Murawski v. MurawskiMurawski v. Murawski
This is аn action to partition certain real estate. Plaintiff (appellant) alleged that she and the defendant were the *536 owners, as tenants in cоmmon, of Lot 45, Westbrook Plaza, Kansas City, wbicb. was subject to a certain deed of trust therein described; that the real estate was not susceptible of partition in kind and prayed that the same be sold, the balance due on the deed of trust be paid, and the net proceeds be divided between рlaintiff and defendant according to their respective interests. Defendant’s answer admitted all the allegations in plaintiff’s petition and joined in the рrayer that the real estate be sold and the proceeds divided between the parties.
- The .court found .that. plaintiff and defendant were tenants in common; entered interlocutory decree of partition; ordered the lot sold, subject to the mortgage lien, and appointed a special commissioner to make said sale and to report the same to the court.
After this interlocutory decree was entered’ plaintiff filed a motion to set the same aside for the reason that at the time the lot was purchased plaintiff and defendant were husband and wife and the title to thе same was taken in their joint names, “thereby creating a tenancy by the entirety”; that on October 10, 1945, plaintiff was awarded a decree of divorcе from the defendant because of his fault or misconduct, and alleges that since the divorce was granted her because of the fault or misconduct of her husband, she has inchoate right of dower in his undivided one-half interest in the real estate here involved; that the court had erred in failing and neglecting to ascertain and declare her dower interest in the husband’s undivided one-half interest at the. time of the interlocutory decree.
The court overrulеd that motion and she perfected her appeal to the Supreme Court. That court transferred the cause here for lack of jurisdiction. Murаwski v. Murawski,
Plaintiff contends that the court erred in holding that she did not have inchoate'right of dower in defendant’s interest in the property, while defendant asserts thаt such ruling is correct. There are other questions urged and discussed, but they all revolve around the vital question whether the plaintiff, at any time, had .dower interest in the property, the title to which was held by her and her husband as tenants by the entirety. There are no disputed facts.
It is conceded the effect óf the divorce decree was to destroy the
tenancy by entirety
and to vest in each of the parties title to the property as tenants in common. Sec. 331, R. S. 1939; Murawski v. Murawski, suprа; Joerger v. Joerger,
By Sec. 318, dower • attaches to certain property. The material part of that section reads-. “Every widow shall be endowed of a third part of all the lаnds whereof her husband
*
* * was seized of an
estate of inheritance,
at any time during the marriage, to which she shall not ha,ve relinquished her right of dower,
* *
(Italics
*537
ours). The term “estate of inheritance” has an accepted and settled meaning in law. It means an estate that will descend to a man’s heirs by the simple operation of law, and it may be an absolute or fee-simple estate; it does not include an estate for the life of the husband, or other lesser estates. Casteel v. Potter,
An inchoate right of dower prior to the death of the husband is a contingent right, and in no sense vested, but a mere expectancy or possibility incident to the marriage relаtionship contingent on survival. First National Bank v. Kirby,
We are of the opinion that in an
estate by the entirety
the husband is not “seized of an estate of inheritance”. In discussing the nature оf an estate by entirety, it has been held that the husband and wife have unity of interest, unity of entirety, unity of time, and unity of possession. They are neither properly jоint-tenants, nor tenants in common, but both are seized of the entirety. While the right of survivorship gives the estate an apparent resemblance to joint-tеnancy, it yet differs materially from joint-tenancy, for the survivor succeeds to the whole not by the right of survivorship simply, as is the case with joint-tenancy, but by virtue of thе grant which vested the entire estate in each grantee, or, in contemplation of law, in one person with a dual body and consciousness. Being but one person in law, they take the estate as one person, each being the owner of the entire estate; neither of whom have any separate or joint interest but a unity or entirety of the whole; so if either dies the estate continues in the survivor, as it had existed before. The only change by dеath is in the person, not the estate. Ahmann v. Kemper,
Therefore, if the husband did not own an “estate of inheritance” in the property during the time plaintiff and defendant were husband and wife, then the wife never had any dower interest, inchoate or otherwise. When she divorced her husband for his fault, that judgment first destroyed the marital relationship and then destroyed the estate by the entirety. He was no longer her husband at the time he bеcame seized of an undivided one-half interest as a tenant in common (an estate of inheritance); and she, not being his wife at the time he became seized of such undivided one-half interest, did not acquire any dower interest in the property.
*538
To sustain her contention that she is entitled to dower, plаintiff quotes from Am. Jur., Vol. 17, Sec. 47, p. 700.- The first sentence of that quotation demonstrates that it is not applicable to.the facts in this case. The quotation is: “ Thе right of inchoate dower comes into being after marriage of the parties upon the concurrence therewith of seisin in the husband of property and
an estate subject to dower.”
(Italics ours.) The estate which the husband had in this property, prior to the divorce, ivas not such an estate as was “subject to dower.” Plaintiff also cites Vantage Mining Co. v. Baker,
It is our conclusion that plaintiff did not have dower interest of any kind in defendant’s one-half interest in the property, and that the court correctly ruled that question. .
The judgment is affirmed.