264 Mo. 129 | Mo. | 1915
This is a suit for the admeasurement and assignment of dower in 150 acres of land in Perry county, of which William Cambrón died seized in October, 1901, intestate, leaving the plaintiff, his widow, and certain -children and grandchildren, the interests of all of whom are now in the defendants, as his only heirs. The petition states these facts and that afterward on August 14, 1905, plaintiff was married to one Milster, who died in 1907, and that in 1909 she married Jordan, who still lives. It further states that in 1903 some of these heirs brought a suit in partition against her and the other heirs, in the circuit court for Perry county, in which 32.31 acres of the land, comprising the mansion house and messuages, were set off to her
The defendants demurred generally. The demurrer was overruled by the court, and the defendants refusing to plead further, the cause was submitted on-the pleadings and evidence taken, and the court found that the plaintiff became, at the death of the said William Cambrón, entitled to both homestead and dower in the 150-acre tract; that her dower had not been assigned in the partition suit; ascertained and declared the interests of all the parties subject to her dower; that she was entitled to be endowed of the one-third part in value of all said land for and during the period of her natural life, to be admeasured and set out to her out of the 32.31 acres heretofore mentioned; that no dower had ever been assigned to her out of any of the lands of Cambrón, her former husband; and that the defendants on March 1, 1909, wrongfully entered upon all the 32.31-acre homestead tract and have ever since held exclusive and wrongful possession thereof, deny
The commissioners at the April term, 1911, reported that they had assigned her 30'. 14 acres, which ■ they fully described, out of the 32.31-acre tract, as her dower. This report was duly approved and confirmed by the court by its final judgment at the same term, and on July 3, 1911, this writ of error was issued and is properly returned here.
The learned counsel for the plaintiffs in error have placed us under obligation by stripping their case to the single naked point which they present for our consideration: They relieve us from going again upon the ground over which we traveled in Chrisman v. Linderman, 202 Mo. 619, and Keeney v. McVoy, 206 Mo. 42, by stating that they do not insist that the Homestead Statute ex vi termini destroys the dower where the widow’s homestead interest is greater than one-third in value of the real estate of which the husband died seized; and concede that where dower and homestead ■have not been assigned by legal proceedings, occupancy and delay do not destroy or in any way affect her right to dower. They do insist, however, that where, as in this case, in an action for the partition
Although an act exempting homesteads from sale under executions was passed and approved March 23, 1863, its provisions shed little or no light upon these questions. The homestead law upon which our present system was constructed, and from which it has developed to its present form, was enacted in 1866. [General Statutes 1865, chap. 111, p. 449.] It provided (sec. 5) that upon the death of the housekeeper or head of the family leaving a widow or any minor children his homestead should pass to and vest in such widow or children, or if there should be both, in such widow and children, who should take the same estate of which
While with the clause in which it occurs standing alone there might be doubt as to whether the words “amount of such dower” as used in the foregoing section refers to the value of the land or of the dower estate, it is set completely at rest by the plain words of the following clause, which we have taken the liberty to italicise. Under its provisions had the householder died seized of country lands in fee, leaving a widow without children, the homestead to the value of $1500 would be set out to her absolutely. If the value of the remaining lands added to this did not exceed $4500, no dower would be assigned. If the total value exceeded that sum, lands to the value of one-third the excess would be set out to her for life. This closes the transaction; for her homestead being a broader estate, and including her dower both in quantity and'estate, would amount of itself to an assignment of dower to
We have gone into these details to enable us to understand the change made by the Act of 1875. [Laws 1875, p. 60.] This limited the widow’s estate in the homestead to the term of her life, leaving it the same in all other respects, and the interests of minor children untouched. The effect of this was to leave her estate in the homestead and dower lands the same — ■■ a simple life estate, so that her homestead estate could not yet fall from under her dower. Her homestead was still diminished by the estates of the minors, any one of which might, in the course of events, prove greater than her own. To meet these conditions another amendment provided a new rule of assignment. The estate in the homestead for the life of the widow was to be valued instead of the fee; and after deducting from this the value of the estates of the minor children the balance was to be charged against her dower, which was fixed at one-third interest for her life in all the lands of which the householder died seized. Thus the extent of her estate in homestead and dower was made equal, and possession under the former would still support the latter until the same event should put an end to both. The Act of 1895 (Laws 1895, p. 186, sec. 2) however, introduced a new element which has rendered this controversy possible. It reduced her homestead estate to a base or determinable one (if we may be permitted such an expression
PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.