Klocke v. Klocke

276 Mo. 572 | Mo. | 1919

Lead Opinion

BOND, C. J.

The plaintiff is the widow of Henry Klocke, who died childless and intestate in October, 1913. At the time of his death said Henry Klocke was seized of a vested remainder in fee (subject to a life estate in his mother, Wilhelmina Klocke)' in forty-one acres of land devised to him under the will of his father, George Klocke, who died in 1904, after having made a will specifically devising to his four children all of his real estate, subject to a life tenure in their mother. Wilhelmina Klocke (the mother) died in March, 1914, • and • two months thereafter plaintiff brought this suit to partition the land belonging to her husband, between herself and his three surviving sisters, alleging that she is entitled to one-half thereof, and each of the defendants is entitled to one-sixth thereof. The defendants answered, admitting the devise of the land in question to the husband of plaintiff, and his death, intestate and without children, but averred that he never was in possession of the said real estate on account of the intervening life estate of his mother, wherefore plaintiff was not entitled to dower and hence not entitled to elect to take one-half of said real estate in lieu of dower. The answer prayed for affirmative relief by a decree adjudging and determining the title between the parties.

Upon the hearing the court found the issues in favor of the defendants and that plaintiff had no right, title, interest, share or estate, as the surviving widow of Henry Klocke, in the real estate in controversy.

Plaintiff duly appealed to this court.

Eiection I. The only question presented by this appeal is whether, upon the conceded facts, plaintiff is entitled under Section 351, Revised Statutes 1909, which provides that “when the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: . . . second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband’s debts.” A widow’s right to dower at common law, many statutory substitutes therefor, and the correlative right of a husband whose wife has died without children or other descendants, are all defined in the present re-' vision. (R. S. 1909, secs. 345 to 357, inclusive.) Those to be carried in mind in construing the one under review are: Section 345, declaratory of common law dower — i. e. a life estate in one-third of the land of which the husband was seized during marriage; Section 350, giving the husband absolutely one-half of the estate of a wife dying without children or descendants; and Section 353, requiring election between Sections 345 and 351.

The close interrelation of these statutes require them to be construed in pari materia. As a whole they express the legislative purpose to provide for the rights and estate accruing to one spouse upon the death of the other in the circumstances posited in the several sections of the statute which together make up a general scheme of legislation. The undisputed facts show that the plaintiff would not have been entitled to dower at common law nor under the construction given to Section 345, Revised Statutes 1909, declaratory of the widow’s dowable right to “the third part of all the lands whereof her husband . . . was seized of an estate of inheritance at any time during the marriage, to which she shall not have relinquished her right of dower,” etc., the reason being that under the construction given to this statutory provision the widow of an owner of a vested remainder in fee, who died before the expiration of the life estate, would not be entitled to dower because her husband was not in actual possession of the land during his life. It is clear, therefore, that if the rights granted to a widow under Section 351 quoted above are only created in those widows who are also endowable at common law, the plaintiff in this case cannot recover.

After full and careful consideration of the terms and intent evidenced by the totality of these statutes, we are convinced that no such thought was in the minds of the legislators, or expressed by any of the enactments touching the point under review. The plain and obvious purpose of the statute in question (See. 351) as evidenced by its terms, was to vest in the widow of' a man who died under the hypotheses of the statute, the absolute right to “one-half” of the estate “belonging to him at the time of his death,” subject to the terms of a compulsory election in case, in addition to her . rights under Section 351, she should also be entitled to be endowed under Section 345, declaratory of her common law right to dower. Where she has the two rights, she must ele-ct; where she' does not have common law dower, then the law elects to give her, absolutely, the estate, between which and common law dower she would be compelled to elect if she had both. Where the two estates exist she must yield one to take -the other, hut where only one exists, she must have that alone. In other words, where dower, as defined at common law, is non-existent, she takes the other provision made by law as a “substitute.” This is the exact and felicitous term employed by Scott, J. (Hamilton v. O’Neil, 9 Mo. 13), and adequately expresses the idea that, failing dower, the widow is provided with a statutory “substitute” for that right. It is trite but true that no construction or interpretation of a statute should be adopted which tends to shear a widow of her rights to dower or of any beneficient provision granted in lieu of dower. [Keeney v. McVoy, 206 Mo. 42; Finneli Estate v. Howard, 191 Mo. App. l. c. 218; Chrisman v. Linderman, 202 Mo. l. c. 614.] In the present case all the husband left was a landed estate, the title to which, was vested in him in fee, subject to the physical possession of the tenant of an intervening life estate. Under this status the property belonging to him, under the rulings of this court, was not the subject-matter of dower. [Ellis v. Kyger, 90 Mo. 600; Crecelius v. Horst, 89 Mo. 356; Garrison v. Young, 135 Mo. 203.] We must assume that the Legislature had a prevision of such happenings and, in order that the wife in such cases should not be cut off entirely, enacted the statute vesting her with an absolute estate in one-half of what belonged to her husband at his death, irrespective of the conditions necessary to strict dower. And, having made this provision a substitute for dower, then to prevent a cumulation of both dower and its substitute, provided by another statute (Sec. 353) that the widow should elect whether she would take under the statute giving common law dower (Sec. 345) or under the statute which vested a statutory substitute (Sec. 351.) This is not only a natural and reasonable view of the purpose of the Legislature, but is the fair and logical import of the section giving the widow a right of election. The text of that section is, viz: “When the husband shall die without a child or other descendant capable of inheriting, the widow shall have her election to take her dower, as provided in • Section 345, discharged of debts, or the provisions of Section 351, as therein provided.” [R. S. 1909, sec. 353.] This language does not abridge the estate of a dowerless widow, for it has no application whatever unless the widow is a dowress and also entitled to one-half of what belonged to her husband at his death. The premise of the statute is that she shall be entitled both to dower (Sec. 345) and the different provision 'made by the Legislature in Section 351. Upon that premise alone the statute bases its conclusion requiring the widow to choose which she will take. It does not seem this could be plainer if the language of a statute is any index of its meaning. We therefore hold that Section 351 creates an estate other than dower which can only be defeated where the widow, being also entitled to dower under Section 345, fails to exercise her right of choice between the two estates (Sec. 353) and is, therefore, relegated to her rights to dower under Sections 345, 347 and 348.

In close analogy to this conclusion is the construction given to a later statute providing that when a wife shall die in similar circumstances, the husband “shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts. [R. S. 1909, sec. 350.] The two sections (350, 351) are intended to form, when taken together, “one law establishing the relative rights of the husband and wife in the property of each other under the same conditions.” [Waters v. Herboth, 178 Mo. l. c. 171.] This later statute has been construed to vest an estate,' according to its terms, in the husband, although he might not have had any curtesy in his wife’s land. [Perry v. Strawbridge, 209 Mo. 621; Ferguson v. Gentry, 206 Mo. 189.] Unless it was the intention of the Legislature to discriminate in the same circumstances in favor of husbands over wives, the same construction ought to be applied to a similar provision for the benefit of the wife, although she might never have had any right to common-law dower in her husband’s estate.

case.Arb II. In the case of Von Arb v. Thomas, 163 Mo. 33, it was held that a widow’s right to the benefit of Section 351 depended on a pre-existing right to dower under Section 345. That ruling, as has been seen from an analysis of the language and legal intendment of Section 353, is logically untenable. The error arose from the view that a duty of election between the two estates, made the existence of one depend upon the existence of the other. That view is incompatible with the statute which granted the substitute independent of the original estate, only requiring where both existed that the beneficiary should elect. It could not, in these circumstances, be correctly held that the latter estate was created by any other method than the statutory grant. A contrary notion in the Yon Arb case necessarily infected the conclusion reached therein. It follows that that decision must be overruled.

The doctrine of rule of property should not weigh with us in the abolition of a precedent not sustainable in reason and in contravention of the terms of the statute relied upon to support it, and which has wrought injustice in every instance of its subsequent application. In such cases the argument ab inconvenienti is stripped of all force, if the law is a growing science, adapting itself to the demands of social justice and the dictates of right reason. In addition to these general motives for the correction of judicial error, the present case does not present the question of the propriety of adhering to a former decision for the preservation of intervening property rights acquired thereunder, for the reason that the decision which is overruled in this case, was one which construed a “statute of descents.” No property rights acquired under that construction of the statute could be invalidated by a change of construction in a subsequent decision. In that respect the overruling of a previous decision construing a statute or constitution differs from the effect of the overruling’ of a decision on other topics. In the latter case the effect of the subsequent decision is retrospective and is the same as if there never had been any prior ruling. In the former case (made by the record before us) the effect of our decision is prospective only. The principle governing the case at bar, which is an exception to the general rule, is thus correctly stated: “The true rule in such cases is held to be to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative repeal or amendment; that is to say, make it prospective but not retroactive. ” This is the language of 7 R. C. L., p. 1010, par. 36, and supported by a citation of Federal and "State cases. It follows that the concrete case does not fall within that class of cases where it becomes necessary, before overruling a former decision under which property rights have vested, to choose between the relative evils likely to ensue.

The judgment of the circuit court is reversed and the cause remanded to be proceeded with in a manner not inconsistent with this opinion. It is so ordered.

All concur, except Far is, J., who dissents: Blair, J., concurs in separate opinion.

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Concurrence Opinion

BLAIR,. J.

(concurring). — In this case the widow filed her election. Whether in the absence of such an election, she would have taken, automatically, under Section 351, is a question not arising on this record. I think a decision of that question should be deferred until it is presented. In the rest of the opinion I concur.