Ross v. First Presbyterian Church

WALKER, P. J. This suit was commenced in the circuit court of Cedar County under the provisions of Section 2535, Revised Statutes 1909, to ascertain and determine title to the land described in the petition. The defendant the Presbyterian Church of Stockton answered denying that the plaintiff; or its co-defendants, the Wassons, had any interest in the land, and by cross petition alleged that under the will of one Hugh F. Ross it became the residuary legatee of said Ross and prayed that the court appoint a special trustee or master in chancery to sell the land and pay over the proceeds to the trustee of said church. The plaintiff answered this cross petition, alleging that the defendant Church took nothing by reason of or under the will of said Hugh F. Eoss and that plaintiff was the owner in fee of the land and prayed the court to so adjudge. The defendants Wasson answered denying that either the plaintiff or the Church had any interest in the land, and filed a cross petition setting up that they were the owners in fee of the land as the heirs of Hugh' F. Eoss and prayed the court to so adjudge. — 104 — Plaintiff answered the defendants Wassons’ cross-bill, denying that they had any title to or interest in the land in question as the heirs of said Hugh F. Ross or otherwise, and alleged title in fee in the plaintiff. The defendants Wasson denied the allegations' in plaintiff’s answer. The issues being made up. upon the cross petitions of the respective .defendants and the plaintiff’s answer thereto and the reply to such answer,' plaintiff dismissed as to his petition and the cause went to trial on. the issues thus made. On the application of the plaintiff a change.of venue was awarded to the circuit court of Polk County, resulting upon a trial in a finding for the defendants. The controversy involved: (1) the construction of the will of Hugh .F. Ross, (2) the legitimacy of Walter Ross as a son of Hugh F. Ross, and (3) the application of the Statute of Limitations. Hugh F. Ross is the common source of title. He died testate in February, 1860, seized of the land in controversy, which consisted of about 500 acres on Sac River. He left surviving him a widow but no issue. Two children born of this marriage had died in infancy. The clause of Hugh F. Ross’s will upon which the controversy herein is based is as follows: “That is to say, first, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as- follows, to-wit: To my well beloved wife, Caroline Ross,- the following described tract or parcel of land, to-wit [here the land in controversy is described as in plaintiff’s petition], containing five hundred and forty acres. Said tract or parcel of land being the farm on which I now reside, known as the Ross farm, to have and to hold the' same together with all the rents, profits and advantages of the same during her natural' lifetime; and after her death to be sold and the proceeds thereof to be applied to the erection of a house of worship in the town of Stockton, for the use and benefit of the Old School Presbyterian Church.” — 105 — After the death of Hugh F. Ross his wife continued to live on the land, and about May 31, 1861, gave birth to the plaintiff. Six years after the death of Hugh F. Ross his widow married one John F. Kennedy. Plaintiff lived on the land with his mother and step-father until 1877, when, upon his marriage, he took possession of about one-half of the land and cultivated same, and in 1888 erected a dwelling thereon which he and his wife continued to occupy and were in possession of at the trial of this cause in June, 1912. In March, 1900, his mother and her husband made and delivered to him a warranty deed to all of the land in controversy. Thereafter he made many permanent and valuable improvements thereon and continued ‘to occupy and use the land, exercising all the rights of ownership thereto. The mother-of plaintiff died in March, 1910. At the time of her death there was no Presbyterian church in the town of Stockton. The incorporation of a church organization of that faith was effected at Stockton on the 22nd day of March, 1904. The membership at and since that time has been small, no church edifice has been erected and the meetings have been irregular. There is no showing that prior to 1910 any organization styling itself the “Old School Presbyterian Church of Stockton” sent any representatives to a meeting of the Presbytery of that district. No formal steps have ever been taken by any church of the faith named to accept the trust created by- the will of said Hugh F. Ross. This is substantially all the evidence upon which the defendant Church bases its claim to the land in question. The defendants Wasson base their claim to the land upon a right of descent from their mother, who was a widow of John E. Ross, a brother of Hugh F. Ross, the common 'source of title. Hugh F. Ross left surviving him no one entitled by blood to inherit from him except the brother, John E. Ross, who survived him ten years and died in 1870. John E. Ross left no issue or others 'capable of inheriting by reason of consanguinity and — 106 — it is contended that under the statute his widow, who survived him, was the only person capable .of inheriting, and that her right to take became vested upon the death of her husband subject to the life estate of the widow of the testator. The widow of John E. Ross in April, 1874, intermarried with one John Wasson, by whom she had two sons, who survived her and who are the individual defendants here. The mother of these defendants died intestate in October, 1910, and her husband died in November, 1911. The court, upon the facts stated, found that the plaintiff had no interest in the land, and it having been shown from the admissions and agreements between said Church and the Wassons, defendants, that one-half of the net proceeds of the sale of said property and the net rents and income therefrom until the sale is effected is a proper and adequate sum to be devoted to the purpose of building a house of worship for said church, the court adjudges that the defendant church is entitled under the will of said Hugh F. Ross to have said land sold and conveyed under the direction and through the instrumentality of trustees named and the proceeds arising therefrom divided, one-half to the trustees of the said Church and the other half to the said defendants Wasson as tenants in common, share and share alike. Specific provisions are also made in this finding, not necessary to be set forth in a determination of the question here at issue, among others the naming of trustees to take charge of and account for the rents and profits arising from the land during the pendency of this appeal. The right of the plaintiff to claim title to the land as an heir at law of Hugh F. Ross is precluded by the death of the latter February 15, 1860, and the birth of the plaintiff May 31, 1861. [Gates v. Seibert, 157 Mo. l. c. 272; Martin v. Martin, 250 Mo. l. c. 545.] Nor can plaintiff’s claim of title as an heir at law of his mother, the widow of said Ross, be maintained. Under said Ross’s will she only took a life estate in the land; to — 107 — this limitation of her tenure she acquiesced by taking no steps to enlarge her interest into a fee to the one-half of said land as then and now authorized by statute (Sec. 5, chap. 56, R. S. 1855; Sec. 351, R. S. 1909). Upon her death, therefore, no inheritable estate was left to the plaintiff. This fact necessitates the conclusion that the deed made to this land in 1900 by the mother and step-father of plaintiff to him conveyed no such title as will enable the plaintiff to successfully assert an interest in such land at this time. Whatever estate was thereby conveyed was limited to the interest of the mother therein and terminated with her death. The nature of an estate by which land is held cannot be enlarged by a conveyance. A grantee cannot take more than the grantor has to convey. [Boothe v. Cheek, 253 Mo. 119; Potter v. Long, 217 Mo. 607; Turner v. Railroad, 130 Mo. App. 535.] As to the claim of title under the Statute of Limitations, plaintiff’s mother probated her husband’s, Hugh F. Ross’s will and qualified thereunder as executrix. In the absence of evidence to the contrary, and there is none, it must be presumed that she elected to take under the will, which created in her a life estate. Thus seized, she could not deal with the property in such a manner as to start the running of the Statute of Limitations adversely to the. rights of the remainder-man, who under the will is the residuary legatee. Her deed to plaintiff, therefore, could give him no greater right or claim to title than she possessed and his title, like hers, could only inure to the benefit of the remainderman. [McMurtry v. Fairley, 194 Mo. 502; Charles v. Pickens, 214 Mo. 212; Shoultz v. Lee, 260 Mo. l. c. 725.] The mother of plaintiff died in March, 1910, and whatever has been the nature of plaintiff’s holding of said land since that time, a sufficient period has not elapsed to sustain a claim of title under the statute. The plaintiff, who is the sole appellant, is the “party aggrieved” within the meaning of the statute .(Sec. 2038, R. S. 1909) and our review of this casé has — 108 — therefore been limited to a consideration of the errors of which he complains- Under this state of facts wé are not authorized to review the trial court’s ruling that, although the defendant Church is the' residuary legatee, the individual defendants are heirs and' hence entitled to half of the proceeds of the sale of the land. It will suffice to say that our affirmance of the judgment below is limited to the finding that the plaintiff is not entitled to recover. All concur; Williams, J., not sitting.