Burgess v. Bowles
| Decision Date | 04 November 1889 |
| Citation | 12 S.W. 341,99 Mo. 543 |
| Parties | Burgess et al. v. Bowles, Plaintiff in Error |
| Court | Missouri Supreme Court |
October, 1889
Rehearing Denied 99 Mo. 543 at 548.
Error to Lincoln Circuit Court. -- Hon. Elijah Robinson, Judge.
Reversed and remanded.
Smith Silver & Brown with R. H. Norton for plaintiff in error.
(1) The principal question presented for consideration by the record in this case is whether the defendant has a homestead in the land in question notwithstanding her husband's will. The homestead is excepted by act of the law of devises. The husband's will must yield to the will of the legislature. The wife cannot be put aside by the will of her husband to her election of a homestead. She can take both under the will and under the law. Kaes v. Gross, 92 Mo. 648, overruling Davidson v. Davis, 86 Mo. 440; Meech v. Meech, 37 Vt. 419; Aiken v. Geyer, 52 Ga. 407. At the death of Vaden Giles the homestead right was vested in his widow, who is the defendant. Kelsay v. Frazier, 78 Mo. 111; Freemel v. McCall, 73 Mo. 343. The will devises the land in question to the defendant during her widowhood. This could not be construed to be in lieu of dower or other interest in the land. It is an established principle that a provision in the will of the husband in favor of the wife will never be construed by implication to be in lieu of dower or other interest in his estate given by law. The design to institute the one for the other must be unequivocally expressed. Hasenritter v. Hasenritter, 77 Mo. 163; Bryant v. McClure, 49 Mo. 546; Shelden v. Bliss, 8 N.Y. 31. The statute provides that if the testator pass any real estate by will to his wife such devise shall be in lieu of dower out of the real estate of her husband, whereof he died seized unless otherwise declared in the will. R. S., sec. 2199. This statutory provision changes the rule of the common law. Hastings v. Meyers, 21 Mo. 519. But as we have seen it is the settled law of this state that a homestead is excepted out of the law of devise. 92 Mo. 648, supra. The statutory rule alluded to has no application here, hence it must needs follow that in any view the devise to the defendant under the will did not affect her homestead right. The defendant, it seems, has by the provisions of the will no dower in the real estate in question, but her homestead remains unaffected by its provisions. (2) The evidence introduced by the plaintiffs over the objections of defendant was inadmissible. R. S., sec. 3962. This evidence in no way tended to impair the homestead rights of the defendant and was, therefore, irrelevant. Kaes v. Gross, 92 Mo. 648.
Martin & Avery and Dunn & Colbert, for defendants in error.
(1) Did Vaden Giles have a homestead in the premises? It may be inferred that he occupied the land from the date of his purchase, March 19, 1872, to his death in May, 1872, say two months. Was this occupancy, without any declaration on his part, and without title, sufficient to impress the lands with the character and designation of a home or homestead? Jackson v. Bowles, 67 Mo. 609. (2) The defendant, under the will, took a different estate from that she would take under the law, and failing to renounce the will must take under it. Register v. Hensley, 70 Mo. 189; Davidson v. Davis, 86 Mo. 440; Daudt v. Music, 9 Mo.App. 169. The homestead law under which the defendant claims is copied from the Vermont statute, and with the construction placed upon it by the supreme court of that state. Skouten v. Wood, 57 Mo. 380. In that state it was ruled that the doctrine of election applies to homestead as well as dower. Meech v. Meech, 37 Vt. 414. When the husband devises his whole estate to his wife, as in this case, she is presumed to claim under the will, and waive her homestead if she fails to renounce the will. Taylor v. Loller, 3 S.W. (Ky.) 165; Thompson's Homestead, sec. 544; Appeal of Kline, 11 A. 866; Estate of Gatzian, 57 Am. Rep. (Minn.) 43. The case of Kaes v. Gross, 92 Mo. 648, does not overrule Davidson v. Davis, 86 Mo. 440. Neither is the opinion of Judge Sherwood, or what he says in the case, in conflict with Davidson v. Davis. The facts in the two cases are different. Judge Sherwood's opinion, and what he says in Kaes v. Gross, is undoubtedly correct upon the facts in that case. He was construing the homestead law of 1875 (Acts of 1875, page 60, section 1), which amended section 5 of the homestead law of 1865, by limiting the homestead of the widow to a life estate and excepting that estate out of the law of devises, and this exception, as found first in this amendment, is the basis of his opinion. There is no such exception in the laws of 1865 under which the case of Davidson v. Davis was decided. The case at bar is governed by the homestead law of 1865, as Vaden Giles died in 1872. Register v. Hensley, 70 Mo. 189. (3) The statute referred to in the brief of the plaintiff in error (R. S. 1879, sec. 3962) has no application or bearing whatever upon the question of the admission of the evidence objected to.
-- Vaden Giles died in 1872, leaving a will as follows:
Plaintiffs are his children. Defendant was his widow. In 1875 she married Bowles.
After defendant's marriage this action of ejectment was brought. The land in question was bought by Giles and partly paid for during his lifetime. He resided on it with the defendant at the time he died and for several months before.
The deed to him as grantee was delivered to defendant after his death. As both parties claim through him as owner, there will be no need to consider any other question of title, on the facts disclosed, than that hereinafter discussed.
For the purposes of this case, the land must be regarded as the homestead of...
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