Davidson v. Davis
86 Mo. 440
Mo.
1885
Check Treatment
Henry, C. J.

— Plаintiffs instituted this suit in the Livingston circuit court, asking to have a homestead set apart to them as heirs оf Mahala Rossin, ‍‌‌‌‌‌​‌‌​​​​‌‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​​​‌​​​‌‌‌​‌​‌‍who, they allege, died seized of the same. The defendant had a judgment, and рlaintiffs have brought the case here on writ of error.

Charles Rossin, the husband of Mahala, died in *4431874, having by will cWvvised to his said wife eighty acres оf land in fee, and a life estate in one hundred acres additional, and bequeathed to hеr all his personal estate. To others he devised other tracts of land which,with that devised to his wife, constituted his farm. TTis wife he appointed executrix of his will, which was probated in 1874. Mrs. Rossn qualifiеd ‍‌‌‌‌‌​‌‌​​​​‌‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​​​‌​​​‌‌‌​‌​‌‍as executrix immediately after the probate of the will, but died in 1875, about one year aftеr the death of her husband, having continued her residence on the-premises in controversy, where she and her husband had lived for many years, They were childless, and the plaintiffs are Mrs. Rossin’s heirs at law. After her death, Albert Stephens was appointed administrator de bonis non of her husband’s estate, and, pursuant to an order of the probate court of Livingston county, made-in July, 1877, sold said land for payment of debts, and John T. Moss purchased, and received the administrator’s deed for the sаme. The order of sale and sale-were regular ‍‌‌‌‌‌​‌‌​​​​‌‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​​​‌​​​‌‌‌​‌​‌‍in all respects, and there is no cоntroversy as to their validity, if Mrs. Rossin had no homestead right in the premises. The law in force when Charles Rossin died gave a widow a fee in a homestead, and such was Mrs. Rossin’s estate, if she had a homestead right at all.

The defendants claim under Moss. After the death of her husband, Mrs. Rossin qualified and аcted as executrix of his last will,- and was administering the estate under the will when she died. She repеatedly expressed herself as satisfied with the provisions of the will. She took all of the pеrsonal estate of the testator under ‍‌‌‌‌‌​‌‌​​​​‌‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​​​‌​​​‌‌‌​‌​‌‍the will, a provision different from and greater than thаt made for her by the dower act. There was, it is true, no formal acceptance by hеr of the provisions of the will; neither did she do or say anything indicative of a purpose to renounce them and claim her homestead. She died without having in any manner repudiated the *444will; but, on the contrary, from the date of its probate to her death, was administering the estate undеr the will. Plaintiffs, however, ‍‌‌‌‌‌​‌‌​​​​‌‌​​‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​​​‌​​​‌‌‌​‌​‌‍are endeavoring in her stead to renounce the provisions of thе will, but the right of election is not transmissible by descent. Welch v. Anderson, 28 Mo. 298.

She could not take the devise and bequest under the will, and, at the same time, insist upon her homestead right. The right under the will, and that confirmed by the homestead law, were repugnant to each other, and she had to repudiate the onе or the other. There is no provision in the homestead law prescribing a formal eleсtion or repudiation, similar to those to be found in the law concerning dower and jointure; but, after the death of her husband, the widow is sui juris, and her conduct in relation to her property is treated precisely as that of any other person. There was no one living, except hеrself, who had any interest in her homestead. She had no children, nor had her husband any. The law gavе her the homestead, but she had a perfect right to dispose of it. If, by his will, her husband gave her a diffеrent estate in the land from that which the law gave her, she had a perfect right to accept it in lieu of the homestead. No time is specified within which she should make her election, and she could make it immediately. Nor is any particular manner of making the election prescribed. Accepting the bequest under the will, qualifying and acting as executrix of the will, and reрeatedly expressing her satisfaction with its provisions in her behalf, are sufficient to prove her acceptance of these ■provisions, certainly against her heirs. For, even conceding that the above recited acts would not have precluded her from withdrawing such acceptance and asserting her right to a homestead, if she had lived, yet, her аcceptance of the provisions of the will cannot be withdrawn by her heirs. It is not a right transmissiblе by descent. The status of her homestead right is the *445same as at ber death. Besides, the plaintiffs аll lived in the neighborhood. Some of them were present at the sale of the land by the administrator, and several of them bid for the land at the sale, and none of them made an announсement of their claim when it was sold. Mrs. Rossin died in 1875 and this suit was not commenced until September, 1879, and plaintiffs never before, so fai as disclosed by this record, laid claim to the land. The defendаnts purchased without notice of any claim of plaintiffs, and have made valuable, lasting improvements upon the land.

We think that both the law and equity of the case lie with the defendants, and affirm the judgment.

AD concur.