Pemberton v. Pemberton

29 Mo. 408 | Mo. | 1860

Scott, Judge,

delivered the opinion of the court.

This is a suit for, the assignment of dower under the dower law of the code of 1845. The testator having devised both real and personal estate to Ms wife, the question arises whether that devise, if accepted, bars the widow’s right to dower in both the real and personal estate. The tenth section of the dower act of the code of 1845, and which is continued in the present code, provides, if any testator by will shall pass any real estate to his wife, such devise shall be in lieu of dower out of the real estate of her husband whereof he died seized, unless the testator, by his will, otherwise declare. In the case of Halbert v. Halbert, 19 Mo. 453, it was held that the bequest of a slaye to a wife, under the section just referred to, did not bar her dower in the real estate. The spirit of this decision is that the tenth section of the act relates to dower in the real estate only, and does not affect the wife’s dower in the personalty. We are of the opinion that this is the obvious intention of the act, and that the section was designed only to extend to real estate, and left the question, how far a bequest of personal estate would bar dower in such estate, to be determined by the rules of the common law. Our statute, unlike the common law, gives a legal right to dower both in the personal and real estate; and a devise or bequest in one is no bar to dower in the other, unless it is so declared by the testator.

This case, then, presents the question, whether the bequest of the personalty to the wife is a bar to her right of dower in the residue of such estate, or whether it is cumulative and to be received in addition to dower. Story thus states the rule: “ If a testator should bequeath property to his wife manifestly with the intention of its being in satisfaction of her dower, it would create a case of election. But such an intention must be clear and free from ambiguity; and it will not be inferred from the mere fact of the testator’s making a general disposition of all his property, although he should give his wife a legacy; for he might intend to give only what was strictly his own subject to dower. There is no repug-nancy in such a devise or bequest to her title to dower. Besides, the right to dower being in itself a clear legal right, an intent to exclude that right by a voluntary gift ought to be demonstrated either by express words or by clear and manifest implication. In order to exclude it, the instrument itself ought to contain some provision inconsistent with the operation of such legal right.” - (§ 1088.) In the case of Herbert and others v. Wren and others, 7 Cranch, 378, Judge Marshall says, “It is a maxim-of a court of equity not to permit the same person to hold under and against a will. If, therefore, it be manifest, from the facé of the will, that the testator did not intend the provision it contains for his widow to be in addition to dower, but to be' in lieu of it; if his intention, discovered in other parts of the will, must be defeated by the allotment of dower to the widow, she must renounce either her dower, or the benefit she claims under the will. But if the two provisions may stahd well together, if it may fairly be presumed that the testator intended the devise or bequest to his wife as additional td her dower, then she may hold both.” In that case, on the will itself, the court determined that the testator did not intend the provision made for his wife to be additional to her dower, and she was not permitted to hold both.

This court would have been aided in its deliberations, if the parties had put the inventory and appraisement of the estate in the bill of exceptions, that it might plainly appear what proportion the personalty bequeathed to the wife bore to the whole estate. But, notwithstanding this omission, the record furnishes some guide on this subject, and satisfies us that the dower given by law did not greatly, if any, exceed the provision made by the w;ill. The family residence is devised to the wife, with a portion of the adjoining farm; the testator evidently contemplating that his widow would carry on the business of farming after his death. Now the particularity with which he specifies the number of each kind of stock, and the various kinds of implements of husbandry, is entirely inconsistent with the idea that she should have any others than those enumerated.' Such an enumeration was entirely unnecessary if she. was to have any more than what was enumerated. The statute giving dower in personalty says it is in the personal estate. The testator, therefore, seems to hare given a' share in every part of it when he did not give the whole. No one acquainted with the modes of thinking and doing business prevailing among the people of Missouri would ever say that the testator, in the will before us, intended that the widow should take both her dower and the provision made for her by the will out of the personal estate. Our statute declares that all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true intent and meaning of the testator in all matters brought before them.

The facts of this case present one of election on the part of the defendants. Story says (§ 1076) “If a testator should devise an estate belonging to his son or heir at law to a third person, and should in the same will bequeath to ,his son or heir at law a legacy of one hundred thousand dollars, or should make him the residuary devisee of all-his estate, real, personal and mixed, it would be manifest that the testator intended' that the son or heir should not take both to the exclusion of the other devisee; and therefore he ought to be put to his election which he would take; that is, either to relinquish his own estate or the bequest under the will.” This would be a case of implied or constructive election. The facts of the present case bring it clearly within the principle stated. The testator devised a slave belonging to the children of his former wife to the plaintiff and made those children his residuary legatees. Now those legatees can not take under the will and against it. If they will take the legacy, they must renounce the slave bequeathed to the wife. The testator did not intend that they should take both to the exclusion of his wife. They must, therefore, be put to their election either to give up the slave, or to hold their legacy of the residue of the estate subject to the claim of the wife for the value of the slave. (Story’s Eq. § 1082, 3, 4.) As this proceeding was not prepared with an eye to any such relief, the judgment will be reversed at the costs of the plaintiff, and tlie cause remanded that the petition may be amended, if the plaintiff desires to do so.

Judge Napton concurring,

judgment reversed and cause remanded.