Estate of Ferguson v. Gentry

206 Mo. 203 | Mo. | 1907

VALLIANT, P. J.

The facts of this ease are the same as those in Wilson J. Ferguson v. Bettie H. Gentry, supra, page 189, except that that was a suit for partition of the real estate and this concerns the final settlement and distribution of the personal estate of the intestate. . -

On final settlement in the probate court the surviving husband of the intestate was adjudged entitled to one-half the personal property belonging .to the wife at the time of her death under the terms of the Act of March 2, 1895, now section 2988,. Revised Statutes 1890, and also to the articles and property called for by section 111, of the chapter entitled “Administration. ’ ’ From the judgment of the probate court an appeal was taken to the circuit court, where judgment to the same effect was rendered and the distributees have brought the cause here by appeal.

The point is presented in this matter, as it was in Ferguson v. Gentry, above mentioned, that the Act of March 2, 1895, under which the husband was adjudged to be entitled to one-half the estate was unconstitutional. What we have said in the opinion in that case applies to this case so far as that point is involved.

As to the allowance made to the surviving husband under section 111, Revised Statutes 1899, the point advanced is that that section does not apply to this husband because there was never a child born to him and. his now deceased wife, therefore he had no curtesy in the land she owned, and that the provision of section 111 is conditioned on the husband’s having an estate by the curtesy. That section is in these words: “If a wife-■shall die intestate, owning personal property in her own-name, in addition to curtesy her widower shall be allowed to keep as his absolute property all the articles- ■and property, and be entitled to all the remedies and. reliefs as relates to the deceased wife’s property, as is-now provided for the widow in the deceased husband’s property, under and by virtue of sections 105, 106, 107 and 109 of said article and chapter.”

To give to this section the meaning that appellants would give it, we would have to interline an additional condition to the one therein expressed, that is to say,, we would make the section read thus: “If a wife shall die intestate,, owning personal property in her own name, in addition to curtesy her widower, if he hmecurtesy, shall be allowed to keep, ’ ’ etc. That would be a material amendment to the original. The statute as it stands in the book has but one condition; that is, “If' the wife shall die intestate, owning personal property-in her own name. ’ ’ Reading this section in connection-with section 105-we see that it was intended to place-the surviving husband in relation to his deceased wife’s personal estate, in the particular therein specified, in a like position to that of the surviving wife to her deceased husband’s personal estate in the same particular. Section 105, which confers the similar right on the wife, starts out with saying: “In addition to dower, the widow shall be allowed to keep,” etc. Section-111 íefers to section 105 and those following- relating to the same subject and expressly shows that its purpose is to confer on the husband rights corresponding to those conferred on the wife in those sections. It. can with no more reason be said that the right conferred on the husband was conditioned on his having an estate by the curtesy, which relates only to real estate, than that the similar right conferred on the wife was on condition that there should be real estate in which she would have dower. That the word dower in the first line of section 105 means dower in real estate is shown by section 108 which provides that the personal property allowed the widow in sections 105 and 106 is to be deducted from her dower in the personal estate. The reason no such terms as are imposed on the wife in section 108 are imposed on the husband in section 111 is that there is no right given the surviving husband in his deceased wife’s estate corresponding to what in section 108 is called her dower in the personal estate given her by section 2987, Revised Statutes 1899'.

It is argued that unless the words “in addition to curtesy” were intended to limit the right conferred to those having curtesy they have no meaning. Perhaps the words are unnecessary, since it is hardly probable that without those words it would be contended that the provision there made was to take the place of curtesy, but although the purpose of using them is not very clear and although it is a rule of construction that all the words used in a statute must be given a meaning and a purpose if it can be reasonably done, yet when the main purpose of the' statute appears it must not be defeated in order to give effect to words that seem useless or out of place. This statute was intended as we have already said to give the husband a like interest in his deceased wife’s estate that she would have in his estate if she had been the survivor, and to make that purpose very clear the writer of the statute doubtless followed the phraseology of section 105, interchanging words as required, writing widower in one where widow was in the other and curtesy where dower.

We hold that the term “in addition to curtesy” in section 111 does not mean that the right therein given the surviving husband is conditioned on his having curtesy; if he have curtesy this is given him in addition, if he have not curtesy it is given him any way.

The judgment is affirmed.

All concur, except Lamm, J., not sitting, having been of counsel.