| Mo. | Aug 15, 1872
delivered the opinion-of the court.
Plaintiff brought his action of ejectment in the court below, and had judgment for the possession of the lot in controversy. The objections urged here by appellants are mostly to the rulings of the court in the admission of evidence. It will be unnecessary to notice them all, as some of them are purely technical and devoid of merit.
The point that the sheriff’s dee’d was inadmissible in evidence be,cause its recital was that the notice of the sale was published in the Union, when in fact it was published in the Herald, we do not think is .sustainable. It was obviously a clerical error, and is not such a substantial misrecital as will destroy the effect of the deed. (Stewart v. Severance, 43 Mo. 322" court="Mo." date_filed="1869-02-15" href="https://app.midpage.ai/document/stewart-v-severance-8002509?utm_source=webapp" opinion_id="8002509">43 Mo. 322.)
That the notice was published the requisite length of time is, I think, very clear, and that it was published in a newspaper in compliance with law is undoubted. .And the same is true in reference to the diversity of statement in the respective publications in the German and English newspapers. The statement in one that the sale would take place while the Circuit Court was in session, and in the other during the session of the Common Pleas, was not such a mistake as would invalidate the sale. The notices were regular as to time and place. They imparted full information to all who desired to bid, and a sale when either court was in session was equally legal. There was no error of substance, and no person could have been misled by the inaccuracy.
The act organizing the Probate Court of Buchanan county provides that the judge of probate shall make, keep and preserve complete records of all wills, testaments and codicils, and the proof thereof, all letters testamentary and of administration, etc., and all final and interlocutory judgments and orders which he may make thereon, forming a perfect record of his proceedings. (Sess. Acts 1851, art. II, p. 515, § 2.)
The record in this case seems to be somewhat irregular, and omits to show all that should be regularly kept and shown. But the will is preserved with the proofs of probate indorsed thereon, together with the other papers arising out of the administration of the. estate, and in this proceeding we are not prepared to say that the evidence was wholly inadmissible.
The lot that is here in contest between the parties originally belonged to one Noble, who died childless, leaving a widow surviving him. By his will he devised all his estate to his nephew Johnson. The widow, in lieu of dower, elected to take one-half of the estate, under the third section of the dower act of 1845. (R. C. 1845, p. 430, §§ 3, 5, 6.)
The plaintiff here does not claim title under the widow, and there is no evidence in the record to show that any partition was ever had between her and Johnson, or that her interest was ever divided or set apart to her. But with this patent fact the court, at the instance of the plaintiff, instructed the jury that the fact that Noble left a widow who elected to take her dower in the land of her husband, under the third section of the act in reference to dower in this State, was not sufficient to show that she had. any legal title to the prémises at the commencement of this suit; and refused to instruct for the defendants that the election -of the widow to be endowed under the third section prima facie vested in said
It must be borne in mind that, under the first section of the dower act, the right of the widow to be endowed is absolute; but her right to take half of the estate, under the third section, depends upon a contingency. Under the latter section she must make her election within a prescribed time, and then she takes subject to the payment of debts. In a former case in this court it was said: “ The doctrine is that when an election creates the interest, nothing will pass until an election is made; and if no election can be made, no interest will arise.” (Hamilton, Adm’r, v. O’Neil, 9 Mo. 11, citing 1 Co. Litt. 523; U. S. v. Grundy, 3 Cranch, 337" court="SCOTUS" date_filed="1806-02-22" href="https://app.midpage.ai/document/united-states-v-grundy-and-thornburgh-84823?utm_source=webapp" opinion_id="84823">3 Cranch, 337.)
But when an election is made, the interest necessarily vests. It cannot be held in abeyance. An election disclaims and forfeits all rights under the first section, and substitutes the interests and privileges given therefor under the fifth section. The widow’s right becomes a fixed and vested interest whenever the declaration of election is made within the limitation and in the manner provided by the statute. That it is subject to be impaired or defeated by the payment of debts makes no difference. In this respect it is like the realty which descends to the heir; the title is vested, but it is subject to be divested if necessary to provide assets for the payment of debts. In both cases the law vests the title upon the happening of an event, and also divests it for certain purposes.
In my opinion the court erred in giving the instruction for the plaintiff, and refusing the one offered by the defendants, and for this reason the judgment will be reversed and the cause remanded.