265 Mo. 511 | Mo. | 1915
On March 20, 1912, plaintiff filed in the circuit court’ of Jasper county her petition containing. two counts. The second count was thereafter dismissed. Personal service was had on defendant Conqueror Trust Company, as administrator with the will annexed of the estate of Charles E. Wood, de
We have adopted appellant’s statement of the case, which reads as follows:
“The petition alleges that plaintiff is the owner in fee of an undivided one-fourth of certain real estate therein described, situated in Jasper county, Missouri,' and that defendants claim some title, estate or interest therein, adverse to the estate and title of plaintiff, and asks the court to try, ascertain and adjudge the title and interest of plaintiff and defendants, respectively, therein.
“At the time of his death, February 17, 1908, Charles E. Wood was the owner in fee of an undivided one-half of said real estate. He died testate. At the time of making his will, August 27, 1907, and thereafter continuously until his death, he was a resident of and domiciled in the District of Columbia, U. S. A. Plaintiff is his widow and resided with her husband until his death, and has since continued to reside in the District of Columbia.
“The will of Charles E. Wood gives to the widow $35,000 in cash, and also to his trustee $200,000 to be by it invested and the income therefrom paid to the widow in equal quarter annual installments during her natural life, and upon her death the principal thereof to revert to his estate. There was also given to the widow absolutely their residence property in Washington, I). C., and all the household furniture, goods and chattels therein contained. There was also devised to the trustee named in the will two parcels of real" estate in Lebanon, Ohio, in trust for the use and benefit of the widow for her natural life, she to receive the rents, issues and profits thereof, with power in her to dispose of the real estate by will. These are the only provisions for the widow made in and by the will. The will then' bequeaths to relatives, friends and
“On May 28, 1908, this will was duly probated in the District of Columbia, and administration then and there duly granted on the estate of deceased. A duly authenticated copy of said will and of the original probate thereof was duly filed, recorded and probated in the probate court of Jasper county, Missouri, on March 15, 1911, and the same, together with probate thereof, was on March 18, 1911, recorded in the recorder’s office in said Jasper county.
“Said Charles E. Wood died without issue or the descendants of issue surviving him capable of inheriting. Defendant, Conqueror Trust Company, was appointed administrator with the will annexed by the probate court of said Jasper county, and thereafter on July 22, 1911, served upon the-plaintiff notice that the real estate above mentioned was included in its inventory filed in the matter of the estate of said deceased, and of the provisions of sections 345, 351, 352, 353, 355, 360 and 361 of the Revised Statutes of Missouri for 1909. On September 9, 1911, the plaintiff filed in the probate court of said Jasper county her certificate of election to take under section 351 of said Revised Statutes, her dower in said real estate absolutely, subject to the payment of the debts of deceased, and declared that she would not accept the provisions made for her in said will in lieu of her dower interest in said real estate under the provisions of said section. Said certificate of election appears in the printed record,
“At all times from and after the date of the execution of said will, the statute or code law of the District of Columbia relating to wills and the interpretation thereof, the widow’s dower rights and election or renunciation rights relating thereto, were embodied in the sections appearing in the printed record, and were substantially as follows:
“Every devise of land or any estate therein, or bequest of personal estate to the wife of the testator, shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will.
“A widow shall be barred of her right of dower in the land by any such devise or bequest, unless within six months after administration granted on her husband’s estate she file a written renunciation. By renouncing all claim to a bequest of personal property made her by the will of her husband she shall be entitled to one-third part of his personal estate which shall remain after payment of his debts.
“If the will devise and bequeath a part of both real and personal estate to the wife, she shall renounce the whole or be otherwise barred of her right to both real and personal estate.
‘ ‘ If the will devise only a part of the real estate, or bequeath only a part of the personal estate, the devise or bequest shall bar her of only the real or personal estate, as the case may require; provided, if the devise of both or either be expressly in lieu of her legal share of one or both, she shall accordingly be barred unless she renounce as aforesaid.
“Plaintiff never at any time filed in any court in the District of Columbia a written renunciation of her rights under said will, or any election to take under the law in lieu of the provisions of said will. She has received and holds and enjoys all the provisions of said
“As between the plaintiff and all defendants who appeared in answer the facts are admitted, and as against the defendants not answering, full proof was made. The only question is whether, under the undisputed facts, plaintiff is the owner of an undivided one-fourth interest in the real estate, being one-half of the interest owned by her husband at the time of his death, subject to the payment of his debts, or whether the provisions of the will in her behalf under the conditions stated, deprive her of her right of dower in Missouri, and require her to elect in what form she will take her dower, under our statutes.”
The real purpose of this action is to recover dower in the real estate located at Joplin, Missouri, described in the petition. On August 27, 1907, plaintiff’s husband, Charles E. Wood, while a resident of the District of Columbia, made a will, in which he gave to plaintiff $35,000 in cash, and also to his. trustee $200,-000 to be by it invested and the income paid during her life. There- was also given to plaintiff absolutely their residence property, located in Washington, D. C., with all the household furniture, goods and chattels therein contained. There was also devised to the American Security & Trust Company, trustee named in said will, two parcels of real estate in Lebanon,' Ohio, in trust for the use and benefit of plaintiff, for her natural life, she to receive the rents, issues and profits thereof, with power in hear to dispose of said property by will.
The foregoing are the only provisions made for plaintiff in said will. Testator died, while a resident of Washington, D. C., on February 17, 1908, without issue, or the descendants of issue surviving him capable
She filed her election on September 9, 1911, in the probate court of Jasper county, Missouri, electing to take one-half of the real estate of her said, husband in this State, under section 351, Eevised Statutes 1909. Said written election also contains the following:
“And I, the said widow, do hereby further declare, under section 361 of said statutes, that I will not accept the provisions made for me in the said will of my late husband in lieu of my right of dower herein claimed under the provisions of said section 351 of said statutes.”
On May 8,1908, said will was duly probated in the District of Columbia, and administration duly granted there on the estate of deceased. On March 15', 1911, a duly authenticated copy of said will and of the original probate thereof, were duly filed, recorded and probated in the probate court of Jasper county, Missouri, and on March 18,1911, was recorded in the recorder’s office of said county.
Plaintiff never at any time filed in any court in the District of Columbia a written renunciation of her rights under said will, or any election to take under the law in lieu of the provisions of said will. She has received, holds and enjoys all the provisions of said will in her behalf, to-wit, the homestead in Washington with all furniture, etc., $35,000 in cash, and the income from the trust fund of $200,000 and from the Lebanon, Ohio, real estate.
It is contended by plaintiff that she can hold that which was given her under the will in the District of Columbia and in the State of Ohio, repudiate the will in Missouri, and hold as her dower one-fourth of the real estate in Missouri, under section 351, Eevised Statutes 1909, subject to the payment of decedent’s debts.
Sections 350 and 351. Revised Statutes 1909. read as follows:
Section 350: “When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging- to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts.”
Section 351: “"When the ' husband shall die without any child or other-descendants in being, capable of inheriting, his widow shall be entitled : . . . second, to one-half .the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband’s debts.”
On June 1, 1915, Woodson, J., of Division One, handed down an opinion in the case of C. Purdy Lindsley, Appellant, v. Mabel Patterson et al., Respondents, in case numbered 17,283, brought here by appeal from the St. Louis Circuit Court, in which he has very clearly and forcefully sustained the contention of respondents in this case.
In the above case, it appears that Mrs. Lindsley died July 19, 1908, testate in the State of Connecticut, where she died and the plaintiff then lived. The devisees mentioned in said will were deceased’s brothers and sisters and their children, her husband, the plaintiff, and Mabel Patterson, an alleged adopted daughter. The will mentioned in the above case was executed at' New Haven, Connecticut. Plaintiff was appointed
Plaintiff accepted the provisions of the will, in respect to the property situate in Connecticut, and administered the estate there located according to the laws thereof. He accepted and continued to enjoy the bequests given to him by the will,- and disbursed the bequests which were given to the other devisees by the will. But when it came to the Missouri real estate left by his wife, he formally renounced the will and elected to take one-half of his wife’s real estate, in Missouri, absolutely in fee, as provided by section 350, heretofore set out. His renunciation was filed here in time. After reviewing the facts and law of the case fully, Judge Woodson concluded his opinion on this subject, in which all the judges of this division concurred, as follows:
“We are, therefore, of the opinion that the plaintiff having accepted the bequests given to him by the' will, as regards the Connecticut property, will not be allowed to repudiate it in this State and elect to take one-half of the estate as his absolute property under section 350, Revised Statutes 1909.”
The construction placed upon section 351, Revised Statutes 190-9, in the above case is equally as applicable to section 350 of said article. Unless there- is some provision in the District of Columbia law which takes it out of the rule announced in the foregoing case, we have no disposition to disturb the conclusion reached in the latter.
Sections 1172, 1173 and 1176 of the District of Columbia statute relating to this subject read as follows:
‘ ‘ Sec. 1173. A widow shall be barred of her right of dower in land or share in the personal estate by any such devise or bequest, unless within six months after administration may be granted on her husband’s estate she shall file in the probate court a written renunciation to the following effect,” etc.
“Sec. 1176. If, in fact, nothing shall pass by such devise, she shall not be thereby barred, whether she shall or shall not renounce as aforesaid, it being the intent hereof that a widow accepting or abiding by a devise in lieu of her legal right, shall be considered a purchaser with a fair consideration.”
These sections are plain, unambiguous, and clearly bring the case within the rule laid down in the Lindsley case, supra.
II. Appellant contends that her rights in respect to the Joplin real estate should be determined under the Missouri statutes, without any reference to the laws of the District of Columbia. It is then . insisted m her behalf that as she renounced the will in this State, as provided in section 360, Eevised Statutes 1909 of Missouri, she is entitled to take the undivided one-half of her husband’s interest in the Joplin real estate, absolutely, subject to the payment of her husband’s debts.
Section 360, Eevised Statutes 1909, and section 1172 of the District of Columbia statute, placed in juxtaposition, read as follows:
Section 1172 (D. C.): “Every devise of land or of any interest therein, or bequest of personal estate to the wife of the testator, shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will. ’ ’
The will in controversy contains no language tending to show that the bequests to plaintiff in the above will were not intended to be in lieu of dower. Section 1173 of the District of Columbia statute required plaintiff to file her written renunciation of said will in the probate court of said district, within six months after the administration was granted on her husband’s estate. It is conceded that no renunciation of the will was ever filed in the District of Columbia. It stands conceded therefore as a matter of law, that the testator, Charles E. Wood, in the execution of his will, intended that the real and personal property given plaintiff by said instrument should be in lieu of dower in all of his real estate situate in this State.
Section 583, Revised Statutes of Missouri of 1909, provides that:
“All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in ¿11 matters brought before them.”
Appellant, having accepted and since enjoyed the property given to her by the will — without having 'filed in the District of Columbia any renunciation of the provisions of said will — has no standing in court,
III. Plaintiff, having failed to file in the District of Columbia a written renunciation of the provisions of the will in her behalf, could not hold on to the money and other property received by her under the ‘will, and repudiate that portion of the will covering the Missouri land, by simply filing in the probate court of Jasper county, Missouri, her written declaration that she claimed dower in the Missouri land under section 351, Revised Statutes 1909.
It is a fundamental principle of law that one who accepts a beneficial interest under a will thereby adopts the whole will, and renounces every right or claim that is inconsistent with the will. This is a principle of universal application, and it extends so far that, when a testator in his will disposes of property which belongs to a third party, and at the same time makes provision for that third party in his will, the party whose property is so wrongfully disposed of cannot accept the provision made for her in the will, without allowing her property to be disposed of as the wall provides. [Lindsley v. Patterson (not to be reported); Hines v. Hines, 243 Mo. l. c. 497; Tower v. Improvement Co., 192 Mo. l. c. 393-4; Stone v. Cook, 179 Mo. l. c. 540 et seq.; Fox v. Windes, 127 Mo. l. c. 511 and following; Schorr v. Etling, 124 Mo. l. c. 47-8; Pemberton v. Pemberton, 29 Mo. l. c. 414; Beavers v. Bank, 177 Mo. App. l. c. 105-6; Cobb v. Macfarland, 87 Neb. l. c. 411; Utermehle v. Norment, 197 U. S. l. c. 57, and cases cited; Knut’s Guardian v. Knut, 162 Ky. 398; Brossenne v. Schmitt, 91 Ky. 465; Bains v. Bank, 136 Ky. l. c. 335; DeVitto v. Harvey, 262 Ill. l. c. 71, and cases cited; Fry v. Morrison, 159 Ill. l. c. 252; Knox v. Laird, 92 Ga. l. c. 129; Jennings v. Jennings, 21 Ohio St. l. c. 79; Beetson v. Stoops, 186 N. Y. 456; Lee v.
The District of Columbia statute and our own law upon the same subject are substantially alike in providing that where real estate is devised by will to the wife it shall be construed to be in lieu of dower. If her rights be determined under either the law of Missouri or that of the District of Columbia, it required her to renounce the will as a whole, if she saw fit to take that which the statute gives, in lieu of the provisions contained in the will. Plaintiff, having accepted and still holding the money and property given to her by the will, is not entitled to any portion of the real estate described in the petition.
IY. The will under consideration shows on its face that testator made ample provision for his wife, and provided that her interests in his property were to be fully protected, and considered paramount to those of all others. He made various bequests to his friends and relatives. He declared in the will that it was his intention to have it operate upon all property, real, personal and mixed, of which he might be seized and possessed at the date of his death, as well as that which he owned at the time of executing said will. He authorized and em-,
He thereupon named the American Security & Trust Company, a business corporation of Washington, D. C., as sole executor of said will and trustee thereunder, with full power to carry out the provisions of the several trusts set forth and declared, authorizing and empowering said trustee, in its discretion, to sell any and all of Ms real estate, except that granted, and devised specifically, to convey the same to the purchaser or purchasers thereof, and to make, execute and deliver all deeds, conveyances and transfers of the same, without the intervention or order of any court.
The will provides that after the legacies are taken care of, the balance of his estate shall pass to said trustee for the purpose of erecting and maintaining a sanitarium at or near Atlantic City, New Jersey. Subject to the payment of the specific legacies, the Missouri land in controversy here was conveyed to said • trustee, and authority given it to sell said real estate and use the proceeds thereof in the erection and maintenance of said sanitarium.
The plaintiff, therefore, occupies the position of claiming and having received, $35,000 in cash, the income from the trust fund of $200,000, the homestead in Washington, D. C., and the income from the real estate at Lebanon, OMo, and is now seeking to appropriate one-half of her husband’s interest in the Missouri land, which he conveyed to said trustee by the
As held by Judge Woodson in the Lindsley-Patterson case supra, if she desired to take a dower interest in her husband’s Missouri lands, she should have filed a timely renunciation of the will as a whole, in the probate court of the District of Columbia. She failed to renounce the will as a whole; is still claiming valuable property rights thereunder, and hence is not entitled to recover any part of the real estate in controversy.
V. Upon a full consideration of the whole case, we are of the opinion that appellant is not entitled to dower in the real estate described in the petition.
The judgment below is accordingly affirmed. Brown, C., concurs.
The foregoing opinion of Railey, 0., is adopted as the opinion of the court.
