9 Mo. App. 169 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is ejectment, brought by the curator of Annie and Minna Winkel, who are minors, against defendant, who is the lessee of Maurice Blume. The cause was tried by the court, a jury being waived. The finding and judgment were for defendant.
It appears that George Stephenson, who died in September, 1868, by his last will devised to his widow, Agnes, the house and lot on which he lived, in Florissant, to be held by her during life or widowhood, in case of her death or marriage the property to be sold by his executor, and the proceeds to be given to the Catholic Church in Florissant. His other property, consisting of real estate in Florissaut, was to be sold by the executor, and the proceeds given to the Catholic Church in Florissant. Samuel James qualified as executor under the will. The widow survived her husband only four months. She was
It is claimed by appellant that the devises in the will of George Stephenson, being in violation of sect. 13, Art. I., of the Constitution of 1865, were void, and that he died intestate ; that it appears that he left no father or mother, brother or sister, or their descendants ; and that his widow was his sole heir under the Statute of Descents, and that plaintiffs, therefore, were together entitled to one-third, or a child’s share, as heirs of their mother. It is further contended that, as homestead property, the house and lot in controversy went, on the death of George Stephenson, to his wife and her children in fee, and that plaintiffs are thus entitled to one-third. At any rate, it is held by appellants that Mrs. Stephenson’s claim of dower was good and that it vested in her a one-half interest in the property, and that plaintiffs are, as her heirs, entitled together to one-half of that third.
No instructions are preserved in the record as given or refused at the trial. What view the trial court may have taken of these theories of plaintiffs, we do not know. It
Under the law of descent the real estate of deceased went to the wife, if George Stephenson had no children or their descendants, father, mother, brother, or sister, or their descendants.- Wag. Stats. 529, sect. 1. We see no evidence whatever that Agnes Stephenson was the heir of her husband. Stephenson’s age when he died is variously estimated by the witnesses at from seventy to eighty-seven. He came from Virginia, and had lived for nearly half a century continuously in the Florissant Valley. No relative of his was examined, nor was there any testimony from any one who had ever known his family, or who knew anything whatever of his father and mother. Blume, a neighbor for five years, had never heard of brothers or sisters. Reiners, a step-daughter’s husband, never heard of brothers or sisters. The strongest testimony is that of the executor. He had known deceased for forty years. He says the nearest relative Stephenson ever told him of was a brother of his first wife, and the witness never heard of brothers or sisters of deceased. He never had any conversation with deceased on the subject of his family, or as to whether he had
So far as the claim of dower is concerned, we do not think that there is evidence from which it appears that the instrument purporting to be an election of dower by the widow was filed in the clerk’s office of the Probate Court within twelve months after the grant of letters, as the law prescribes. Rev. Stats., sect. 2194. It appears that this paper was filed in the office of the recorder of deeds- and recorded there, and that it was afterwards placed amongst the papers of the estate in the clerk’s office of the Probate Court; but there is no memorandum on the paper showing that it was filed there, or when it was filed; nor is there
When the husband dies seized of a fee in a homestead, under the provisions of our statute, if there are no minor children, the widow takes the estate absolutely, and on her death it goes to her' heirs. Plate v. Koehler, 8 Mo. App. 396. But the husband, by his will, left to the wife a life-estate in this property; and the statute provides that if the husband leave to his wife real estate bv will, it shall be in lieu of dower, unless otherwise expressed in the will. Wag. Stats. 541, sect. 15. As we have seen, she did not take the necessary legal steps to renounce , the provision made in the will. The plain intention of the will is that the devise should be in lieu of dower and homestead, and the doctrine of the election as to dower is held to apply also as
In the present case there was evidence tending to show that, during her lifetime, the widow agreed with the executor of her husband that the sale should be made in accordance with the provisions of the will; that the sale was made, after her death, in accordance with this express agreement and understanding had during her life ; that the representatives of some of her children were present at the sale and assented to it; that no objection was made by any person interested ; and that, as the result of a compromise arrangement between Mrs. Stephenson and the legal representatives of the testator, Mrs. Stephenson received one-half of the proceeds. How far the equitable defence was valid, and what room is given by the testimony for the application of the doctrine of equitable estoppel, so far as either or both of the plaintiffs are concerned, we need not examine. It is enough that there was no evidence in the case from which the trier of the fact was bound to find that plaintiffs were entitled to possession of any part of the premises in question at the time of the commencement of 'this action. As this is so, and no errors appear to have been committed to the prejudice of appellants, the judgment should be affirmed; and it is so .ordered: