Bryan v. Rhoades

96 Mo. 485 | Mo. | 1888

Black, J.

-The plaintiff is the widow of Daniel M. Bryan, who died in November, 1877, leaving a number of children, some of whom are still minors. The first count of the petition sets out these facts, and then states that deceased and his family, at the time of his death, occupied and resided in a house situated on one-fourth of an acre of land in the unincorporated town of Novelty ; that in connection with this residence, he cultivated, used and occupied, as part of his homestead, forty acres of land, located two and one-half miles from the town; that she claims the house, lot and land as a homestead ; that in 1883, the administrator of her husband’s estate sold the land to defendant to pay debts of the estate, which were contracted after the purchase of the land ; she asks that the house, lot and land be set off to her as a homestead, alleging that the whole is of no greater value than twelve hundred dollars. The second, count sets out the marriage and death of her husband as before, and then states that he died seized of the forty acres of land : that dower has not been assigned to her, possession of the land by defendant and prays for the assignment of dower and damages for the detention thereof. No mention is made of the house and lot. The third count is an action of ejectment for the land, the forty acres.

Defendant’s demurrer for a misjoinder of causes of action being overruled, he moved to strike out the second count, which motion was overruled, and he declined to plead over. The court gave judgment for dower. After the approval of the commissioners’ report, defendant took this appeal.

By reference to section 2694 of the Revised Statutes, it will be seen that the amount of dower must be diminished by the amount of the widow’s interest in the homestead. If the widow’s interest in the homestead equals or exceeds, in amount, dower in the entire estate, then she can have no dower. If her interest in the homestead is less than dower in the entire estate, then she is to have the difference set off to her in dower. Graves v. Cochran, 68 Mo. 76. The homestead must first be set out. This is the plain letter of the statute. Until that is done and the widow’s interest therein valued, it cannot be told that she is entitled to dower. When her interest in the homestead is valued, and her dower in the entire estate is valued, if there is a difference in her favor, then the amount of that difference is to be set off to her in dower in property other than the homestead. The proceeding to set out the homestead and assign dower is but one cause of action. The two go together. The amount of dower is dependent upon her interest in the homestead.

Here the plaintiff seeks first to get house, lot and land for a homestead; failing in that, she seeks to get dower in the land, regardless of her homestead interest in the house and lot. This she cannot do. The motion to strike out should have been sustained. If the plaintiff claims both homestead and dower, then the first count can be framed with both of these objects in view. In no other way can the provisions of the law be carried into effect. Possibly she may be entitled to both land and house as a homestead, but upon this point we express no opinion, for the facts of the case are not-disclosed. Whatever her rights are, they can be adjusted in one cause of action.

The judgment is reversed and the cause remanded to be proceeded with in accordance with this opinion.

Ray-, J., absent;.the other judges concur.