51 Mo. 36 | Mo. | 1872
delivered the opinion of the court.
The only question presented for our determination in this case is whether the growing crop of a deceased person goes to the widow or to the executor or administrator. The record shows that William Whaley owned a piece of land, and that in the fall he plowed the same and sowed it in wheat; that in February thereafter he died, and that his executor harvested the wheat and sold the same as assets belonging to the estate. No dower having been assigned, the widow claims all the wheat as her absolute property, and brought her action of trespass against the executor for taking and carrying the same away. The court gave judgment for the defendant.
It is claimed that because the statute says that, until dower be assigned, the widow may remain in and enjoy the mansion-house of her husband, and the messuage or plantation thereto belonging, without being liable to pay any rent for the same (Wagn. Stat. 522, § 21), therefore she is entitled to the crops on the place at the time of her husband’s death. This construction has never been placed upon the statute before, and the practice from the earliest period of the State has been opposed to it.
That the statute intended that the crops or emblements should descend as assets, is clearly inferable from the language employed in the administration law, authorizing the administrator to take care of and bestow labor on the same. (Wagn. Stat. 90, § 52.) As a general rule, emblements or annual crops- growing upon the land of one who dies before they are harvested, go to the personal representatives. (1 Washb. Real Prop., 3d ed., 119; 1 Williams’ Ex. 594.)
By the common law the widow is entitled to the crops growing at the death of her husband, upon that part of the homestead farm
In other States, where similar statutes to ours exist, the point has been decided in accordance with these views. In the case of Budd v. Hiler, 3 Dutch. 43, it was held that crops growing on the homestead farm at the time of the testator’s death, go to the devisee if the land is devised; and if there is no devise of the land, then to the executor of the testator, and not to the widow, who remains in possession until her dower is assigned. (See also Parker v. Parker, 2 Pick. 236; Kaim v. Fisher, 2 Seld. 597.)
I think the court below decided the case rightly, and I advise an affirmance.
Judgment affirmed.