Wood v. Conqueror Trust Co.

• Citation: 178 S.W. 201,265 Mo. 511
• Parties: EURNIE I. WOOD, Appellant, v. CONQUEROR TRUST COMPANY, Administrator of Estate of CHARLES E. WOOD, et al
• Decision Date: 30 June 1915
• Court: United States State Supreme Court of Missouri

178 S.W. 201

265 Mo. 511

EURNIE I. WOOD, Appellant,
v.
CONQUEROR TRUST COMPANY, Administrator of Estate of CHARLES E. WOOD, et al

Supreme Court of Missouri, First Division

June 30, 1915

Appeal from Jasper Circuit Court. -- Hon. David E. Blair, Judge.

Affirmed.

Henry M. Foote, Frank W. Hackett, George J. Grayston and A. E. Spencer for appellant.

(1) The right of dower is highly favored in this State and all doubts are resolved in its favor. Nothing except a plain mandate of the statute or a statutory command deduced by necessary implication will suffice to set dower to one side. Blevins v. Smith, 104 Mo. 588; Donaldson v. Donaldson, 249 Mo. 245; Crisman v. Linderman, 202 Mo. 614. And the widow's right of election is regarded with the same favor. Martien v. Norris, 91 Mo. 465; Brown v. Tucker, 135 Mo.App. 598; Watson v. Watson, 28 Mo. 300; Bretz v. Matney, 60 Mo. 444; Spratt v. Lawson, 176 Mo. 175; Hamilton v. Jones, 155 Mo.App. 490; Coleman v. Coleman, 122 Mo.App. 715; Branford v. Wolfe, 103 Mo. 391; Keeney v. McVoy, 206 Mo. 42. The wife is entitled to dower in Missouri lands without regard to whether the parties are residents or non-residents. Stokes v. O'Fallon, 2 Mo. 32; Thomas v. Woods, 173 F. 585. (2) At common law, the plaintiff would have been entitled to dower in the lands in this State. Schorr v. Etling, 124 Mo. 46; Jarman on Wills (5 Am. Ed. 1881), pp. 458-471; Birmingham v. Kirwan, 2 Schoale and Lefroy, 444; French v. Davies, 2 Ves., Jr. 577; Havens v. Sackett, 15 N.Y. 365; Adsit v. Adsit, 2 John. Ch. 457; Larabee v. Van Alstyne, 1 Johns. 307. (3) The widow's right to dower in her husband's lands, the time and manner of assigning the same, and the causes by which it may be defeated are all determined by the law of the place where the property subject to dower is located. Hines v. Hines, 243 Mo. 494; Applegate v. Smith, 31 Mo. 166; Woerner, Adm., sec. 168, p. 378 and sec. 42, p. 77; Roessle v. Roessle, 142 N.Y.S. 984; Jennings v. Jennings, 21 Ohio St. 56; Apperson v. Bolton, 29 Ark. 418; Thomas v. Woods, 173 F. 585, 97 C. C. A. 535, 26 L. R. A. (N. S.) 1180; Peet v. Peet, 229 Ill. 341; Mort v. Jones, 105 Va. 668; Van Blaricum v. Larson, 130 N.Y.S. 925; Carpenter v. Bell, 96 Tenn. 294; United States v. Fox, 94 U.S. 315; Clark v. Clark, 178 U.S. 186. (4) Under the laws of Missouri plaintiff is entitled to dower in the lands in this State, and her right thereto is not affected by the statutes of the District of Columbia. Jennings v. Jennings, 21 Ohio St. 56; Apperson v. Bolton, 29 Ark. 418; Rannels v. Rowe, 166 F. 425; Roessle v. Roessle, 142 N.Y.S. 984; Stagg v. Atkinson, 144 Mass. 564; Clark v. Clark, 178 U.S. 186; Compher v. Compher, 25 Pa. St. 3. (5) Secs. 360 and 361, R. S. 1909, should be held to apply only to domestic wills. Any other construction would be an injustice to the widow to whom devise was made by a foreign will, because probate of the will in this State could not be compelled and therefore the widow would not be given any opportunity to declare her election under section 361. Jennings v. Jennings, 21 Ohio St. 56; R. S. 1909, secs. 360, 361, 567, 568 and 535.

James R. Caton and Kelsey & Cameron for respondents.

(1) Failure to dissent from will within statutory time amounts to an election to take under the will. Stephens v. Gibbs, 14 Fla. 331; Wilson v. Fridenberg, 21 Fla. 386; Archibald v. Long, 144 Ind. 251; Hastings v. Clifford, 32 Me. 132; Collins v. Carman, 5 Md. 503; Pratt v. Felton, 58 Mass. 174; Brett v. Matney, 60 Mo. 444; Register v. Henssey, 70 Mo. 189; Daugherty v. Barnes, 64 Mo. 159; Waterbery v. Netherlands, 53 Tenn. 512; Noel v. Garnett, 4 Cal. 92; Blunt v. Gee, 5 Cal. 481. Appellant having failed to file her renuciation of the will within the statutory time in the District of Columbia has elected to take under the will. (2) "The doctrine of election as applied to the law of wills simply means that he who takes under a will must conform to all its provisions. He cannot accept a benefit given by the testamentary instrument and evade its burdens. He must either conform to the will or wholly reject and repudiate it." 2 Underhill on Law of Wills, sec. 726, p. 1000; 2 Story, Equity Jurisprudence, sec. 1075; Ball v. Ball, 165 Mo. 312; Graham v. Rosenburgh, 47 Mo. 111. (3) She cannot claim under the will in one State and against it in another. Mary E. Wilber, etc., 52 Wis. 295; Herbert v. Wren, 7 Cranch, 378; In re Bloss Estate, 114 Mich. 204; 11 Am. & Eng. Ency. Law (2 Ed.), p. 113; Apperson v. Bolton, 29 Ark. 429; Washburn v. Van Steenwyk, 32 Minn. 336; Wilson v. Cox, 49 Miss. 538; Garland v. Rowan, 2 Smed. & M. (Miss.) 636; Slaughter v. Garland, 40 Miss. 177; Staigg v. Atkinson, 114 Mass. 564. (4) When the widow has elected to take under the will, she is estopped to claim dower under the law. Washburn v. Van Steenwyk, 32 Minn. 336; Cooke v. Fidelity Co., 104 Ky. 473; Crawford v. Bloss Estate, 114 Mich. 204.

RAILEY, C. Brown, C., concurs.

OPINION

[265 Mo. 514] RAILEY, C.

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, deceased, [265 Mo. 515] and service was obtained on all the other defendants by publication, in due form and under proper order of the court.

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, D. 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 [265 Mo. 516] former employees various sums of money, aggregating approximately $ 320,000. The residue of testator's estate is then given to the defendant, American Security & Trust Company, in trust for the use and benefit of the J. G. Kellogg Sanitarium, of Battle Creek, Michigan, the same to be used by the trustee, under the direction of the beneficiary, in the erection and maintenance of a sanitarium at or near Atlantic City, New Jersey. The trustee and beneficiaries under the will are made defendants herein.

"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...