88 Mo. App. 423 | Mo. Ct. App. | 1901
This case has been exceedingly troublesome, on account of discrepancies among the authorities, and tbe widow’s statutory allowance under tbe administration law having been treated as part of her dower in tbe personal estate. It has been decided by this court tbat tbe widow may be deprived of tbe award by accepting tbe bequests of a will, whose provisions are inconsistent with it. Schwatken v. Daudt, 53 Mo. App. 1. Tbat is tbe only authority in this State, we believe, in which she was refused the benefit of tbe statute, although there are others which inferentially point to tbe same result under similar circumstances, but in which tbe allowance was adjudged in her favor because the language of tbe will fell short of authorizing the conclusion that the testator intended the legacies to supersede it. Bryant v. McCune, 49 Mo. 546; Hasenritter v. Hasenritter, 77 Mo. 162; In re Klostermann, 6 Mo. App. 314; Shoeneich v. Reed, 8 Mo. App. 356; Mowser v. Mowser, 87 Mo. 437.
The property she selects, to the value of four hundred dollars, is “to be deducted from her dower in the personal estate, if there be any.” R. S. 1899, sec. 108. This is an old statute except as to the amount, which used to be two hundred dollars (R. S. 1845, sec. 32, art. 2). The provision was early spoken of as part of the dower in the personal estate. Hastings v.
That conception, or misconception, of the nature of the right, has undoubtedly produced the opinion that it will be surrendered or waived, like any other dower interest, by the. acceptance of legacies given in a will whose provisions are incompatible with it. This bounty is in reality an altogether different thing from dower in personal property, which is likewise of statutory origin, and it is designed to be, pro tanto, an improved substitute for the latter. The two are not identical, merely analogous. Shipman v. Keys, Adm’r, 127 Ind. 353. They resemble, in both vesting absolutely in the widow at the death of her husband, and in being exempt from the effect of his testamentary dispositions. They differ, in that she may select articles she desires under the administration statute, and in their exemption from liability for the debts of the deceased (section 108, Eevised Statutes 1899), whereas, the right to a share in the personalty given by section 2937, Eevised Statutes 1899, is subject to his debts. Cox v. Dunn’s Adm’r, 3 Mo. App. 848; Straat v. O’Neil, 84 Mo. 68-73. It is the right to take under the latter section which is dower. Hoyt v. Davis’s Extr., 21 Mo. App. 235; Hayden v. Hayden, 23 Mo. 398; McFarland v. Baze, supra; Pemberton v. Pemberton, 29 Mo. 408; Cummings v. Cummings, supra; Griffith v. Canning, 54 Mo. 282. Neither does she have to file an election to acquire this bounty, as she does in certain contingencies to vest in her the title to the personalty under the dower act. Bryant v. Christian, 58 Mo. 98. To avoid confusion, it should be remarked that the “election’’ spoken of in connection with this
In the present case, nothing is shown as to the value/of the personal estate. If the plaintiff takes under the will and that deprives her of what she seeks in this action, her entire legacies might be sacrificed for debts of the deceased. But manifestly the law means that she shall have four hundred dollars worth of property exempt from his debts in every event, and she ought to have it whether he died testate or intestate, to give full effect to the law’s policy. In view of this it was held where the husband provided that bequests should be in lieu of her dower and distributive share in the estate, she was still entitled to the statutory allowance before distribution and final settlement. Pulling v. Durfee, 85 Mich. 31-38. Moreover, a widow has a year in which to make her elections as to the will. R. S. 1899, sec. 2943; Bretz v. Matney, 60 Mo. 444; Register v. Hensley, 7 Mo. 189. This section has reference only to lands. There is no provision for an election in respect to personal property, and that a difficulty might thereby sometime arise was foreseen in Bryant v. Christian, supra. The record is silent as to whether Mrs. Glenn has formally accepted or rejected her husband’s will; but both parties agree that the issue is whether she shall have four hundred dollars worth of property besides what is bequeathed to her; so we will assume she has accepted it in considering this application.
As has been remarked, all the decisions in this State, ex
A careful study of decisions in this State and elsewhere, in which tbe deprivation of tbe statutory bounty by reason of accepting legacies is discussed, has led us to tbe conclusion that in most, if not all, instances, the courts insist on something more in tbe will to bar tbe widow from claiming tbe bounty than a provision that tbe bequests to her shall be» in lieu of dower. While they will deny her dower in personalty when tbe will so stipulates, or, when, constructively, its provisions are inconsistent witb tbe estate, they appear to require, as a condition precedent to denying her tbe preference given by tbe administration law, words of tbe testator, either unequivocally providing that she shall be denied it if she accept tbe bequests or else showing unmistakably that be had that right in bis mind’s eye and intended that bis provision
In view of these rulings, others like them which might be cited and the very strong expressions of our own courts in Bryant v. McCune, Hasenritter v. Hasenritter, In re Klostermann, Schoeneich v. Reed, Mowser v. Mowser, supra, and Dudley v. Davenport, 85 Mo. 462, we are constrained to hold that the plaintiff is entitled to the relief she seeks. Schwatken v. Daudt, supra, may be harmonized with this conclusion, for the clause of the will there which was held to bar her right, provided that in the event of the widow’s remarriage, she should take only such part of the testator’s estate as she might be entitled to under the statutes of the State of Missouri. This provision would cover the statutory allowance as well as statutory dower. Refraining, therefore, from deciding that the appellant is entitled to dower in her husband’s personal estate, the judgment is reversed and the cause remanded with the direction that she be granted the relief prayed for in her application.