Register v. Hensley, 70 Mo. 189

70 Mo. 189 | Mo. | 1879

Norton, J. —

This was an action of ejectment to recover from defendants a tract of land ■ in Buchanan county, in the State of Missouri. The petition is in the usual form. Defendants answered, putting in a general denial. The case was tried on an agreed statement of facts, which is as follows:

That prior to October, 1874, Francis Register was the owner in fee simple of the land in .controversy, and lived on the same, having his dwelling house there; that prior to that time he had married one Matilda Hensley, who survived him as his widow; that in October, 1874, said Register died, leaving plaintiffs, who were adults and married, as his only children by a former wife; that said deceased left a will, by which he devised to-his wife, Matilda, for and during. her natural life, the land in controversy j also, as her absolute property, a large amount of personal property worth' $400, and all the balance of his property he devised to plaintiffs; that in the month of October, 1874, said will was duly proved up, and letters of admin*193istration, with the will annexed, were granted by the probate court of the proper county in October, 1874, to one John C. Register; that the personal property under the will, which was devised to his wife, was immediately turned over to her, and which she never returned or offered to-return to the administrator, or any one else; that in August, 1875, said widow, in due form of law, executed an instrument in writing, which was filed in the probate court of Buchanan county, in which court said letters had issued, renouncing all the provisions of said will in her favor; that in August, 1875, after such renunciation, she petitioned the probate court of Buchanan county, aforesaid, to set apart her homestead and dower in the real estate of her husband; that her husband had died seized and possessed of 240 acres of land in said Buchanan county; that said probate court, upon said petition, appointed commissioners to set off to said widow her homestead and dower in said lands, who set off the land in controversy as the homestead of said widow, valued at $1,500, and reported that she was not entitled to dower in the balance of the land of the deceased, as the land in controversy was worth one-third as much as all the balance of said lands; that neither the petition of the widow, the order of appointment nor report .of the commissioners, nor the order of the court made in the premises, discloses whether the widow claimed or owned, or was to occupy the said homestead for life or in fee; that said widow occupied the land so set apart to her as her homestead from August, 1875, to about November, 1875, when she died intestate, leaving as her only heirs the defendants, who were living with her on said land at her death, and who still occupy the same, claiming no right in the land except the interest said widow had in it; that before this suit was commenced, plaintiffs gave defendants more than three months notice to give them possession of said land; that the rents and profits of the land, since the death of said widow, are reasonably worth $100 per annum, and still are worth the same.

*194Upon the foregoing facts the court rendered judgment for the defendants, from which the plaintiffs have appealed to this court.

1: homestead : effect of change of statute: widow’s rennunciation of husband's will. The main question which the facts agreed upon present is, whether the estate of Mrs. Register in the land sued for is to be measured by the law governing homesteads in existence at the time of the death of her husband, Francis Register, which occurred in October, 1874, or by the act amending the homestead law passed March 18th, 1875. (Acts 1875, p. 60.) The law as it existed when Francis Register died vested in his widow the same estate in the homestead of which he was seized at the time of his death. The act of March, 1875, so amended the homestead law as to vest in the widow only a life estate in the homestead of which the husband died seized. "We are of the opinion that the estate taken by Mrs. Register in the homestead' is to be governed by the law in force at the time of the death of her husband, and as he died seized of a fee simple estate, that she took the fee. The fact that she did not make her election and renounce the provisions of the will till after the act of March, 1875, was passed, such election hawing been made within twelve months after probate of the will, did not affect her right to take such estate as the law in existence at the time of her husband’s death invested her with. The will would have that effect only in the event that she did not renounce the provisions made theirein within the time prescribed by law for making and filing such renunciation. Nor could the act of March, 1875, have the effect of changing or altering the estate vested in her at the time of her husband’s death. Her right in the . homestead accrued at the death of her husband, and the Legislature could as well take away her right altogether as reduce it from a fee simple to a life estate. Burke v. Barron, 8 Iowa 134; Russell v. Rumsey, 35 Ill. 374; Rid dick v. Walsh, 15 Mo. 537. In the latter case Judge Scott observed : “ Every estate within our knowledge has been *195administered upon the supposition that the law existing at the time of the dissolution of the contract by death, regulates the right of the widow.”

2. widow.’s allowance: renunciation of will. It is insisted that the circumstance of the widow receiving $400 worth of personal property, before she filed renunciation of the will, and which she aid not return, amounts to an election to take under the will. In Wag. Stat., § 35, p. 88, it is provided that the widow may take such personal property as she may choose, not to exceed the appraised value of $400. Mrs. Register was, therefore, entitled, under the law, to personal property of precisely the same value as that which she received, and when she renounced the provisions of the will her right to it became absolute under the law, and the mere fact of her not returning the property to the administrator could not have the effect of defeating her election to take under the law instead of under the will, especially when according to the agreed statement of facts she did, in fact, renounce all the provisions of the will, and when, if the property had been returned to the administrator she would have, under the law, the right to have demanded of the administrator its immediate restoration to herself. Had Mrs. Register accepted ■ all the provisions, notwithstanding such acceptance her right to renounce the provisions of the will within twelve months after its probate, would still remain. This was expressly decided in the case of Bretz v Matney, Ex’r., 60 Mo. 444. Judgment affirmed,

in which all concur.