277 Mo. 99 | Mo. | 1919
On February 2, 1915, Olivia P. Wright and others filed in the circuit court' of Pike County, Missouri, their petition for the partition of about eighty-five acres of land located in said county. Esther Hetherlin and various other parties were made defendants in the above action. Under the pleadings, and on the trial below, there were three sets of claimants of the land sought to be partitioned. (1) Plaintiffs claim title through Theodore Purse, administrator de bonis non of the estate of Charles C. Wells, deceased, who purchased the land at an executor’s sale during the administration of the estate of Lemuel M. Wells, deceased, who died testate in the year 1892, his will
The evidence tends to show that- Lemuel M. Wells acquired title to the land in dispute in 1846; that with his wife and children he lived upon said land, and used it as a homestead to the date of his death, in April, 1892. In 1869, Lemuel M. Wells became largely indebted to his brother, Charles C. Wells, of West Virginia, whose estate was administered upon in that State. The debt of Lemuel M. Wells was a part of the assets of the estate of Charles C. Wells. On November 30, 1886, the probate court of Pike County, by an order entered of record, directed James G. Reeds, public administrator of said county, to take charge of the estate of Charles C. Wells, deceased, which said Reeds did, and proceeded to administer the same under the order of said probate court. On April 17, 1888, Reeds, as such administrator, obtained a judgment against Lemuel M. Wells, for $31,395.41/ An execution was issued on this judgment and placed in the hands of the sheriff of Pike County, Missouri. The latter, on September 13, 1888, levied upon and sold the land in said county belonging to Lemuel M. Wells,
Lemuel M. Wells died in April, 1892, the owner of said land as a homestead. His widow Kate W. Wells,, survived him, but he had no minor children at the time of his death. The widow continued to use the homestead until the date of her death, in August, 1914. Lemuel M. Wells’ will was dated April 21, 1892, and was probated iin Pike Couny, Missouri, on May 11, 1892. He gave to his wife a life estate in the homestead of 85 acres, find the remainder was to be divided between his son, John T. Wells, or hisi heirs, and Emma J. Hetherlin, or her heirs. Emimia Hetherlin died after her father, leaving a husband and four children surviving her, who are the appellants in this cause.
Under the terms of the will of Charles C. Wells, the interest which testator had growing out of the notes which he held against his brother, Lemuel M. Wells, and which includes the homestead in controversy, was devised and bequeathed as follows: One-third to the children and heirs at law of his brother, Lemuel M. Wells, one-third to the children and heirs at law of his sister, Sadie Rachel Austin, and one-third to the children and heirs at law of his brother, J. D. Wells. The children and heirs at law of these two brothers of Charles C. Wells, viz., Lemuel M. Wells, J. D. Wells, and of the sister, Sadie Rachel Austin, are all parties to this suit, and are all plaintiffs in the case, except
After the death of Lemuel M. Wells, Lewis Holliday, who was named in the will as executor, qualified and administered on his estate, in the probate court of Pike County, Missouri.
On May 14, 1892, letters of administration were granted,, in vacation of the probate ,court of Pike County, Missouri, to Theodore Purse, as administrator de bonis non of the estate Charles C. Wells, deceased, and his appointment was approved by said probate court, June 20, 1892. His bond was approved by the probate court.
Soon after the appointment of said Purse as administrator de bonis non aforesaid, he sued out a writ of scire facias to revive the judgment of April 17,1888, for $31,395.41. The suit to revive said judgment was in the name of “Theodore Purse, Administrator.de bonis .non of the Estate of Charles C. Wells, deceased, against Lewis Holliday, Executor of the Estate and Will of Lemuel M. Wells, deceased.” The judgment was revived as above stated, September 1, 1892. A number of claims and demands were allowed against the estate of Lemuel M. Wells, and the widow was given her usual allowances. Among the claims was the judgment of the Charles C. Wells estate, which was classified by the probate court on November 17, 1892, in favor of Theodore Purse, administrator de bonis non of the estate of Charles C. Wells, in the sum of $35,200, and assigned to the fourth class of-demands.
On February 12, 1894, a renewed order of sale was made by the probate court, at its regular February term, 1894, containing the usual recitals that the sale had not been made under the original order.
Under date of May 18, 1894, the probate court records recite that the executor, Lewis Holliday, had sold the real estate in the order of sale described, including the homestead, and that Theodore Purse, administrator aforesaid, had purchased the homestead
Theodore Purse was a son-in-liaw of Lemuel M. Wells, and died prior to the institution of this suit. His heirs at law are among the plaintiffs and are only claiming, with the other plaintiffá, as beneficiaries under the Charles C. Wells’ will.
The files of the probate court relating to the sale of the homestead tract are printed in the abstract of record, and show that all the proceedings are regular, if the probate court had the power to appoint Theodore Purse administrator de bonis non of the estate of Charles C. Wells, deceased.
The $1455, which was paid for the homestead tract by Theodore Purse, went into and formed a part of the Lemuel M. Wells’ estate, and was used by the executor, in connection with other funds in his hands, in paying other allowed demands in full, which belong to classes prior to the fourth class, including taxes, expenses of administration, etc., a portion of it being applied to the fourth class claim in favor of the estate of Charles C. Wells, deceased.
The trial court, after ascertaining and determining the interests of the parties in the land aforesaid, found and recited of record that it could not he partitioned in kind and ordered a sale of same, etc. Esther Hetherlin, Adeline Hetherlin, John Hetherlin, Ralph Hetherlin, T. Guy Hetherlin and Job T. Wells filed their motion for a new trial, which was overruled, and the cause duly appealed by them to this court.
Was the action of the probate court, in making said appointment, void? It appears from the record that about 1869, Lemuel M. Wells, while living in Pike County, Missouri, became largely indebted to his brother, Charles C. Wells, a resident of West Virginia, as evidenced by a promissory note; that said Charles C. Wells died January 14, 1885, testate, in West Virginia, and his estate was administered upon there. The probate court of Pike County, Missouri, on November 30, 1885, ordered James Gr. Reeds, public administrator of Pike County, to take charge of the estate of said Charles C. Wells, deceased, in said county. Reeds, as public administrator, took charge of said estate, and on the 17th-day of April, 1888, obtained judgment in the circuit court of Pike County, ’Missouri, against said-Lemuel M. Wells, on the note aforesaid, for $31,395.41. An execution was issued on this judgment, and through inadvertence, the homestead, with all the other land of said Lemuel M. Wells, was sold thereunder, for about $5300. The homestead of said Wells had been set off! by commissioners before said sale. After the real estate, of Lemuel M. Wells, outside of the homestead, had been exhausted, it left more than $25,-000 still due and unpaid on said judgment. Reeds, as public administrator, made his final settlement with the probate court aforesaid, and was, on September 12, 1890, discharged accordingly.
Lemuel M. Wells died testate in April, 1892, and in his will, dated April 21, 1892, attempted to dispose of the homestead in controversy. At the time of his
The judgment of revival was entered on September 1, 1892, and said judgment, among other things, recites the following:
“Now at this day the parties appear by their respective attorneys, and this cause coming on to be heard, and being submitted to the court,” etc.
In other words, the record recites that both parties appeared to the action. The judgment was revived for the sum of $35,200, and a transcript of same was ordered to be certified to the probate court of Pike County, Missouri, for allowance against the estate of Lemuel M. Wells- This judgment, as revived, was allowed and placed in class four by the probate court aforesaid.
Turning to Section 1 of Article 6 of the Constitution of 1875, we find that it contains the following provisions :
“The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in . . . probate courts.”
Section 1023, Revised Statutes 1879, which is the same as Section 3225, Revised Statutes 1889, reads as follows:
“The Supreme Court of the State of Missouri . . . and the probate courts in this State shall be*110 courts of record, and shall keep just and faithful records of their proceedings.”
Section 34 of Article 6 of the Constitution of 1875 provides that:
“The General Assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge, who shall be elected. Said court shall have jurisdiction over all matters pertaining to probate business, to granting letters testamentary and of administration.” (Italics ours.)
The Legislature, in 1877, carried the above provision of the Constitution into effect by the enactment of Section 1176, Revised Statutes 1879, which reads as follows:
“Said court shall have jurisdiction over all matters pertaining to probate business', to granting letters testamentary and of administration.” (Italics ours.)
This section was carried into Revised Statutes of 1889 without change, and there appears as Section 3397.
The provisions of the Constitution of 1875 above quoted appear as new sections in said instrument. They .confer upon the probate courts of this State general jurisdiction over the subjects above mentioned. We are of the opinion that the constitutional provisions aforesaid, in connection with the sections of the statute carrying the same into effect, conferred upon the probate court of Pike County, Missouri, ample power and jurisdiction to appoint Theodore Purse as ancillary administrator of the estate of Charles C. Wells, deceased. The legal representative of the latter estate in West Virginia could not sue in Missouri. The public administrator heretofore had made his final settlement of said estate in Pike County, and had been discharged. Here was a judgment for more than $25,000 in favor of the estate of Charles C. Wells still unpaid. After the death of Lemuel M. Wells, if the homestead could then be sold under the jurisdiction of the probate court for the payment of his-
Section 2693, Revised Statutes 1879, was passed in 1875. [Laws 1875, p. 60, sec. 1.] The same was carried into Revised Statutes of 1889 as Section 5439. It reads as follows:
“If any such housekeeper or bead of a family shall die, leaving a widow or any minor children, bis homestead to tbe value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow; and such homestead shall, upon the death of such housekeeper or head of a family, be limited to that period. But all the right, title and interest of the deceased housekeeper or head of a family in the premises, except the estate of the homestead thus continued, shall be subject to the laws relating to devise, descent, dower, partition and sale for the payment of debts against the estate of the deceased, and the probate court having jurisdiction of the estate of the deceased housekeeper or head of a family shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.”
PEE CURIAM: — The foregoing opinion of Bailey, C., is adopted as the opinion of the court.