Gentry v. Gentry
26 S.W. 1090
Mo.
1894
Check Treatment
Sherwood, J.

I. Section 4533, Revised Statutes, 1889, provides that: “Until dower be assigned, the widow may remain in and enjoy the mansion house of her husband, and the messuages or plantation thereto belonging, without being liable to pay any rent for the same.”

This, in substance, has long been the law, and as the section now stands it has stood for nearly sixty years. R. S. 1835, p. 229, sec. 15. Ever since the case of Stokes v. McAllister, 2 Mo. 163, the widow’s right of quarantine coupled with the reception of the entire rents during the period mentioned in the statute, has been recognized. Ousted of her possessions, she may maintain ejectment against the intruder. Stokes v. McAllister, supra; Miller v. Talley, 48 Mo. 503. She may assign her right to her quarantine to another, who thereupon may successfully resist ejectment brought by the heir. Jones v. Manly, 58 Mo. 559.

Of course the widow’s right to her quarantine and all its incidents of rents and profits is necessarily exclusive; it can neither be halved, quartered, nor in any manner subdivided. She is entitled to the whole rent as the result of being the undisputed possessor of the whole land. Orrick v. Robbins’ Adm’r, 34 Mo. 226; Roberts v. Nelson, 86 Mo. 21.

*217II. Nor does it matter that the mansion house was located on land in which Gentry, had only a life estate; this fact does not militate against a widow’s right of quarantine in that portion of the land owned by the husband in fee. In Agan v. Shannon, 103 Mo. 661, it was distinctly recognized as an undoubted legal principle that the fact of the accident of the location of the mansion house on an adjacent forty not belonging to the home tract, and to which the decedent had no title, would not in any way affect the quarantine right of the widow in the plantation which her husband owned; and in doing this we followed the ruling made in Brown v. Brown's Adm'r, 68 Mo. 388, where it was held that notwithstanding the dwelling house of the husband was on an adjacent eighty, and not on the remaining part which he owned in fee, this would not prevent the widow from successfully asserting her right to a homestead in the residue of the farm which her husband owned. These rights of homestead, dower and quarantine are cognate rights; rulings which illustrate one class of classes may frequently give useful aid in determining what are the necessary belongings and concomitants of other and similar rights. All such rights are bestowed by beneficent laws in order to afford support and shelter to the widow and the orphan; are remedial in their nature and objects and therefore should receive a liberal construction — one commensurate with the objects intended and in harmony with the ends to be attained.

III. Pursuing this line of thought, let us examine the contention that a portion of the lands in which plaintiff claims quarantine were separate from the tract known as “Oakdale,” where the mansion house was located, and therefore plaintiff has no right to quarantine in such detached portions.

The distance of the tracts marked 1, 2 and 3 from *218the main tract, as disclosed by the markings on the plat, are not very, considerable, and the court below on ample evidence found that all of the premises in question were cultiváted by Oentry as one farm; by the same hands and with the same farming implements and work stock. The hands boarded and lodged at the mansion house; the work stock was kept at the stables near the house, and the same stock which was grazed and fed on one portion of the lands was fed on the others; and the inventory and appraisement show that the property on the land west of Sedalia, to wit, the tracts' numbered 1, 2, and 3, and the land northwest of Sedalia, lying northwardly from those tracts, which included all the land in eontrovery, were included under the same heading in the inventory as the “Oakdale” property.

A right of quarantine is not confined to contiguous lands; the plantation lands on which it attaches itself, may be segregated; they need not be en bloc. In Perkins v. Quigley, 62 Mo. 498, it was ruled that in homestead lands contiguity was not an essential element, and no reason is perceived why the same rule should not prevail in instances like the present. In Orrick v. Robbins’ Adm’r, 34 Mo. 226, this court has said that, in reference to the quarantine right, it may exist though the farm be composed of several distinct tracts of land. This statement, though not a direct ruling, we are inclined to follow, and particularly so, where, as here, the distinct portions have been used as a unit and not as separate and independent holdings.

IY. If the continued possession by the widow of the whole plantation, or of a large portion thereof, and the reception of its rents and profits be regarded as detrimental to the best interests of the estate, or to those of heirs or creditors, etc., the remedy is one readily ¿pplied under the provisions of section 4546, Revised *219Statues, 1889, -whereby an executor, etc., heir, legatee, creditor, or other person interested etc., cam apply for the admeasurement of the widow’s dower.

Y. Something has been said in reference to section 25.0, Revised Statutes, 1889, which provides that: “Until the widow’s dower be assigned, the court shall order such sum to be paid to her out of the -rents of real estate as shall be in proportion to her interest in the real estate.” This section, however, we do not regard as applying to cases where the doweress is in under her qúarantine right; but only to cases where she is out of possession altogether in consequence of there being no mansion house on the plantation or used in connection therewith, or where she is in possession of a portion only of her quarantine lands, the residue having been leased by her husband for a term of years, in which case she would be entitled under that section to her proportionate part of the rents during that term, and ' to the whole of them at its expiration. But that section gives evident recognition to the rights of the widow, pending assignment of her dower, as being superior to the rights of creditors, as well as superior to the rights of minor children of the decedent, whose rights stand subordinated to those of creditors as shown by the preceding section.

YI. It is contended on behalf of defendants, and this was the purport of one of the refused declarations of law asked on their part, that, as to the land on which there was a deed of trust in the nature of a mortgage, executed by Gentry in his lifetime, in which plaintiff joined relinquishing her dower, the executors from the rents and profits of such mortgaged lands should first apply a sufficient sum to keep down the interest on such lands, and pay the residue, if any, to plaintiff.

This declaration of law was properly rejected, because a widow in such circumstances has no title or *220freehold estate in the land; she has but a “right” a “privilege,” an interest temporary, evanescent and fugitive in its nature; akin to a tenancy at will; determinable at the option of the heir, executor, etc., as already seen, and therefore she is not liable for repairs, nor to keep down interest or to pay taxes on the mortgaged premises. Under a statute substantially identical with our own, the point in hand has been thus ruled in New Jersey. Spinning v. Spinning, 43 N. J. Eq. 215. See, also, Graves v. Cochran, 68 Mo. 74.

YII. Is plaintiff estopped to maintain this proceeding? Defendants claim she is. The testimony shows that plaintiff made no representations; neither gave her consent, nor was asked to do so, to anything the executors did. They pursued their own course; kept their own counsel, and were wholly uninfluenced by anything plaintiff did, and she did nothing, it seems, but pursue the same course as during her husband’s life. The fact that, as was her custom living with her husband, she agreed with the executors to continue her superintendency over the household affairs as to keeping and boarding hands, who carried on the farming operations in 1890, and that she did this for a consideration paid by the executors, or the further fact that defendants paid the housekeeping expenses of plaintiff and such hands for that year, or that she used vegetables from the garden or apples from the orchard in thé house keeping operations, or that she, as formerly, kept a horse, furnish not a scintilla of evidence tending to establish an estoppel. She was entitled, under section 105, Revised Statutes, 1889, to provisions, etc., on hand necessary for the subsistence of herself and family for a year, and her acceptance of a remuneration for her services could not have misled the executors; it was not so intended, nor did they rely on it.

In short, none of the constituent elements of an *221estoppel in pais are to be found in plaintiff’s conduct, to wit: “First. There must have been a false representation or a concealment of material facts. Second. The representation must have been made with knowledge, actual or virtual, of the facts. Third. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter. Fourth. It must have been made with the intention, actual or virtual, that the other party should act upon it. Fifth. The other party must have been induced to act upon it.” Bigelow on Estoppel [5 Ed.], p. 570. See, also, Blodgett v. Perry, 97 Mo. 263, and cases cited. Stagg v. Linnenfelser, 59 Mo. 336.

Mere silence, acquiescence or even approbation do not of themselves, without more, necessarily operate as an estoppel. This point finds apt illustration in Husted's Appeal, 34 Conn. 488, where it was held that the widow was not estopped to claim full value of her dower by reason of the fact that the reversioner (her son with whom she lived) tore down the old dwelling and erected a new house with her approbation and for the more comfortable accommodation of his family, and of her as a member of it, and that she occupied it as a member of his family for several years before she applied to have her dower set out.

These remarks rule the point of estoppel against defendants, and 'also dispose of, in a similar way, the-action of the court as to “paragraph B” of the amendment offered to defendant’s answer.

The last clause of that pleading, for convenience, marked “c,” was properly rejected, because there is no evidence to show that plaintiff consented or agreed to the use of the lands as used by defendants.

YIII. There is nothing in the point that plaintiff has a suit pending in the circuit court for the assignment of her dower. There is nothing inconsistent or *222repugnant in the two suits. • Until dower assigned by express statutory command the right of quarantine continued; but whatever rents, etc., would be received in the quarantine ease would go to diminish rents and damages involved in the dower case; in which latter case, a plea puis darrein continuance may be interposed.

IX. The last point for consideration is the contention that the probate court had no jurisdiction of the. subject-matter of this proceeding, and that, consequently, the circuit court acquired none. In Orrick v. Robbins, Adm’r, supra, a proceeding similar to the present one, instituted in the probate court, was sanctioned by not being questioned. The statute in this case, based as it is on a provision of the constitution of similar import (aft. 6, sec. 34, const. R. S. 1889, sec. 3397,) declares of the probate court, that “said court shall have jurisdiction over all matters pertaining to probate business.” This authorizes in the fullest manner the present proceeding.

The cattle, etc., belonging to the estate were fed and grazed on plaintiff’s quarantine lands, becoming in this way more valuable, and so the proceeds of plaintiff’s quarantine lands thus went, in 1890, to swell the corpus of the estate, and hence in all fairness the assets of that estate should be drawn upon to reimburse plaintiff for what has been improperly taken from her. And the like line of remark applies to what was received by ■ defendants in 1891, from the land covered by the quarantine right. Finding no error in the record we affirm the judgment.

All concur.