Dudley v. Davenport

85 Mo. 462 | Mo. | 1885

Norton, J.

Doctor Barnett Dudley died seized of no real estate, but of personal property worth about $1200. His widow, Melvina Dudley, the appellant Lerein, applied within the time limited by law for her 'dower in said personal property, and for a reasonable .allowance for one year’s support. Her application was refused by the probate court, from which decision of the probate court the said widow appealed to the circuit ■court of Cass county, and her application being there also refused she appealed to this, court.

The record shows that to defeat plaintiff’s claim, •defendant offered evidence tending to show that a short time before the death of her husband, he sold an eighty acre tract of land for the price of $1200, and that plaintiff refused to relinquish her dower therein unless she received three hundred and twenty-five dollars, that .upon receipt of this amount she signed and acknowledged the deed. A deed from said Dudley to plaintiff, conveying to her about thirty acres of land, was also put in evidence, and parol evidence was received showing that she sold this land for three hundred dollars, and tending to .show that she admitted that the conveyance was made to her for all claim to dower in her husband’s estate. All ibis evidence was received over the objection of- plaintiff. We are of the opinion that under the ruling of this court in the case of Perry v. Perryman, 19 Mo. 469, where it was held that under the thirteenth section of the act •concerning dower (Rev. Code, 1845, which section corresponds with section 2202, Revised Statutes), a settlement, whether ante-nuptial or post-nuptial, to be a bar to •dower, must be expressed on its face to be in discharge of dower, and that the plaintiff’s objection to the evidence was well taken, and that the court erred in overruling it, and in receiving the evidence, there being nothing on the face of the deed showing that the land was conveyed in discharge of dower, and which omission • could not be supplied by parol.

Unde the plain reading of sections 106, 107, 108, .and 109, Revised Statutes, and under the construction put upon them in the cases of Cummings v. Cummings, 51 Mo. 261, and Bryant v. McCune, 49 Mo. 546, the plaintiff was entitled to recover, and the orders asked for should have been made, holding her to account for the personal property, viz.: two mares, a colt,, and wagon, which the record before us shows she took at the appraised value.

, Judgment reversed and cause remanded.

All concur.