Hamilton v. O'Neil, 9 Mo. 10

Hamilton v. O'Neil

9 Mo. 10 | Mo. | 1845

Scott, J.,

delivered the opinion of the court.

This was a proceeding instituted by motion in the prolate court of St. Louis county, in the name of Mary O’Niel, widow of Hugh O’Niel, deceased, for the recovery of a portion of the rent of the real estate of said H. O’Neil, under the 12th section of the 6th article of the act respecting executors and administrators, which directs that until a widow’s dower is assigned, the court shall order such sum to be paid to her out of the hire of slaves, and rent of real estate, as shall be in proportion to her interest in the slaves and real estate. It appears that Hugh O’Neil died seized of real estate without a child or other descendant leaving a will by which he bequeathed to his wife all his household furniture and personal property, on the premises occupied by him at the date of his will, in lieu of the sum of $160 to which she ■would otherwise be by law entitled. Mary O’Neil made no election, whether she would take under the first or the third section of the act *17«•concerning dower, nor did she file any renunciation of tbe provision made for her in the will of her husband. On hearing the motion, the .probate court ordered the administrator with the will annexed, to pay over one-third of the rents of the real estate to’th'e widow Mary O’Neil. JTrom this order an appeal was taken to the circuit court, where it was affirmed, and the cause is now brought to this court.

The question submitted for determination, Is, whether Mary O’Neil, the widow, having made no election, is entitled to any dower, and if entitled, under which section of the act respecting dower, shall it be assigned ?

Let it be borne in mind, that the first section of the act concerning dower, is general in its terms and applies to the widows of all husbands whatsoever, without regard to "circumstances; and the first clause of it, except so far as it relates to uses, is declaratory of the common law. The words are., that every widow shall be endowed. If legislation had ceased.here, every widow would 'have been provided for, none could have complained that they were overlooked. The third section on the other hand is partial in its terms, it provides for a particular class of cases, and does not enact that the widow of every such husband shall be endowed, ¡but shall be entitled &c. Had no other provision been made, than is contained in this section, most widows would have been left without dower or any thing in lieu of it.

Because the common law respecting dower has been changed in some particulars, it cannot therefore be maintained that the whole system in •relation to that subject Is repealed. The common law being the substratum of all our laws, its rules prevail unless repealed expressly, or hj necessary implication. If the rules of the common law be applied in determining which of the two sections, above referred to, shall give .dower, no question can be left on the mind. By the common law, dower is a title inchoate from the date of the marriage, and becomes consummate by the death of the husband. It is an interest which attaches on the land as soon as there is the concurrence of marriage and seizen, 4 Kent, 50; Cruise, tit. Dower; Coke, Lit. Now if dower is an inchoate title, and has its existence from the concurrence of marriage and seizen, it can have no relation to the 3rd section of the act, because when the marriage is solemnized, if there he a seizen at that time, it cannot be ascertained whether the circumstances will ever arise under which it can attach. This objection does not apply to the first section of the act. It would seem then to follow, that this section was designed to give dower, and the third was intended under certain circumstances as a substitute to it, to entitle a widow to which, it was neces*18sary that she should have declared an election to take it. The doctrine is, that when an election creates the interest, nothing will pass until' a» • election is made; and if no election can be made, no interest will arise. 1 Coke, Lit. 523. United States vs. Grundy & Thornburgh, 3 Cranch. 337. There being then no interest under the 3rd section, previous to an election, and no election having been made within the time prescribed by law, none could afterwards arise. But if an interest existed under the first section, previous to any election, as it has been endea** vored to be shown, and as that interest would still continue, until it was divested by an election lawfully made, it must follow, that that section gives the rule by which the rights of the defendant in error are to be ascertained and determined.

As to the objection, that the widow not having filed a renunciation of the provision made for her by the will of her husband, in accordance with the 10th section of the act concerning dower, she is not therefore entitled to be endowed; it can only be necessary to observe that the 10th section and the one preceding it, only relate to devises of real estate, and the provision made for the wife by the will, being only of personal estate, she was under no obligation to renounce that provision, in order to entitle her to dower in the real estate.

Judgment affirmed.