Vantine v. Butler
157 S.W. 588
Mo.
1913
Check Treatment

OPINION.

I.

BOND, J.

(After stating the facts as above):-

The first error assigned in the brief of appellants is that the decree below was not supported by competent evidence tending to prove that respondent had any right or interest in the land to be partitioned or present right of possession to a share thereof in sеveralty.

*450Final Judgment. The appellants are in no position to complain of the sufficiency оf the evidence to show the heirship of the plaintiff as, a child of the deceased Jоhn Butler. That issue was determined in respondent’s favor in a suit brought by her against them and others for the purpose of deciding it,, and the judgment so rendered was offered and received in evidence in the present case without any objection ‍​​​‌‌‌​​​​‌​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​‍whatever on the part of appellants. It is true that at the-time it was presented in evidence its conclusiveness was provisional only since it had not then been affirmed on the appeal taken to this court without bоnd; but it was then a final judgment open to execution and conclusive between the parties until it should be reversed. [Rodney v. Gibbs, 184 Mo. l. c. 11; Burgess v. O’Donoghue, 90 Mo. 299; Ritter v. Democratic Press Co., 68 Mo. 458; Railroad v. Atkinson, 17 Mo. App. 484.] This judgment, subsequent to the possibility of its reversal on appeal, was pleadable or evidentiary in any matter arising between plaintiff and the defendants who are-parties thereto. [Rodney v. Gibbs, supra, l. c. 14; Edmonston v. Carter, 180 Mo. 515; 2 Black оn Judgments (2 Ed.), secs. 510, 685; 1 Freeman on Judgments (4 Ed.), sec. 328.] If that judgment ‍​​​‌‌‌​​​​‌​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​‍had been reversed instead of having been affirmed on appeal to this court (Vantine v. Butler, 240 Mo. 521), appellants might have had the advantаge thereof if the present case had still been pending, by a plea of plus darrein contmuamce. [Wade & Osborne v. Emerson & Goldsberry, 17 Mo. 267.] Or if the presеnt case had been tried before the determination of the appeal in the other, appellants might have obtained by proper proceedings an annulment of the dеcision in plaintiff’s favor. But appellants had no right to question ‍​​​‌‌‌​​​​‌​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​‍the conclusiveness of the judgment against them, from which they had appealed without bond, especially since they- did not in аny way seek to postponé the prosecution of the present suit until the determination оf the former and made *451no objection whatever to the introduction in evidence in this cаse of the proceedings in the other.

We, therefore, rule that there was competent evidence in ‍​​​‌‌‌​​​​‌​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​‍this case to support the judgment of the trial court.

Partition: Present Right. II. Neither is there any merit in appellants’ claim, that plaintiff did not have at the institution of this suit a present right to her sharе in severalty of her father’s estate. She might have prosecuted this action and set up her rights as such child in this action independently of a prior suit to establish her heirship and title to her shаre in the entire estate of her father; and in the event of the sustention of those rights on the triаl, she had the same right to a decree for partition which any other heir of her father wоuld have in case of his intestacy. [Breidenstein v. Bertram, 198 Mo. 328 and cases cited; McCracken v. McCracken, 67 Mo. 590.] Hence, she had the same rights of entry аfter such judgment that any other child would have had whose heirship was acknowledged. The present action is only for participancy on her part in a specific portion of the land of the deceased father. The former action was intended to establish her rights gеnerally as his child to an equal share ‍​​​‌‌‌​​​​‌​​​‌​‌‌​‌​‌‌‌​​‌​‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​‍with his other children in all of his estate as if he had died intestate and was predicated upon the terms of the statute entitling the child lof the deceаsed, wbo is not mentioned in his will, “to such proportion of the estate of the testator, real and personal, as if he had died intestate.” [R. S. 1909, sec. 544; Boyer v. Dively, 58 Mo. 510.] It in no wise prevented the bringing оf the present suit.

*452Suit Pending. *451III. These conclusions cover all the defenses made except thе one based on the fact that some of the devisees under the will of the deceased, after the institution of the present suit, brought an action *452against the others to set aside the will. Obvi0118]^ that does not constitute a defense to this action, for the plaintiff in this case does not сlaim under the will and is not affected as to her rights secured by the above statute, whether the will is established or annulled. [Spratt v. Lawson, 176 Mo. l. c. 182; Robertson v. Brown, 187 Mo. l. c. 457.] The rights which enure to the plaintiff are measured by those to which she would have been entitled had her father died without a will; аnd the enforcement of her rights does not trench upon the relations inter sese of the devisees оf the will, who still take according to its devises if that instrument is valid, excepting that they are required to contribute their proportional part to make up the interest and estate which comes to the plaintiff as upon the intestacy of her father. [R. S. 1909, secs. 544, 582.]

The result is the judgment is affirmed.

All concur.