Home/Supreme Court of Missouri/McMahan v. Hubbard

McMahan v. Hubbard

118 S.W. 481, 217 Mo. 624, 1909 Mo. LEXIS 297
CourtSupreme Court of Missouri
DecidedMarch 30, 1909
StatusPublished
Cited by27 cases

This text of 118 S.W. 481 (McMahan v. Hubbard) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMahan v. Hubbard, 118 S.W. 481, 217 Mo. 624, 1909 Mo. LEXIS 297 (Mo. 1909).

Opinion

GANTT, P. J.

This action was commenced in the circuit court of Newton county to determine the title to certain lands in said county. The plaintiffs claimed title to the lands in controversy under, and by virtue of items three and eleven of the last will and testament of John McMahan, deceased, who is the common source of title, and the first section of the codicil to said will.

The said provisions of the will are in these words:

“3. In order that my wife, my daughter Leah and my adopted son William McMahan, may have ample support, I give and bequeath unto them, the following described land, viz: Seven acres, part of the southwest quarter of the southeast quarter, also the northwest quarter of southeast quarter, also the east one-half of the southwest quarter and that part of the west one-half of the southwest quarter lying east of the present fence running on the east side of said tract; also the twenty-three acres,»being part of the [633]*633northeast quarter of the northwest quarter of section 33, all the above land in township 25 of range 31.
‘ ‘II. All the property herein bequeathed shall descend to the heirs of the bodies of those to whom it is bequeathed, provided said heirs are born in lawful wedlock and should any of my legatees die without heirs of their body as above stated, then all the property bequeathed to them shall descend to my legal heirs.”

Codicil: “In explanation of section 3, where the bequeath is to my wife and daughter Leah and adopted son William McMahan, at the death of my wife, the real estate herein mentioned is to descend to my daughter Leah and William McMahan (adopted son).”

The plaintiffs, who are the wife and child of William McMahan, deceased, alleged in their petition that the land intended to be described and conveyed by the third clause of the said will to the testator’s wife, daughter Leah, and adopted son, William Mc-Mahan, is the land in controversy herein, and that by mistake the scrivener in writing the will failed to designate that all of- said land described in said third item of the will is in section 28, except the last described tract of twenty-three acres, which is properly described as being in section 33. The defendants in their answer allege that the said John McMahan made no disposition in his last will of the part of the land in controversy, which is located in section 28; that as to this land, he died intestate. The defendants also said in their answer that all the bequests and gifts made to the said William McMahan by the said will were made upon the following terms and conditions set forth in the seventh item of said will in the following language, viz: “7. All the bequests made to him are conditioned that he remain with his adopted mother until he is twenty-one years of age and behaves himself toward her as a dutiful son.” And it is asserted that the said William McMahan failed and refused [634]*634to comply with the said terms or provisions of said will and by his conduct and action forfeited any and all bequests under the terms and provisions of said will.

The cause was tried in the circuit court of Newton county, and at the trial it was agreed that John McMahan died on the — day of --, 1888, and that he left surviving him his. widow, Elizabeth McMahan, who died on the 29th of July, 1904; that he also left surviving him as his only heirs at law J. Raphael Mc-Mahan, who is a son by a former marriage, his daughter Leah McMahan, now Leah G-oin, and his daughter Nannie E. Hubbard; that William McMahan mentioned in the will as his adopted son died on or about the 25th of December, 1901, leaving as his heirs his widow Dora McMahan and his children, Logan, Floyd, Noble and Duard McMahan, all plaintiffs herein. That the defendant Commodore Thomas is the only child of Leah Groin. The evidence on the part of the plaintiff tended to show that the testator John McMahan at the time he executed his will and at the time of his death and for many years prior thereto, owned the land in suit in section 28, township 25, range 31, and at the time of the execution of his will, nor any other time, did he own any land in section 33 except the twenty-three-acre tract described in said will as being a part of the northeast quarter of the northwest quarter of section 33 and the forty-acre tract west of said twenty-three acres, which he devised to his son J. R. McMahan in the ninth item of the will. The evidence also tended to show that if section 33 should be held to be a part of the description of all the land described •in item three of the will then all of it except the twenty-three-acre tract was at the time the said will was •executed and at the time of the death of the testator owned by T. B. Durham and James Hubbard. • A plat of section 33 and of a part of section 28 will accompany this opinion.

[635]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Massachusetts General Life Insurance Co. v. Sellers
835 S.W.2d 475 (Missouri Court of Appeals, 1992)
Brown v. Adams
715 S.W.2d 940 (Missouri Court of Appeals, 1986)
St. Louis Union Trust Co. v. Bethesda General Hospital
446 S.W.2d 823 (Supreme Court of Missouri, 1969)
Bollenger v. Bray
411 S.W.2d 65 (Supreme Court of Missouri, 1967)
First National Bank of Joplin v. Solomon
412 S.W.2d 458 (Supreme Court of Missouri, 1967)
Seltzer v. Schroeder
409 S.W.2d 777 (Missouri Court of Appeals, 1966)
Stuesse v. Stuesse
377 S.W.2d 389 (Supreme Court of Missouri, 1964)
Schubel v. Bonacker
331 S.W.2d 552 (Supreme Court of Missouri, 1960)
Ussher v. Mercantile Trust Co.
328 S.W.2d 699 (Supreme Court of Missouri, 1959)
Baker v. Wright
60 So. 2d 825 (Supreme Court of Alabama, 1952)
Friesz v. Friesz.
127 S.W.2d 714 (Supreme Court of Missouri, 1939)
Eberlin v. Brunner
123 S.W.2d 543 (Missouri Court of Appeals, 1939)
Burrier v. Jones
92 S.W.2d 885 (Supreme Court of Missouri, 1936)
Cravens v. Cravens
61 S.W.2d 739 (Supreme Court of Missouri, 1933)
Spotts v. Spotts
55 S.W.2d 977 (Supreme Court of Missouri, 1932)
Hyde v. Hopkins
296 S.W. 382 (Supreme Court of Missouri, 1927)
Wiechert v. Wiechert
294 S.W. 721 (Supreme Court of Missouri, 1927)
Mockbee v. Grooms
254 S.W. 170 (Supreme Court of Missouri, 1923)
Andre v. Andre
232 S.W. 153 (Supreme Court of Missouri, 1921)
Bernero v. St. Louis Union Trust Co.
230 S.W. 620 (Supreme Court of Missouri, 1921)

Cite This Page — Counsel Stack

Bluebook (online)
118 S.W. 481, 217 Mo. 624, 1909 Mo. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmahan-v-hubbard-mo-1909.