Rutledge v. First Presbyterian Church , 278 Mo. 326 ( 1919 )

SMALL, C.

This is a suit to quiet title commenced in the Circuit Court of Cedar County. There is no controversy about the facts. Both plaintiffs and defendants claim through Hugh Ross and John Ross as the common source of title. Hugh Ross owned the property in his lifetime. He was married, but never had,any children. At his death in 1860, he left surviving him his wife, Caroline Ross, and his brother John Ross. By his will he devised a life estate in the property to his wife and directed that after her death the land should be sold and the proceeds 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. ’ ’

Caroline Ross elected to take the provisions made by her husband’s will. She remained in possession of the property until 1910, the time of her death. John Ross was the sole heir of his brother Hugh, and upon the latter’s death inherited the property, subject to the life estate of Caroline Ross and the right of'the defendant church, created by the will of said Hugh Ross. Prior to the institution of this suit John Ross died intestate. He left surviving him, his widow, Jane Ross, but no children or their descendants, and no father, mother, brother or sister or their descendants. '

Jane Ross subsequently married John Wasson, and the defendants Omar Wasson and Wallace Wasson are the children of that marriage. Said defendants claim that their mother, as the widow of said John Ross, inherited the property from him, and that they, on her death, inherited it from her and are the owners of it, subject to the rights of the defendant Presbyterian Church, under the will of Hugh Ross, and the decree in certain prior litigation which was affirmed by this court in the case of Ross v. Presbyterian Church, 272 Mo. 96.

There is no controversy between the defendants themselves, but they deny that the plaintiffs have any interest in the property. The plaintiffs were not parties to said prior litigation and it is not claimed to affect their rights. They claim to own the property as the descendants of Mrs. Rutledge, who was the sister of the mother and, therefore, an aunt of said John Ross.

The court below found against plaintiffs and for defendants, and plaintiffs brought the case here by appeal.

• Policy I. The circuit court correctly decided the case. The statute governing the course of the descent and distribution of real estate (Sec. 332, R. S. 1909) provides as follows: “Third: If there be no children or their descendants, father, mother, brother or sister, nor their descendants, then to the husband or wife; if there be no husband or wife, then to the grandfather, grandmother, uncles and aunts and their descendants in equal parts.”

The plaintiffs in their brief admit that if this statute is valid, the plaintiffs have no title as against the defendants Wasson, because said defendants are the descendants of the surviving wife of John Ross, and the plaintiffs are descendants of an aunt of said .Ross, and by the plain words of the statute, therefore, said defendants took the title by inheritance from said John Ross, and the plaintiffs have no interest therein.

But the plaintiffs suggest that the statute is unconstitutional or void as against public policy, because it allows property to descend to persons not of the blood of the ancestor, in preference to those of his blood. This contention is untenable. No provision of the Constitution is pointed out nor referred to as conflicting with this statute, and we know of none such.

This subject was carefully considered in the recent case of State ex rel. v. Guinotte, 275 Mo. 298, where it is said, by Craves, J., in delivering the opinion of Court in Banc (1. c. 314): “So that under the great weight of authority we rule: (1) That the taking of property by inheritance or will is not an absolute or natural right, but one created by the laws of the sovereign power.. This court has so said (State ex rel. v. Henderson, 160- Mo. 1. c. 216) . . . (3) That this right of the State to foreclose absolutely, or partially, the right to inherit by law or will, ... is inherent in its sovereignty, which allows the" State or the Nation to say what shall be done with the property owned by the citizen at the time of his cieatu. No provision of the Missouri. Constitution stays the free hand of our lawmakers as to the disposition of property owned by a citizen at the time of his death.” .

To the same effect is the language of Bond, J., in his opinion in Maguire v. University, 271 Mo. 359, where he said at page 367: “Both the cases heretofore cited in this opinion and correct reasoning deduce the existence of this right [to impose inheritance taxes] in a sovereignty from'the fact that the power of succession in such cases depends upon statutes affording that privilege to the claimant, and this being in the full discretion of the enacting. body is subject to any terms which it sees fit to impose.”

As to the contention of the plaintiffs that the statute is void because against public policy, it is sufficient to say that acts of the Legislature are not void because they violate public policy, unless that policy is imbedded in some provision of the State or Federal Constitution and the public policy of the State on any given subject is found in the provisions of the Constitution • and acts of the Legislature in harmony therewith relating to that subject. In this case the public policy of the State as to the right of inheritance is found in the Statute of Descents and Distribution above quoted. That statute does not conflict with any constitutional provision and is valid. The circuit court committed no error in following it.

II. Plaintiffs also* attack the validity of' the provisions of the will of Hugh Ross in favor of the Presbyterian Church, but inasmuch as plaintiffs have no interest in the land in controversy, they have no interest in that question and cannot invoke the action of this court thereon. [Wheeler v. Land Co., 193. Mo. 291.]

The judgment of the circuit court should be affirmed, and it so ordered.

Brown and Ragland, GG., concur.

PER CHRIAM:

The foregoing opinion of Small, C., is adopted as the opinion of the court;

Blair, G. J., and Bond and Graves, JJ., concur; Woodson, J., absent.