Hopkins v. Cooper

KENNISH, P. J.

—This suit was instituted in the circuit court of Phelps'county for the purpose .of having partition made of lot number seventy of Railroad Addition to the city of Rolla. The plaintiffs were the minor heirs of Francis I. Hopkins, deceased, and the defendants were John W. Cooper and the-minor heirs of Margaret A. Hudgens, deceased. The court found that the plaintiffs were the owners of an undivided one-fifth interest in the land and' that the defendant Cooper was the owner of an undivided four-fifths interest; that said land could not be divided in kind without great depreciation in value and should be sold in order to make partition thereof. . Upon this finding judgment was rendered for the plaintiffs, ordering the sale of the land and the distribution of the proceeds of such sale according to the rights' and- interests of the parties as found by the court. From this judgment the heirs of Margaret A. Hudgens appealed to this court, but the defendant Cooper did not' appeal!

E. K. Light, at the time of his death .in May, 19D4; *464 was the owner of said lot”. He was the father of five children, namely, Joan Deskins, John "W. Light, Eva I. Yelton, Francis I. Hopkins, who died in January, 1899, and left surviving her seven children who are the plaintiffs in this suit, and Margaret A. Hudgens, now deceased, who left surviving her five children who are joined with John W.' Cooper as defendants.

By the terms of his last.will and testament which, prior to the trial of this cause, had been duly established and probated, said E. K. Light disposed of his property in the following language, to-wit :

“It is my will that all my estate, real, personal and mixed, of whatever kind or nature shall be equally divided among my five children, Francis I. Hopkins, Margaret A. Hudgens,. Joan Deskins, John W. Light, and Eva I. Light share and share alike after my decease with the following exception, to-wit:

“That my daughter Francis I. Hopkins at the time of my decease shall receive as her share of my estate the sum of one dollar if her husband James M. Hopkins shall be living at the time, but if her said husband James M. Hopkins be not living at the time of my decease, then it is my will that the said Francis I. Hopkins shall receive the one-fifth share of all my estate as her share, the same share as the other four children.! ’

The evidence showed that after the making of said will and before the death of the testator, Francis I. Hopkins died and that her husband, James M. Hopkins, was living at the time of the testator’s death.

The evidence also showed that after the death of E. K. Light, the defendant, John W. Cooper, purchased and acquired by deeds all of the right, title, interest and estate1 in and to said land of all of the heirs and devisees of said Light, except the interest, if any, owned by the plaintiffs. The interest of the minor heirs of said Margaret A. Hudgens, deceased, was. conveyed to Cooper by a deed from their guardian, made *465 pursuant to an order, of the probate court. No question was raised as to the regularity or validity of the proceedings had in the probate court in obtaining the order for the making of the deed, nor is the validity of the deed challenged on'any ground, nor do the heirs of said Margaret A. Hudgens claim any interest in the land. It was clearly established, by the undisputed evidence in the case, that if plaintiffs were excluded from any interest in the land by the provisions of the will of E. K. Light, then the defendant Cooper is the owner of the land in fee simple; and that if the plaintiffs, as found by the court, own an undivided one-fifth interest in the land, the defendant Cooper is the owner of the remaining four-fifths interest. In either event none of the other heirs of E. K. Light have any interest in the land.

Appellants contend that under the terms of said will, as controlled by the provisions of section 546, Revised Statutes of 1909', the plaintiffs were entitled to receive from the estate of E. K. Light the sum of one dollar only, the amount bequeathed to their mother by said will, and that the trial court erred in finding and adjudging that they were the owners of an undivided one-fifth interest in the land.

Respondents question the right of the appellants to have the judgment of the lower court reviewed by this court. Their contention is that since appellants neither have nor claim any interest in the land in controversy, and since the judgment of the trial court in no manner affected their rights, the judgment should be affirmed without considering the errors alleged by the appellants to have been committed by the lower court.

In our opinion the respondents are correct in their contention. The defendant Cooper, whose rights alone were affected by the judgment, did not appeal. The undisputed evidence shows that the defendant Cooper *466 is either the absolute owner of the'land, or that Cooper owns four-fifths and the plaintiffs one-fifth thereof. Since Cooper did not appeal from the judgment awarding- him four-fifths and the plaintiffs one-fifth of the proceeds of the sale of the land, we cannot see how appellants, who neither own nor claim any interest whatever in the land, can ask this court to revérse the judgment of the trial court because that court found and decreed that plaintiffs owned a one-fifth interest in the land instead of finding and decreeing that Cooper was the sole owner.

In Dixon v. Hunter, 204 Mo. l. c. 391, this court, speaking through Lamm, J., said: ‘‘‘It is fundamental that an appellant cannot complain of errors unless materially affecting the merits as against him.” Under’ the rule announced in that case it must be held that appellants cannot be heard to complain that the trial court committed error against the defendant Cooper,' in a matter that in no manner affected the merits as against them, and from which the defendant Cooper did not appeal.

It is suggested, however, that appellants are interested in obtaining from this court a construction of the will of said E. K. Light, deceased, for the reason that besides the land in controversy said Light, at the time of his death, was the owner of considerable personal property and that the interests of the appellants and the respondents in said personal property will be determined by the adjudication in this case of the respondents’ interest in said estate under the terms and provisions of the wall. But the question of the proper distribution of the personal property is not before us in this ease. The respondents have obtained a judgment awarding them- one-fifth of the proceeds of the sale of the land. From that judgment no appeal was taken by the defendant Cooper, the only party to the suit whosé rights -were affected by such judgment in favor of respondents. Under such circumstances *467 this court will not, upon the invitation of appellants who have no interest in the subject-matter of the suit, review the action of the lower court to ascertain whether error was committed against a defendant who did not appeal, merely for the purpose of construing a will and thereby furnishing a guide for the proper distribution of personal property belonging to the estate hut not involved in the cause before the court.-

Without passing upon the question of the extent to which the respondents are entitled to share in the estate of E. K. Light, under the provisions of the will, and for the sole reason that tbe judgment of the lower court in no manner affected the rights of the appellants, we hold that the judgment should be affirmed. It is so ordered.

Ferriss and Brown, JJ., concur.