Bonnell v. Pack

ELLISON, J.

statement. P. P. Robertson, at his death in 1887, owned a tract of land in Platte county. He left a number of heirs besides his widow. He made the following provisions by will:

“Second: — I will and bequeath to my wife, Lydia Gr. Robertson, all my real and personal property of every kind and character, and wheresoever situated, to use and enjoy during her natural life, or widowhood, subjeet to the support of my daughter Ella E. Robertson, so long _ as my said daughter remains single and unmarried. And I will that my wife may sell and dispose of any of the property bequeathed to her, in case it may be necessary for her to do so for the support of herself or my said daughter.

“Third: — At the death or remarriage of my said wife, I desire that all my estate remaining undisposed of by my wife, be sold, and out of the proceeds, I desire that my daughter, Ella E. Robertson, be paid the sum of three hundred dollars, provided she is then single and unmarried.

“Fourth: — The remainder of my estate, I desire stall be equally divided between my children.” (Naming them and including Ella.)

Defendant Pack was appointed. guardian for the widow and was also appointed trustee for Ella E. Robertson. The widow died in January, 1897. Pack rented the land year by year, the last renting being for the year beginning March 1, 1897, to March 1, 1898, at the sum of $700, represented by two notes of $350 each, one of which was paid to him, the other being here in controversy. After the death of the widow, a partition suit was instituted, the heirs, including Ella, being made parties. Judgment of partition was rendered, the land ordered sold and was sold in August, 1897, the plaintiff becoming the purchaser. Plaintiff exhibited his deed to the tenant and demanded that the remaining rent note should be paid to him. The tenant refused on the ground that he understood the defendant Pack claimed that it should be paid to him. Plaintiff then instituted this action against the tenant and Pack. The tenant paid the money into court and was discharged. The trial court allowed the greater part of the note to Pack in his trusteeship and plaintiff has appealed.

Partition: right to rents after sale-The law is that the purchaser at partition sale of lands which are rented becomes entitled to the rents accruing after such sale. Winfrey v. Work, 75 Mo. 75; Stevenson V. Hancock, 72 Mo. 612: Zeysing v. Welbourn, 42 Mo. App. 352; Smith v. Ande, 46 Mo. App. 634. The judgment in this cause was, therefore, wrong unless it can be supported by the considerations which have been suggested by defendant, viz.: After the partition sale defend- • ant made settlement of his trusteeship with the circuit court, which found that there was due defendant as trustee $228, as unpaid balance of the annual allowance made for support of Ella E. Eobertson; that the court ordered him to pay over to said Ella said unpaid balance out of any money in his hands, or out of any rent notes; that $50 was allowed by the court as compensation for defendant’s services as trustee.

estoppel: res acta inter aiios. Defendant supports this disposition of his settlement by showing that in an action in the circuit court wherein Ella E. Robertson was plaintiff and Lydia G-. Robertson and O. Thorp were defendants, it was found by the court that the widow, Lydia, had ]3eco.me insane and was under the guardian- * ship of Thorp; that the will of P. P. Roberts.on provided for the support of said Lydia during her life and of said Ella as long as she was single and unmarried; that Lydia was unable to carry out the will and this defendant Pack was thereupon appointed trustee to take charge of the lands in question and apply the income to the support of said Lydia and Ella.

This action taken by the circuit cburt could have no binding effect upon any one save the parties to the action, which were Ella and Thorp, her mother’s guardian.

Rents: support of daughter: construction of will. The construction of the will as it appears from the judgment in that case was that Ella was to be supported by the income of the property as long as she remained unmarried. The will does not however bear such construction. The support of Ella out of the estate was clearly intended to cease at her mother’s death. Eor on the happening of that contingency, the estate, undisposed of, was directed to be sold and $300 ' of the proceeds given to Ella, if she was still unmarried. And the remainder was to be divided between the heirs, mdudmg Ella. So therefore the mother having died in January, 1897, Ella’s support should have ceased then, or at least, so soon as the provisions of the will directing a sale and division could be carried out. Ella herself, who is sui juris, and the defendant Pack seem to have so regarded the will. Eor she, as a party to the partition suit, acquiesced in the sale of the lands; and he made the settlement above mentioned in which he claimed there was due for Ella’s support up to the partition sale the sum of $178. In the judgment itself it -is stated to be $228, but this will not affect tbe matter for decision.

So the case, as thus disclosed, makes it necessary to decide whether it was within the rightful authority of the circuit court to appropriate to Ella’s support the income of the estate accruing after her right to support had ceased. We think clearly this could not be done. The rent which was due for that portion of the time of the tenancy running after the sale in partition, being an income of the estate after Ella’s right to support, under the will, had ceased, it naturally follows that neither she nor her trustee are entitled to it. So that even if this plaintiff was not entitled to such sum as purchaser, it would yet not belong to Ella except the right to share in it with the other heirs. So neither is defendant Pack entitled to any portion of the proceeds of the note as compensation for his trusteeship. Such proceeds being for rents accruing after the trusteeship had ceased, do not belong to a fund on which he has any right or claim.

We will reverse the judgment and remand the cause with directions to enter judgment for plaintiff for the, money paid in by the tenant.

All concur.