119 Mo. App. 63 | Mo. Ct. App. | 1906
This case involves the construction of the following will:
“I William S. Ellis, of the County of Pike and State of Missouri, being of sound mind, do make and publish this my last will and testament, revoking all others.
“I give, devise and bequeath all of my property, real and personal in manner following, to-wit:
*65 “1st. T desire and direct that all my just debts be paid, including necessary expenses that may be incurred after my death.
“2nd. I give and bequeath unto my beloved wife, C. V. Ellis, all my household goods on hand at my death.
“3rd. I give and bequeath unto my said wife one Half of all my personal property, except the above named household goods in lieu of dower.
“4th. I give and devise unto my said wife my home farm, consisting of two hundred and nineteen (219) acres, so long as she remains my widow; in the event of her death or her marriage, I direct that my real estate shall go, two-thirds (2-3) absolutely to my beloved son, John T. Ellis, and one-third (1-3) absolutely to my beloved grandson, William A. Ellis.
“5th. I give and bequeath unto my said son, John T. Ellis, one-third (1-3) of all my personal property other than household goods above disposed of.
“6th. I give and bequeath unto my said grandson, William A. Ellis, one-sixth (1-6) of all my personal property other than household goods above disposed of.
“7th. I appoint my said wife, C. V. Ellis, and my said son, John T. Ellis, now residing in said county of Pike, executrix and executor of this my last will and testament.
“In testimony whereof I have hereunto set my hand this fifth day of May, 1898.
“Wm. S. Ellis/’
The testator left an estate in personalty worth nearly four thousand dollars. 1-Iis widow, the plaintiff, applied for art allowance of |400 out of this personal estate, and her application is contested by the other legatees on the •ground that she has agreed to accept the testamentary provisions made for her Avhich are said to be inconsistent Avith her right to take the alloAvance.
The general rule of law is that a legatee must choose
Inasmuch as the intention of the testator to exclude' plaintiff from tbe allowance must appear in order to prevent her from talcing both the allowance and the bequests, she is entitled to both, unless the allowance is part of her dower and, therefore, excluded by tbe words excluding her dower. The testator undoubtedly intended to exclude plaintiff from dower if she accepted the will; but there is nothing in the will to show he intended to exclude her from any other estate which the law gave her, except dower. That this allowance of $400 is not dower, we regard as settled by several decisions of the Supreme Court and of this court, notwithstanding the fact that in other decisions, where the question was not material, the alloAvance was called dower.
In Bryant, Admr., v. McCune, 49 Mo. 546, it appeared that the deceased, Buford, had bequeathed to his Avife a large portion of his estate, both real and personal, to hold during her life. A part of the will is copied in a subsequent case involving it, and therein it will be seen the wife was given all the testator’s estate, both real and personal, for life, Avith an absolute power to dispose of one-half of it by will. Bryant, Admr. v. Christian, Admr., 58 Mo. 98. Shortly after the testator’s death, his Avife died. The litigation arose between the executors of Buford and Bryant as administrator of his Avife, concerning her right to take the allowances provided by sec. 33, et seq., chap. 121, General Statutes 1865 (Wagner’s Slat. chap. 88). Those sections are the same as sections 105 and following, of our present statutes, and compose that part of the administration law providing for the several statutory allowances to wid
In Hasenritter v. Hasenritter, 77 Mo. 162, the proceeding was for four hundred dollars and compensation in lieu of a year’s support. The defense was that the will made other provisions for the widow and .she had accepted them. The will gave the widow certain insurance and her dower in the testator’s real property according to law, and’ bequeathed the balance of the estate, real and personal, to his children. The contention was that he evidently intended all his personal estate of every kind, except his insurance money, to go to his children and, hence, intended to exclude his wife from the statutory provisions. This argument was rejected.
In Klosterman v. Langewisch, 6 Mo. App. 314, a deceased testator had made a specific bequest of money to his wife who afterwards died, and her administrator received the $400 allowed by the statute. The contention was that the bequest of money was in lieu of that allowance. In dealing with the proposition the court said that the statutory provision was often called the widow’s “absolute dower,” and that it partook of the nature of dower in being free from the claims of creditors and not subject to disposition by the husband’s will. The court then said that whether or not a bequest of personalty barred a widow’s right to absolute dower in her husband’s personalty, depended on whether the husband intended the bequest should be in lieu of the statutory provision; and as the provision of the statute was a clear legal right, an intention to exclude it must be demonstrated by express words, or clear implication. It was held that the will showed no such intention.
The judgment is affirmed.