147 S.W.2d 429 | Mo. | 1941
Lead Opinion
Lovie Barker instituted this action to determine and quiet title to Lot Seven, Block Two, Hill's Addition, Chillicothe, *267 Livingston County, Missouri. The judgment determined title under the Statutes of Limitation to be in Lovie Barker. Daisy Hayes, the defendant, appealed.
The case was submitted on an agreed statement of facts. We state the substance of all that is essential. Mathew Spears is the common source of title. Prior to the Civil War, he and Harriett ____, both being slaves, were married according to the usage for the marriage of slaves, and Daisy Hayes, the defendant, is the only surviving descendant, a granddaughter of said Mathew and Harriett. Mathew Spears escaped from his master's plantation, joined the Union Army and, after the close of the war, never returned to his slave wife, Harriett. He acquired title to the real estate in question December 9, 1867. He married Henrietta Spears February 3, 1872. No children were born of this union. They occupied the property as their homestead. Mathew Spears died testate in September, 1894. His will, dated March 4, 1891, and duly probated October 26, 1894, devised and bequeathed "to my beloved wife, Henrietta Spears, all of my property, both real, personal and mixed, to have and to hold same absolutely." Henrietta Spears never renounced her husband's will and lived on the property "as her home . . . until her death" on May 21, 1934. Her will, duly probated May 22, 1934, devised her residuary estate, including the real estate involved, to plaintiff, widow of her only son John L. Barker. Mathew Spears died intestate as to Daisy Hayes, no mention being made in his will of any descendant barring her rights in his estate.
Defendant says (citing, among others, the authorities mentioned) that Henrietta Spears was the lawful widow of Mathew Spears, he never having lived with his slave wife, Harriett, after his emancipation (Johnson v. Johnson,
[1] Under the provisions of Section 8877, Revised Statutes 1889 (now Sec. 525, R.S. 1929, Mo. Stat. Ann., p. 318), a testator is "deemed to die intestate" as to any pretermitted child or descendant of a deceased child, and such pretermitted child or descendant of a deceased child "shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part." The statute provides protection for the rights of a pretermitted heir without striking down the will except pro tanto. [Story v. Story,
[2] Under defendant's position, the rights and titles of pretermitted descendants vest upon the death of a father (Schneider v. Koester, supra; Vantine v. Butler,
The judgment is affirmed. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.