This is an action at law, commenced by plaintiffs as the children and grandchildren of Mary E. Crews, deceased, in the Circuit Court of Howard County, Missouri, on April 17, 1917, to quiet title to 50.19 acres of land in the southeast quarter of Section 13, Township 51, Range 17, located in said county, and more fully described in the petition. The suit was brought against the heirs at law of Robert D. Maupin, deceased, who are named in the petition as defendants; also against Joseph C. Maupin and his children, whose names are set out in the petition; also against the heirs at law of Perthana T. Miller, deceased, whose names are set out in said petition, and who are the only appellants in this cause, and are the only defendants who claim any interest in said land adversely to plaintiffs. The petition alleges that plaintiffs are the owners in fee of the real estate aforesaid, as tenants in common,
according to their respective interests as alleged therein; that defendants claim some interest in said land adversely to plaintiffs, etc. The court is asked to ascertain and determine the respective interests, titles, etc., of the parties herein, etc.
The heirs at law of Perthana T. Miller, deceased, to-wit, William Y. Miller and wife, J. Earl Miller and wife, and Annie Crews and husband, filed their joint and separate answer, in which they set out the will and codicil thereto, of William M. Maupin, deceased, claim an interest in the real estate aforesaid, under said will and codicil, and likewise plead other matters which will be referred to hereafter.
Respondents filed a reply to the answer aforesaid, admitted certain allegations of the answer to be true, denied all other allegations therein, pleaded the ten-year Statute of Limitations as a bar to the claim of said defendants, as well as other matters, which will be considered later.
It appears from the record that the notes of the testimony taken by the court stenographer at the trial were burned with the court house at Moberly, and counsel for the respondents and appellants have agreed upon the material facts of the case, as follows:
William M. Maupin was the common source of title. William M. Maupin executed a will and testament on the 8th day of February, 1871, and also executed a codicil thereto on the 4th day of August, 1873. At the date of said will and codicil, said William M. Maupin was the owner of 585.84 acres of land in Howard County, Missouri, a description of which is unnecessary. William M. Maupin died on the 13th day of September, 1879, and his said will and the codicil thereto was duly proven and admitted to probate in the Probate Court of Howard County, Missouri, on the 7th day of October, 1879, and letters testamentary issued to Joseph C. Maupin on the 8th day of October, 1879. Said will and codicil are in words and figures as follows.
"Last will and testament of William M. Maupin.
"I, William M. Maupin of Howard County in the State of Missouri, do make and publish this my last will and testament as follows:
"Item 1st. I will and desire that my funeral expenses and all just debts be first paid.
"Item 2nd. It is my will and desire that my beloved wife, Margaret A. Maupin, take such part of my estate to which she may be entitled as dower, but to have choice of such stock as she may desire at valuation.
"Item 3rd. I give and bequeath to my daughter Perthany T. Maupin my Pina Forte to use during her natural life, and after her death to go to her children, but in the event of her death without children, I give the same to my daughter Mary Eliza Crews for her sole and separate use or to her daughters. I desire, however, that the Pina Forte shall not be charged to my daughter Perthany, but she is to have the same over and above the other children.
"Item 4th. I have heretofore given my children Mary Eliza Crews and Robert D. Maupin property valued at three hundred dollars, which is to be charged them, and my other children I desire to have an equal amount of three hundred dollars in property each, which if not in my life-time I desire to be given them out of my estate to make them equal with the others.
"Item 5th. The balance of my estate after providing for my wife and paying the specific legacies above and after giving my son Joseph a good education I wish to be divided among my four children, Mary Eliza Crews, wife of William Crews, Robert D. Maupin, Perthany T. Maupin and Joseph Maupin. I will and desire, however, that the property so devised to my children shall be held, used and enjoyed by them only for and during their natural lives and after their death to the children born of their bodies and the portions to my daughters to be held for their sole and separate use, and in case of either of my children dying without
children born of their bodies, the other children shall take the share of such deceased child to be held with same limitations as the original bequest. In the event it is thought advisable to sell any portion of the estate devised, it may be sold by a trustee whom the probate or circuit court shall appoint and the proceeds invested for the use of the children as aforesaid and the property held for the same use and limit.
"Item 6th. In making the division of my real estate I desire that my son Robert D. Maupin shall take the farm on which he lives, the value to be ascertained by the appraisement of three disinterested parties appointed by the county or probate court and that my daughter Mary Eliza Crews shall have set off to her the place on which she lives, the value to be ascertained as above, and my other two children and wife to be provided for out of my estate, all to be valued and set off to them as aforesaid so as to make them equal, and when the shares are unequal to be made equal out of other property or out of my personal estate.
"Item 7th. I have permitted my son Joseph to trade in property though under age and I desire that he shall keep such property as he has acquired and holds at my house as his own property and not to be charged to him.
"Item 8th. I appoint my wife Margaret A. Maupin and Robert D. Maupin my executors jointly and after the arrival of my son Joseph to the age of twenty-one years, in case I die before he arrives at that age, to act with them as executor, and so far as possible to consult with my friend Thomas Shackleford in winding up my estate.
"In testimony whereof I have hereunto set my hand and seal the 8th of February, A.D. 1871.
"W.M. MAUPIN (Seal). "Attest: T. Shackelford Th. E. Birch.
"Codicil.
"I, William M. Maupin, do make and publish this my codicil to my last will and testament. Instead of my son Robert D. Maupin taking the farm on which he lives mentioned in Item 6th I desire that my son Robert D. Maupin and my son Joseph Maupin take my home place jointly to be valued to them as indicated in my said will.
"Witness my hand and seal this 4th day of August, 1873.
"W.M. MAUPIN. (Seal.)
"Attest: Th. E. Birch"
Oath of attesting witnesses made before J.T. Smith, Judge of the Probate Court of Howard County, Missouri, on the 3rd and 6th of October, 1879.
Testator left surviving him a widow, Margaret A. Maupin, and two daughters and two sons, namely, Mary E. Crews, wife of William Crews, Perthana T. Miller, wife of William B. Miller, and Robert D. Maupin and Joseph C. Maupin, all of legal age.
Mary E. Crews, then a widow, died intestate, on the 9th day of October, 1916, leaving the plaintiffs in this cause as her only heirs at law.
Robert D. Maupin died on the 11th day of April, 1905, leaving defendants Cleve T. Maupin, R. Lee Maupin, Bettie Edwards, Blanche Hackley, Mattie Joe Miller, and Aggie Besgrove as his children and only heirs at law, who were all of full age at that time.
Perthana T. Miller died on the 20th day of June, 1903, leaving the defendants, William Y. Miller, J. Earl Miller and Annie Crews, her children and only heirs at law, who were then all of full age.
After making said will and codicil, to-wit, on the 30th day of September, 1875, said William M. Maupin, and Margaret A. Maupin, his wife, by their warranty deed of that date, recorded in Book 18, page 433, in the office of the Recorder of Deeds of Howard County, Missouri, conveyed to his daughter, the said Mary E.
Crews, in fee simple, sixty-five acres of land, being the same land on which she was living at the date of said will and being the same set apart to her in the 6th item of said will.
On the same day, to-wit, the 30th day of September, 1875, said William M. Maupin and Margaret A. Maupin, his wife, conveyed in fee simple to said Robert D. Maupin, Joseph C. Maupin and one William B. Miller, husband of said Perthana T. Miller, and father of defendants, William Y. Miller, J. Earl Miller and Annie Crews, 367.60 acres of land in Howard County, Missouri. It may be presumed that he made his children equal in this division of land. None of the land in these last two deeds is involved in this suit. These two deeds left the testator owning at the time of his death only the home place mentioned in the codicil to the will and containing 151.30 acres. Of this home place, 46.00 acres was sold by the executor by proper judicial proceedings for the payment of debts of the estate of said William Maupin, and the balance of the home place, 105.30 acres, was duly assigned and set apart to the widow for and during her natural life as a homestead, she having duly renounced the provisions of the will.
Margaret A. Maupin, the widow of testator, died on the 15th day of December, 1881.
The land described in the petition, being 50.19 acres, is a part of this homestead tract of 105.30 acres, and is the subject of dispute in this case.
After the death of the widow, the shares of the four children of the testator were equalized by a voluntary settlement and partition among themselves, in pursuance of which the said Perthana T. Miller, and her husband, William B. Miller, on the 10th day of January, 1882, for a consideration of $900, conveyed by a general warranty deed with a clause of grant, bargain and sell, and purporting to convey a title in fee simple, all their undivided one-fourth interest in and to said homestead tract, to Joseph C. Maupin.
Likewise the said Robert D. Maupin, and Mattie Maupin, his wife, by their general warranty deed with like clauses and purporting to convey a title in fee simple, on the 23rd day of December, 1881, for a consideration of $1065, conveyed to said Mary E. Crews, all of his title and interest in said homestead tract.
Afterwards, on the 18th day of September, 1882, the said Joseph C. Maupin and the said Mary E. Crews, made a voluntary partition of said land by interchange of warranty deeds, with like clauses and of like import, whereby the said land described in the petition was assigned, set apart and conveyed in severalty to said Mary E. Crews, and the remaining 55.11 acres of said homestead tract and home place were allotted, set apart and conveyed to said Joseph C. Maupin. Said division was fair and equal at the time it was made and the land allotted to each of said parties was of equal value.
On said 18th day of September, 1882, the said Mary E. Crews entered into the possession of the said land, being the same land described in the petition, and from that day said land has been in the open, notorious, exclusive possession of the said Mary E. Crews up to the date of her death, to which she claimed ownership, and thereafter the plaintiffs, her heirs at law, since her death. The said Mary E. Crews and the plaintiffs have paid all taxes lawfully due on said land since said date, and none of the defendants nor any one under whom they claim or might claim have paid any taxes on said land or begun any action for the recovery thereof prior to the filing of the separate answer of appellants in this cause.
The defendants and appellants, William Y. Miller, J. Earl Miller and Annie Crews received from the estate of their mother, the said Perthana T. Miller, money and property of equal or greater value than the value of the interest now asserted by them in said land. The defendants, Cleve T. Maupin, R. Lee Maupin, Mattie Joe Miller, Bettie Edwards, Rosa Ola Washburn Blanche Hackley and Aggie Besgrove, children and heirs
at law of said Robert D. Maupin, likewise received from the estate of their said father, money and property of equal or greater value than the interest which the separate answer of appellants allege they own in the land described in the petition.
None of the defendants, except said William Y. Miller, J. Earl Miller and Annie Crews, children of said Perthana T. Miller, claim any interest in said land in dispute in this action or join in the appeal.
This suit was begun by the filing of the petition in the Circuit Court of Howard County, Missouri, on April 17, 1917. The separate answer of appellant was filed on the — day of May, 1917.
This was all the evidence.
The case was tried before the court without a jury and without instructions. No adverse rulings of the trial court are complained of, in regard to the admission or exclusion of evidence. On May 31, 1917, the trial court found the issues in favor of respondents, and entered a decree accordingly, reciting the facts found by the court. Respondents were declared to be the owners in fee of said real estate, and appellants were held to have no title thereto, nor interest therein, except that defendant, Cleve T. Maupin, is given a lien for $72.05 and costs, on the interest of Harry Crews in said land. Said decree, likewise set out the respective interests of plaintiffs as tenants in common in said land, as found by the court.
Appellants, in due time, filed their motions for a new trial and in arrest of judgment, both of which were overruled, and the cause duly appealed by them to this court.
I. This is purely an action at law, under Section 2535, Revised Statutes 1909, to quiet title to the 50.19 acres ofAction Howard County land described in the petition.at Law.
The codicil to the will of William M. Maupin, deceased, was executed on August 4, 1873, and reads as
follows: "Instead of my son Robert D. Maupin taking the farm on which he lives mentioned in Item 6th I desire that myCodicil. son Robert D. Maupin and my son Joseph Maupin take my home place jointly, to be valued to them as directed in my said will."
If the above codicil be construed as vesting in Robert D. Maupin, and Joseph Maupin, the fee simple title, as tenants in common, to the land in controversy, it is clear that appellants
can have no interest therein, for they are not the heirs at law of either Robert D. Maupin or Joseph Maupin.
II. If the deeds, made by the testator and his wife, after the execution of the will and codicil, and the operation of law after his death in appropriating 46 acres of the home place to pay his debts, and setting off the remainder as a homestead toIntestate his widow, exempted the whole estate from theProperty. operation of the will, and the residue of the home place, on the death of the widow, became intestate property, then these appellants would have no interest in said land on acount of the deeds made by testator's children, mentioned in the agreed statement of facts. In other words, as Perthana T. Miller and her husband, on January 10, 1882, for the consideration of $900, conveyed by warranty deed, a fee simple title of all their undivided one-fourth interest in and to said homestead tract, to Joseph C. Maupin, it left appellants without any interest in said land, if it was intestate property.
III. Assuming for the purposes of the case, that the land in controversy did not become intestate property, as heretofore suggested, and assuming that the fee simple title toTestate said land, did not pass to Robert D. Maupin and JosephProperty. Maupin as tenants in common, under the codicil aforesaid, then what estate was conveyed by the codicil in connection with the will, and to whom?
Taking the foregoing assumptions as true, we are of the opinion, that Robert D. Maupin, at the death of
testator, became vested with a life interest in the undivided one-half of the 105.30 acres, left after the payment of debts, subject to the widow's homestead rights. By virtue of said will and codicil, the children of said Robert D. Maupin, born of his body who were living at the time of testator's death, became vested as remaindermen with the fee simple title to the undivided one-half interest in said land, subject to the life estate of their father. [Sec. 2872, R.S. 1909; Collins v. Whitman, 222 S.W. l.c. 842-3-4; Dunbar v. Sims, 222 S.W. l.c. 839-40; King v. Theis, 272 Mo. 416.] If any children were born of the body of said Robert D. Maupin, after the death of testator, they were entitled to take and hold, as remaindermen, their proportionate part, of said undivided one-half interest, subject to the life estate of their father. [Barkhoefer v. Barkhoefer, 204 S.W. l.c. 909-10; Buckner v. Buckner, 255 Mo. 371; Carter v. Long, 181 Mo. l.c. 709; Cates v. Seibert, 157 Mo. 271; Tiedeman On Real Property, sec. 175, foot notes; 2 Underhill On Wills, sec. 558, pp. 731-2.]
The same principles of law apply to Joseph Maupin and his children.
We think it is perfectly clear from a consideration of all the provisions of the will, in connection with the codicil, that the testator contemplated, and intended, that Robert D. Maupin and his said children, should together take an undivided one-half interest in fee simple in said real estate; that said Joseph Maupin and his children should together take an undivided one-half interest in fee simple in said land; and that said life tenants, were to be considered as tenants in common. The foregoing conclusion, precludes the appellants from owning or holding any interest in said property, as they are not the heirs at law of either son.
Considering the will and codicil as a whole, we are of the opinion, that testator, in the execution of the codicil, did not intend that either of his other two children — Mrs. Crews or Mrs. Miller — should take any
interest in the homestead property, nor that the children of either should take any part of same. He was devising this property absolutely to Robert D. and Joseph Maupin, and their children as aforesaid, and expected these sons to make up to their sisters what would have been their proportionate part of same, if it had been conveyed to all four of the children. We think, the will contemplated this, and the four children, after the death of the widow, equalized their shares in the homestead tract, by Perthana T. Miller and husband, on January 10, 1882, conveying their interest in said tract to Joseph C. Maupin for $900, while Robert D. Maupin exchanged positions with Mary E. Crews, and received from her, $1065, for his interest in said homestead tract.
It is likewise conceded in the statement of facts that these appellants received from the estate of their mother, Perthana T. Miller, money and property of equal or greater value than the value of the interest now asserted by them in said land.
If this were considered a proceeding in equity, we are of the opinion, that appellants' claim of interest in the land aforesaid, is without merit.
IV. Even if it be conceded (for the purpose of the case only), that Perthana T. Miller was entitled to a life estate in an undivided one-fourth interest of the land in dispute, and that her children were entitled to the remainder of saidLimitations. undivided one-fourth interest, yet, when said Perthana T. Miller died on June 20, 1903, the ten-year Statute of Limitations began to run at once against these appellants, and their claim of interest in this land was barred thereby, when this suit was commenced on April 17, 1917. Where one tenant in common is in possession of land, it will be presumed, in the absence of evidence to the contrary, that he holds possession of same for the benefit of all. But, it is equally as well settled, that the tenant in possession may rebut such presumption, by showing that
he has acquired a good title by open, notorious, exclusive and adverse possession, under a claim of absolute ownership, etc. [Sec. 1879, R.S. 1909; Huntington R.E. Co. v. Megaree,280 Mo. 41, 217 S.W. l.c. 305; King v. Theis, 272 Mo. l.c. 422-3, 199 S.W. 183; Hart v. Eldred, 264 Mo. l.c. 151-2; Johnson v. Calvert, 260 Mo. l.c. 456-7, 169 S.W. 78.; Allen v. Morris, 244 Mo. l.c. 364: Hendricks v. Musgrove, 183 Mo. l.c. 309.]
V. Appellants, in their original brief, in speaking of Mary E. Crews, and discussing the Statute of Limitations say: "They do not admit, however, that her possession was hostile, or that she held adversely to them as remaindermen, or that theyReview of had notice, either actual or constructive, that herFindings. attitude was hostile or that she was claiming adverse ly to their title."
In the agreed statement of facts, it is stated: "That on said 18th day of September, 1882, the said Mary E. Crews entered into the possession of the said land, being the same land described in the petition, and from that day to the present time, said land has been in the open, notorious, exclusive possession of the said Mary E. Crews up to the date of her death, to which she claimed ownership, and thereafter the plaintiffs, her heirs at law, since her death. And that the said Mary E. Crews and the plaintiffs have paid all taxes lawfully due on said land since said date, and none of the defendants or any one under whom they claim or might claim have paid any taxes on said land, or begun any action for the recovery thereof prior to the filing of the separate answer of appellants in this cause."
It likewise appears from the agreed statement of facts that Perthana T. Miller and husband (father and mother of appellants) executed a warranty deed to Joseph C. Maupin, on January 10, 1882, in which they undertook to convey to him a fee simple title to the undivided one-fourth interest in said 105.30 acres. On
the same day, it is agreed, that Joseph C. Maupin and Mary E. Crews, made a voluntary partition of said land by interchange of warranty deeds, and that the 50.19 acres in controversy was thus conveyed to said Mary E. Crews. With the foregoing deeds on record, and Mary E. Crews being in possession of the land, it presented very strong evidence to appellants, upon the death of their mother in June, 1903, that Mrs. Crews was claiming the land in controversy as absolute owner thereof.
In the foregoing contention of appellants' counsel, they have apparently lost sight of the fact that this is an action at law, brought here without instructions, without any adverse ruling of the trial court as to the admission or rejection of evidence, and with the affirmative finding of the trial court, that, "on the 18th day of September, 1882, the said Mary E. Crews entered into the possession of the said land so allotted to her and continuously from said date held the exclusive, open, notorious and adverse possession of said land, claiming the title thereto absolutely in fee simple, and paying all taxes on the same to the date of her death, and that since said time the plaintiffs, as her heirs at law, have so held possession and paid taxes thereon, and that the plaintiffs are now the owners of said land in fee simple." The finding of the trial court, in respect to the above matter, is supported by substantial evidence and is conclusive, as to this court. [Mooneyham v. Mynatt, 222 S.W. (Mo.) 451; Cowan v. Young, 220 S.W. (Mo.) l.c. 872; Franke v. Franke, 213 S.W. (Mo.) l.c. 42; Bingham v. Edmonds, 210 S.W. (Mo.) 885, and cases cited.]
VI. Other questions are presented and argued by counsel for the respective parties, but, in view of what has already been said, it would serve no good purpose to extend thisConclusion. discussion further. The decree of the trial court, in favor of plaintiffs, is
fully sustained by substantial evidence, and we are well satisfied with the conclusions reached therein.
The judgment below is accordingly affirmed. White andMozely, CC., concur.