188 Mo. 688 | Mo. | 1905
This is an action for partition and assignment of dower, which was tried below on an agreed statement of facts, from which it appears that on the 5th day of July, 1902, Thomas Board died seized of a farm of 179.5 acres in Audrain county, of the value of $4,936.25, subject to a mortgage theretofore executed by him and his wife, amounting to $2,033.00; a homestead in the city of Mexico of the value of $1,500, and some other lots in said city of the value of $300. He left surviving him his widow, the said defendant, Lucy A. Board, and one child by her, the plaintiff,
By section 3621, Revised Statutes 1899, it is provided that, “The commissioners appointed to set out such homestead shall, in cases where the right of dower also exists, also set out such dower, and they shall first set out such homestead, and from the residue of the real estate of the deceased shall set out such dower, but the amount of such dower shall be diminished by the amount of the interest of the widow in such homestead; and if the interest of the widow in such homestead shall equal or exceed one-third interest for and during her natural life, in and to all the real estate of which such housekeeper or head of a family shall have died seized no dower shall be assigned to such widow. ’ ’
The learned trial judge reached his conclusion, as appears by his opinion reproduced in the argument of counsel for respondent, in this way: The net value of the real estate of which Thomas Board died seized being $4,703.25, and the widow by her election having become entitled to an estate in fee simple therein of the value of $2,351.62, dr $851.62 more than the value of the homestead, her homestead was swallowed up in the estate which she took by her election, ergo she hath no homestead interest. The specious reasoning by which this conclusion is reached is, by calling the estate which the widow took by her election “dower” and an attempted application of the foregoing section to that estate as such. Without stopping to review the reasoning by which such a manifestly erroneous conclusion was reached, it is sufficient to say, that while that section does provide a way in which a widow’s dower may, so to speak, be swallowed up in her homestead, it pro