163 Mo. 33 | Mo. | 1901
This is an action of ejectment for certain lands in Carroll county. Henry Knipschild is the admitted common source of title.
“Henry Knipschild died on the twenty-eighth day of August, 1874, leaving the following will, which was duly probated October 1,- 1874:
“ T, Henry Knipschild, make this my last will and testament. I desire that my wife Elizabeth, after my death, shall have all my property, real and personal, for her lifetime, and that after her death all shall go to my son, George, provided he is of legal age. I appoint John Stenam, executor of this my will. Henry Knipschild, attested August 28,1874.’
“Henry Knipschild left as his widow, Elizabeth Knipschild, and as his son and only heir at law, George Knipschild. At the time of his death he owned the real estate described in the petition. The son, George Knipschild, afterwards married the plaintiff, Melissa Von Arb. Said Georg,e Knipschild died intestate, and without issue, on the twenty-second day of July, 1875, five days before arriving at the age of twenty-one years, and left the said Melissa, his widow, who afterwards married the co-plaintiff, George Von Arb, and is now his wife. Elizabeth Knipschild, the widow of Henry Knipschild, the ancestor, remained in possession of the real estate in controversy from the death of her husband, Henry Knipschild, up to the time of her death, which occurred on the sixth day of November, 1894; the defendant, John Thomas, was the tenant of Elizabeth Knipschild in possession of the premises at the time of her death on said sixth day of November, 1894, and is still in possession as tenant of John Coggburn, her administrator. Letters of administration were issued to Thomas Orchard on the second day of May, 1895, as administrator of the estate of George Knipschild, deceased.' The two years required by law for keeping open the estate of George-Knipschild have expired, and no assets have come into the hands of the administrator,
'' 'Whereas, George Knipschild died intestate on the eighteenth day of August, 1875, without any child or other descendants capable of inheriting, and leaving Melissa Knipschild his widow; and whereas, at the time of his death the said George Knipschild was the owner of the following described real estate [setting out the description as in petition] and whereas, the mother of said George Knipschild, deceased, had a life estate in said real estate and died on the — day of-, 1894; and whereas, the said Melissa Knipschild and George H. Yon Arb were married on the second day of April, 1875, and are now husband and wife; and whereas, letters of administration were, on the second day of May, 1895, granted to Thomas Orchard, public administrator of said Carroll county, on the estate of said George Knipschild, deceased, by the probate court of Carroll county, Misspuri. Now, therefore, the said Melissa Yon Arb (formerly Melissa Knipschild and widow of George Knipschild deceased), and George H. Yon Arb, her husband, hereby declare that the said Melissa Yon Arb elects to take as the widow of said George Knipschild, deceased, one-half of the real and personal estate belonging to
“Another and similar ‘election’ was filed by said parties in the probate court of Carroll county, Missouri, on the second day of May, 1896, the original of which was filed for record in the office of the recorder of deeds of Carroll county, Missouri, May 2, 1896.
“Defendant Joseph Thomas was in possession of the real estate described- in the petition at the time of the institution of the ejectment suit, and the monthly value of the rents and profits is and has been since the commencement of this suit $15.”
The circuit court found the issues for plaintiff, and defendants within four days filed their motions for a new trial, and in arrest, which were overruled, and they duly excepted and appealed to this court.
In connection with this case, another suit in equity between the heirs of Henry Knipschild and the heirs of Elizabeth, ¡^raying a construction of the will of said Henry, was tried, and the circuit court decreed that the will created a vested remainder in his son, George, and simply postponed the enjoyment thereof until he reached his majority, and that on the death of George, his mother being his only heir at law, inherited this remainder, and she thereby became the owner in fee, and at her death the land descended to her heirs and not to the heirs of Henry Knipschild.
Erom that decree no appeal was taken, and so far the matter is res adjudicata. • ■
The present controversy between the widow of the son, George, now Mrs. Yon Arb, and the heirs of his mother, may be stated in a few words. These heirs maintain that as the life estate of Elizabeth Knipschild intervened, George was never seized in fact or in law of the remainder devised to him in his
I. To entitle the wife to dower at common law, the husband must have immediate seizin of an estate of inheritance. The wife was not entitled to dower in a reversion or remainder expectant upon an intermediate freehold estate, unless that freehold was determined or ended during the coverture. And such is the law of Missouri at this time. [Martin v. Trail, 142 Mo. 85; Gentry v. Woodson, 10 Mo. 225; Payne v. Payne, 119 Mo. 179; 1 Wash. on Real Prop. (5 Ed.), 204.]
Under our statute and the course of decisions independent of statute, the seizin need not be one of actual possession, but seizin in law with a right of possession will suffice. [Davis v. Evans, 102 Mo. 164; Rev. Stats. 1889, see. 4535; 1 Wagner’s Stats. 1872, p. 542, sec. 23.]
As Elizabeth Knipschild had a freehold estate for her life intervening.before the remainder devised to her son George could vest in possession, either in fact or in law, and as he died during the life of his said mother, it is evident the widow of George was not entitled to dower in said lands. [1 Wash. on Real Prop. (5 Ed.), 204; 1 Scribner on Dower (2 Ed.),
II. Mrs. Von Arb having no dower in this land as the widow of George Knipsehild under the first section of the dower act (1 Wagner’s Statutes, p. 538; G. S., ch. 130, sec. 1), could she elect either under sections 5, 8 and 10, 1 Wagner’s Statutes, p. 539, or section 4518, Revised Statutes 1889 ?
It is conceded by - counsel on both sides that this exact proposition has never been decided by this court.
In Payne v. Payne, 119 Mo. loc. cit. 179, this court construed the kindred section (sec. 4523, R. S. 1889), which gives the widow the right to elect to take a child’s part, and held that the election under that section is made and must be made in lieu of dower, “and it follows that if the widow has no dower right in the land, she has no right to elect to take a child’s part.” While learned counsel have argued at length and most ingeniously that the estate which the widow takes by her election is not dower, it is sufficient for us to say the statute in force when her husband died in 1874, as well as the Revised Statutes of 1889, when the administration began, both denominate the estate which she takes by such election as “dower,” and she takes it in either ease in lieu of her common-law dower provided in the first section of the dower act. [Newton v. Newton, 162 Mo. 173.]
She takes as a dowress and not by descent.
In our opinion, as Mrs. Von Arb, as the widow of George Knipsehild, had no common-law dower, she had no basis for her election to take one-half subject to debts in lieu of that dower which she never had.
In Hamilton v. O’Neil, 9 Mo. 11, Judge Scott holds this provision to be “a substitute for her common-law right of dower,” and the Supreme Court of New Hampshire in Hun-
The yielding up of her common-law dower is the consideration, so to speak, for the statutory dower she elects to take.
If she has no common-law dower upon what is her so-called election based ? It seems to us that no elaboration could make it clearer that as she clearly had no common-law dower, she could not elect to be endowed of a half in fee subject to debts.
Having reached this conclusion it becomes unnecessary to determine whether an administration could have lawfully been begun twenty years after the death of George Enipschild for the sole purpose of affording his widow an opportunity to elect to take one-half of his estate, it being admitted he owed no debts and had no estate other than the remainder devised to him by his father.
The judgment is reversed.