11 S.W. 225 (Mo. 1888), Rockhey v. Rockhey

• Citation: 11 S.W. 225,97 Mo. 76
• Docket Number: .
• Date: 01 October 1888
• Parties: Rockhey, Appellant, v. Rockhey et al
• Court: Missouri Supreme Court

Page 225

11 S.W. 225 (Mo. 1888)

97 Mo. 76

Rockhey, Appellant,

v.

Rockhey et al

Supreme Court of Missouri

October 1, 1888

Appeal from Grundy Circuit Court. -- Hon. G. D. Burgess, Judge.

Reversed and remanded.

Geo. Hall for appellant.

(1) The homestead right provided by Revised Statutes, 1879, section 2693, became an absolute and vested right upon the death of the husband, unaffected by Revised Statutes, 1879, section 2199. It is a right that the statute places beyond the power of the testator to affect by will, and requires no act of election or renunciation on the part of plaintiff. R. S. 1879 sec. 2693; Gregg v. Gregg, 65 Mo. 343; Kaess v. Gross, 92 Mo. 647. (2) The testator does not attempt to restrict the plaintiff's homestead right by the provisions of the will, but expressly recognizes the same and says she shall have the privilege of residing on the homestead, which must be construed to mean the homestead as provided by the statute. The homestead right and dower right are separate and distinct rights. The will could affect the dower right only. The statutes of Missouri place the homestead beyond a devise by the husband. R. S. 1879, secs. 2199, 2693, 2694; Gregg v. Gregg, 65 Mo. 343; Bates v. Bates, 97 Mass. 392; Doane v. Doane, 23 Vt. 650.

P. C. Stepp and J. H. Shanklin for respondents.

(1) It is admitted that the husband cannot, by devise, deprive the wife of her estate of homestead any more than he can, by the same means, cut off the wife's dower. Here the right of dower and homestead are parallel, and the doctrine of election applicable to dower is equally applicable to homestead. If the terms of the will express a clear intention that the bequests are made in lieu of homestead, then the widow will be put to her election whether she will have her homestead or take the bequests in the will. Thompson on Homesteads, sec. 544. (2) The rights under the will and that confirmed by the homestead law were repugnant to each other and the widow had to repudiate the one or the other. Davidson v. Davis, 86 Mo. 440; Register v. Hensley, 70 Mo. 189; Thompson on Homesteads, sec. 544. (3) The widow having failed to renounce the provisions of the will and having accepted four installments in money and having for more than three years resided on the homestead, all according to the provisions of the will, she was estopped from asserting any right of homestead, as it was clearly the intention of the testator that the bequests made...