19 Mo. 469 | Mo. | 1854
delivered the opinion of the court.
This is a suit for the partition of the real estate of John Perry, deceased, begun by the respondents, Eliza M. Perry and others, his widow and a portion of his heirs, against the appellants, John T. Perry and others, heirs, and the representatives of the interest of the heirs of the deceased. John Perry died on the 4th day of September, 1850, without children, leaving the plaintiff, Eliza M. Perry, his widow, who claims, as her dower in the real estate sought to be divided, one undivided half of it, absolutely.
The defendants, by way of answer to the claim of the plaintiff, Eliza M. Perry, for dower in the premises sought to be divided, set up the fact, that on the 8th day of April, 1835, John Perry, during his marriage with the plaintiff, his widow, settled on her, as a jointure, a lot in the city of St. Louis, worth $1736, on which he afterwards expended upwards of $12,000 in lasting improvements ; that this settlement, at its date, was a reasonable share of the estate of the said Perry,
Independent of the consideration arising from the express language of the act concerning dower, authority is not wanted in support of the claim of the plaintiff, under the circumstances of this case, and as dower is favored in law, in a matter of doubt, the decision should be in favor of the widow. The fact that Perry was childless would always be regarded as a circumstance of much weight, in ascertaining the intent with which the provision was made for his wife. Swaine v. Perrine, 5 J. Chan. Rep. 488.
It has not been made a question whether a post-nuptial provision, like an ante-nuptial .one, should be expressed to be in discharge of dower. There seems indeed, no ground on which
The 10th section of the act concerning dower furnishes no rule by analogy which should affect this controversy. That section was introduced, with a view similar to that which dictated the 12th section. Its object was, to prevent all litigation respecting the question whether a devise by the husband to his wife, would be regarded as a satisfaction for dower, which had given rise to many suits. It would be against all principle, to make that section, the object of which was, the prevention of litigation, unsettle another provision, the aim of which was the same. There is nothing in the case of Logan v. Phillips, 18 Mo. Rep., which affects the question now before the court. There, the settlement was expressed to be in lieu of dower.
the judgment of the court below will be affirmed.