol partition of the land, consisting of something over two hundred acres, was made, under which the four children took possession of their respective portions allotted to them, cultivated and improved the same. The portion of land in dispute in this suit fell to the daughter, Elizabeth, she being, at that time, married to' one Hartman Herbell, who built a stone house on it and lived there. In 1856, or 1857,. the said Eva, widow of said John, moved into the house and lived there with her daughter and family. In 1857, or 1858, said Herbell ■died, and the said Elizabeth, his widow, thereafter intermarried with one John Scheidt, and died in 1872. She had children by her first marriage, who are the defendants in this suit, and also children by the second marriage, who are the plaintiffs in this suit, and base their right to recover as heirs of said Elizabeth, under the will of said John D. Wolff, deceased. The children of said Elizabeth, by her first marriage, and defendants in this suit, claim the land in suit by virtue of a deed, executed by said Eva M. Wolff, in 1872, conveying to them a fee to the land in suit, after her life •estate. ,
This deed was to take effect in possession after the death of s'aid Eva; it recites that the land was sold in consideration of the sum of one dollar, and unpaid and indispensable services rendered, said services having been matters of necessity towards the maintenance and ■existence of said Eva, and in consideration of similar services yet to be rendered. Plaintiffs attacked this deed by evidence tending to show that the land was not sold ■or conveyed to provide for the necessities of said Eva,
It appears from the record that by consent the issue tendered by this evidence was submitted to a jury in the following form: “Was the execution of the deed from Eva Magdalena Wolff to the defendants, read in evidence to the jury, necessary for the support and maintenance of the grantor, and made in good faith for the purpose of securing such support and maintenance ? ” The jury found the issue for plaintiffs and by consent a judgment was entered thereon for plaintiffs, and it is from this judgment that defendants have appealed.
It is contended by counsel that Mrs. Wolff was to be the sole judge as to whether her necessities required the sale of the land, and that having sold it under the power, the deed cannot be assailed at law. It may be conceded, as is contended, that Mrs. Wolff was the donee of a power under the will of her husband, and that, notwithstanding the fact that the deed to defendants did not in terms refer to the will, it is to be regarded as having been made in execution of the power conferred. Campbell v. Johnson, 65 Mo. 439" court="Mo." date_filed="1877-10-15" href="https://app.midpage.ai/document/campbell-v-johnson-8005683?utm_source=webapp" opinion_id="8005683">65 Mo. 439. While this is so, it is clear, we think, from the terms of the will, that it was the intention of the testator to invest only a life estate in his wife with the power to dispose of the fee in case her necessities or actual needs required it, that her power to convey the fee was dependent on a contingency which must happen or exist before the power to thus dispose of the land could be called into exercise; and it appears from the record before us, that, by the consent of parties, the fact as to whether the necessity contemplated by the will existed at the time the deed was executed was submitted to a jury, and that the judgment by consent was rendered on their finding.
We do not understand that counsel insist that a
So in case of Eitelgeorge v. Building Ass’n, 69 Mo., at p. 55, it is held when the power in a deed has not been executed according to essential conditions the sale and deed, will be held void. See, also, Powers v. Kueckoff, 41 Mo. 425" court="Mo." date_filed="1867-10-15" href="https://app.midpage.ai/document/powers-v-kueckhoff-8002288?utm_source=webapp" opinion_id="8002288">41 Mo. 425; Koehring v. Muemminghoff, 61 Mo. 403" court="Mo." date_filed="1875-10-15" href="https://app.midpage.ai/document/koehring-ex-rel-martin-v-muemminghoff-8005187?utm_source=webapp" opinion_id="8005187">61 Mo. 403. The question of fact having been submitted to a jury, by consent, as to whether the needs or necessities of Mrs. Wolff required the sale to be made, neither their finding nor the judgment rendered upon it, will be disturbed, the evidence tending strongly to show that Mrs. Wolff’s object in making the deed was simply to
We think that the judgment was, on the whole record, for the right party, and it is hereby affirmed.