99 Mo. 543 | Mo. | 1889
Lead Opinion
Naden Giles died in 1872, leaving a will as follows: “First, after all my lawful debts are paid and discharged, the remainder of my estate, real and personal, I give to my wife, Susan Jane Giles, as long as she remains my widow, to dispose of any portion of the estate for her support if necessary. I also constitute my said wife my lawful executrix, to sell and dispose of any property, personal and real, and pay off all lawful debts I owe. And, if there be any property left after her. death, it shall be divided among my children.”
Plaintiffs are his children. Defendant was his widow. In 1875 she married Bowles.
After defendant’s marriage this action of ejectment was brought. The land in question was bought by Giles and partly paid for during his lifetime. He resided on it with the defendant at the time he died and for several months before.
The deed to him as grantee was delivered to defendant after his death. As both parties claim through him as owner, there will be no need to consider any other question of title, on the facts disclosed, than that hereinafter discussed.
For the purposes of this case, the land must be regarded as the homestead of deceased. It was within the legal limits regarding value and extent, and was all the realty he owned.' He left some personal property.
Defendant, while his widow, took possession of all this property, had the will probated and paid off a number of his debts. In so doing she probably intended to act under the will, but, after her marriage to Mr. Bowles, she claimed the land by virtue of the homestead law. That is her claim now.
The law in force when Giles died controls the rights of these parties. Under it the widow would take the same estate owned by the deceased in the homestead, his children being adults when this action was begun.
Plaintiff’s counsel contend that, as defendant acted under the will, she must be deemed to have elected the estate thereby created and hence could not take under the homestead law adversely to that estate.
Had she received any greater estate (real or personal) under the will than that which she would otherwise'have been entitled to claim under the homestead and administration law, it would be necessary to meet and deoide that question.
But the doctrine of election can have no application where the property received is not greater than the party would have the right to take under the law without reference to any will. Plaintiffs did not establish in this case that it was greater. Without such showing the homestead, the subject of this action, must be regarded as vested absolutely in defendant from Giles’ death (Wag. Stat., p. 698, sec. 5), as well as his personal property to the extent defined by the administration law then in force. (Wag. Stat., p. 88, secs. 33, 35 ; Cummings v. Cummings (1873), 51 Mo. 261; Hastings v. Myers’ Adm’r (1855), 21 Mo. 519.)
If there was no property on which the will would operate, as against the widow’s absolute statutory rights, there' would be no consideration for an election by her and the reason on which the doctrine of election rests would fail. No formal renunciation of the will would be necessary in such case to confirm her title to the property which the law itself gave her. (Hasenritter v. Hasenritter, Ex’r, 77 Mo. 162.)
The result reached in the trial court was not in harmony with these views, so we all agree to reverse the judgment and remand the cause.
Rehearing
On Rehearing.
During the consideration of this motion it has become apparent that the question whether
The subject was fully considered by this court in Davidson v. Davis (1885), 86 Mo. 440. It was then held that, where a widow accepted, under the will of her deceased husband, property (whether real or personal) greater in amount than that to which she would otherwise have been entitled by law, she could not then insist upon her. homestead right if repugnant to the terms of the will.
That decision interpreted the same statute (Wag. Stat., p. 698, sec. 5) applicable in the present controversy. Its ruling that the doctrine of election then applied to homestead estates we approve, adding the following observations: The section in question was transplanted from the laws of Vermont. We have held that we adopted with it the interpretation that had been previously given it in that state (Skouten v. Wood, 57 Mo. 380). We find on investigation that the precise point- now under consideration arose there in Meech v. Est. of Meech, 37 Vt. 414, and substantially the same ruling was then made that has since been declared here in Davidson v. Davis, 86 Mo. 440.
The section in question was amended in 1875 (Sess. Acts, 1875, p. 60, sec. 1) into the form it now presents. (R. S. 1889, sec. 5440.) Under it (1887) the case of Kaes v. Gross, 92 Mo. 647, originated. In that opinion it was inadvertently assumed that Davidson v. Davis, 86 Mo. 440, arose under the present statute, whereas we find, on further examination, that the provisions of law applicable to the two cases were different, Davidson v. Davis, being governed, as is the case at bar, by the section as it stood prior to the amendment of 1875. Kaes v. Gross,
Whether the facts of the present case bring it within the control of the doctrine referred to cannot be satisfactorily determined from the record now before us.
We hence adhere to the order for reversal and remandment, and overrule the motion for rehearing,
