119 Mo. 174 | Mo. | 1893
This was a suit for the partition of four hundred arpents of land situate in the county of St. Charles. The facts are to the following effect: On the twelfth of December, 1863, Benjamin H. Payne and Adelia R. Gray entered into a marriage contract, the eight clause of which is as follows:
“Clause eight. In consideration of said future marriage and the sum of one dollar to me Benjamin H. Payne, paid in hand by the said Adelia R. Gray, the receipt whereof is hereby acknowledged and the stipulations hereinafter named, I hereby grant, bargain, sell, convey, remise and release unto the said Adelia R. Gray, during her natural life, and at her death to
The parties married immediately after the execution of the contract. Benjamin H. Payne died intestate in the month of September, 1867, leaving five children, namely, Alfred H., Nellie L., and Robert H., .who were, children by a former marriage, and Jefferson and Fannie, children by said Adelia R. Robert H. Payne, one of the children by the first marriage, died in October, 1889, intestate, unmarried and without issue.
Adelia R. Payne died intestate in March, 1891, ■ never having again married, leaving the two children before mentioned, namely, Jefferson and Fannie.
1. The trial court held that the fee passed to the heirs of Benjamin H. Payne at the moment of his death, thus giving to each heir a one-fifth interest, subject to the unexpired life estate of Adelia R. Payne, formerly Gray. The plaintiff insists that the fee did not pass to the heirs of Benjamin Payne until the death of Adelia R., and hence each took a one-fourth interest, one having died before the death of Adelia; and this difference between the ruling of the court and the claim of the plaintiff, presents the first question for our consideration.
The eight clause of the marriage contract conveys the land to Adelia R. for life “and at her death to pass ahd descend as hereafter specified in the fourth cláuse.” It is claimed by the plaintiff and conceded by the defendants that the fourth clause of the contract utterly fails to point out to whom the property shall
Again, as there is nothing in the fourth clause directing how the property shall go after the death of Adelia R., the words of reference found in the eighth clause to the fourth are of no value whatever; and the law of descents must take its course. The marriage contract simply conveyed a life estate to Adelia R., leaving the reversion in Benjamin H. Payne, which passed to his heirs at the time of. his death. The heirs took title at that time with the right of possession at the expiration of the life estate. We see no. error in -the ruling of the court on this branch of the case.
' 2. Benjamin H. Payne and his wife, Adelia R., resided upon this land from the date of their marriage until his death'in- September, 1867; and in due time
In considering this question it is to be remembered that she had a life estate in the entire land in question, by virtue of the marriage contract. While what is now section 4523, Eevised Statutes, 1889, gives to the widow the right to elect to take a child’s part under the circumstances there stated, still the election is made and must be made in lieu of dower; and it must follow that if the widow has no dower right in the land, she has no right to elect to take a child’s part therein.
Now, seisin of the husband at some time during the marriage is an indispensable prerequisite in order to entitle the widow to dower; and it must be a seisin in fact or in law. Gentry v. Woodson, 10 Mo. 225; Ellis v. Kyger, 90 Mo. 606; 4 Kent’s Commentaries [13 Ed.], p. 38; 1 Bishop on Married Women, secs. 250, 273. “If, therefore,” says Washburn, “the husband have only a reversion or remainder after a freehold estate in another, though it be a fee, it will not give his wife a right of dower therein, unless by the death of the intermediate freeholder, or’ a surrender of his 'estate to the husband, the inheritance becomes entire in the husband during coverture.” 1 Wash, on Real Prop. [5 Ed.], 204.
Here the husband had only a reversion after the life estate. He had no seisin, either in fact or in law, at any time during the marriage. The seisin during the whole of that time was in the life tenánt, his wife. Surely an attempt to1 assign dower, that is one-third for life, to her, when she owned the whole property for her life, would be' a novel proceeding.
