87 Mo. 437 | Mo. | 1885
This proceeding originated in the probate court of Bollinger county and was an application by the widow of Elisha Mowser, deceased, under section 107, Revised Statutes, which is as follows : “In addition to the above, the widow may take such personal property as she may choose, not to exceed the appraised value of four hundred dollars, for which she shall give a receipt.”
It was admitted that plaintiff, Ada, was the lawful wife of the deceased, of good reputation for chastity and in all respects a lady of fair name; that she made her application in due time and that the property is on hand, and the resistance to the allowance is based upon the following admitted facts : That she and deceased were married on the twelfth day of August, 1880, and continued to live together as husband and wife from that date until February 7, 1881, when Mrs. Mowser abandoned her husband without any cause, he having treated her with kindness and affection and provided her with a comfortable home and abundant support. That at her marriage she had several hundred dollars in money, andj prior to the marriage, it was agreed between her and Mowser that it was to remain her sole and separate
A witness testified to a portion of the above facts, and defendant also offered to prove by this witness that Mr. and Mrs. Mowser, upon their intermarriage, agreed oh the death of either the other should not claim any interest in the estate of the deceased. This, on objection of plaintiff, was excluded. The probate court refused her application and the plaintiff appealed to the circuit court which rendered a judgment in her favor, from which defendant has appealed.
The circuit court committed no error in excluding the testimony offered to prove the parol agreement alleged between Mr. and Mrs. Mowser. She received nothing as a consideration for the alleged agreement. Her money was secured to her by section 3296, Revised Statutes. Section 2201 provides that: “If any woman, prior to and in contemplation of marriage, shall, in agreement or marriage contract with her intended husband, or other person, receive any estate, either real or personal, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of all her claim of dower, such estate shall be va'id, and a bar to dower in the estate of her husband.” Even if a parol agreement can be allowed to defeat dower, the widow must receive under it, real or personal property as a provision for her support during life ; it is against public policy to allow a man, by an agreement before
The abandonment by plaintiff of her husband did not impair her right to the provision claimed. The four hundred dollars allowed her by section 107 is an absolute provision for the widow, and she is entitled to it whether there are children of the marriage or not, or whether the deceased left a family or not. It is not given to the widow for the benefit of herself and her children, or the children of the deceased, but to her for her own use to be disposed of as she may see proper, and •notwithstanding she abandoned her husband and without any sufficient reason, still she is entitled to the property or its value claimed by her. She was his wife to the day of his death. The court will not try divorce suits after one of the parties to the marriage is dead. But Mowser had no grounds for "a divorce from his wife while he lived. She left her home in February, 1881, and he died in September of the same year. An 'abandonment is no cause for a divorce until it has continued for the space of one year. The judgment is affirmed.