61 Mo. 370 | Mo. | 1875
delivered the opinion of the court.
This was an action of ejectment to recover a lot in the town of Cuba. The following facts appeared at the trial: Theo. A. Browning owned the lot in controversy, and died in 1864, without issue. His estate was administered by one "W. H. Bid cock. This administrator appeared in the probate court, asking the court, under the fifteenth section of article 6, (Wagn. Stat., 113) to dispense with further administration, and hand over to the widow the lot in question, which was all the estate Browning had. This order is as follows : “Now, on this day comes W. H. Pidcock, administrator of said estate, and files his petition, verified by affidavit, stating among other things,'that there are no debts against said estate, that the same have all been fully paid, and there is not sufficient personal estate for the payment of the widow’s absolute dower, and that said deceased died seized of the following described real estate, to-wit: lot No. 1, in block 24,
Mrs. Browning then assuming doubtless that this order conveyed to her an absolute title, executed a deed for the same, in consideration of $95, to one Amsden, and Amsden conveyed to defendant, who went into possession and built a house on the lot.
The plaintiff’s title was derived from deeds made by Browning’s brothers and sisters and mother, who were his heirs, and the deeds are conceded to be valid in all respects.
The court decided the case for the plaintiff. It is hardly worth while to recite the instructions.
The whole difficulty, or rather the monstrous injustice of this case as it stands, grows out of a mistake of the probate court, who supposed that the 15th section of the 8th article, of our administration law, applied to real estate as well as personal.
Mrs. Browning was in this way misled, and of course, under the impression that this order gave her a complete title, did not even avail herself of the privilege, which the statute gives her, of electing one-half of the estate. She is then thrown back upon her dower, as at common law, and provided for under the first section of the dower law. She has not parted with that — indeed the authorities agree that she cannot sell this until after assignment. But the title of the plaintiff, from the heirs of Browning, is complete. His widow’s right to dower must be asserted in another shape, and is no defense to the suit.
Judgment affirmed.
