Kaes v. Gross

• Decision Date: 28 February 1887
• Citation: 3 S.W. 840,92 Mo. 647
• Parties: Kaes et al., Appellants, v. Gross et al
• Court: Missouri Supreme Court

3 S.W. 840

92 Mo. 647

Kaes et al., Appellants, v. Gross et al

Supreme Court of Missouri

February 28, 1887

Appeal from Franklin Circuit Court. -- Hon. A. J. Seay, Judge.

Affirmed.

J. C Kiskaddon for appellants.

(1) A devise of real estate does not deprive a widow of her homestead. Meech v. Meech, 37 Vt. 419; Aikin v Geiger, 52 Ga. 407. (2) The will in the case at bar does not deprive the widow of either dower or homestead. Rose v. McHose, 26 Mo. 590; Richardson v Richardson, 49 Mo. 29; Pierce v. Ridley, 25 Am. Rep. 769; S. C., 1 Baxt. (Tenn.) 145; French v. Davies, 2 Ves. jr. 572; 1 Roper, Hus. and Wife, 587; Ellis v. Lewis, 3 Hare, 300; Pitts v. Snowden, 1 Bro. C. C. 292n; Pearson v. Pearson, 1 Bro. C. C. 292; Foster v. Cook, 3 Bro. C. C. 347; Greatorex v. Carey, 6 Ves. 615; Dawson v. Bell, 1 Keen, 761; Harmson v. Harmson, 1 Keen, 765; Strahan v. Sutter, 3 Ves. 249; Jackson v. Churchill, 7 Cowen, 287; Church v. Ball, 2 Denio, 430; Hamilton v. Buckwalter, 2 Yeates, 389. (3) The widow can only abandon her homestead by acts and declarations constituting an estoppel in pais. Seek v. Haynes, 68 Mo. 13. (4) There is no evidence of any such abandonment in the case at bar. (5) If an administrator pays off a mortgage with the proceeds of administration sale of real estate, the widow is entitled to dower and homestead. Jones v. Bragg, 33 Mo. 337; Atkinson v. Stewart, 46 Mo. 510.

T. A. Lowe for respondents.

(1) The will of Hufschmidt passed the real estate on the corner of St. Louis street and Adelaide avenue to his wife, the appellant, Emilie, and the devise was in lieu of dower therein, unless the testator, by his will, otherwise declared. R. S., sec. 2199; Gant v. Henly, 64 Mo. 162, and authorities cited. The testator did not otherwise declare. (2) And in such case the wife shall not be endowed, unless she shall file her writing in the probate court within the time, and duly executed in the manner provided by law that she will not accept the provisions made for her by such will. R. S., sec. 2200; 1 Bish. on Married Women, sec. 439, p. 307. The appellant, Emilie, did not at any time file any such writing. (3) The wife cannot take both under the law and the will at the same time. Daugherty v. Barnes, 64 Mo. 159; Gant v. Henly, 64 Mo. 162, and authorities cited; Brant's Will, 40 Mo. 277; 1 Bish. on Married Women, secs. 378, 433, 439. Especially where the dower would be inconsistent with the legal effect and operation of the will. 1 Bish on Married Women, sec. 436. And one cannot reject part and adopt part of a will. Ib. sec. 445; Davidson v. Davis, 86 Mo. 440. (4) And whether her election to take under the will barred her of dower or not, she is not entitled to dower, at least until the mortgage lien is discharged, and the respondent's money having redeemed the mortgage, he is entitled to an equitable lien upon the property until she reimburses him. 1 Washburn's Real. Prop. [3 Ed.] p. 216, sub-divs. 21, 22, p. 216, and sub-div. 25, p. 240. (5) The will of Hufschmidt was properly received in evidence. The intent of the testator must be interpreted from the entire scope of the will taken together, from which it is plain in this case that the testator intended the devises of money and the realty to be in lieu of dower. Brant's Will, 40 Mo. loc. cit., 278, and authorities cited. (6) All the money and other personal property had been appropriated by the appellant up to the time that the administrator, with the will annexed, took charge of the estate. The personal estate must first be exhausted, then resort can be had to the real estate. Brant's Will, supra. And if the personalty be appropriated or exhausted and the realty devised for that purpose be insufficient to pay the debts of the deceased, then other real estate devised for other purposes can be sold for the payment of such debts. Shaw v. Nicholay, 30 Mo. 100, cas. cit. 107.

Sherwood J. As to paragraph II., Norton, C. J., expresses no opinion, and he and the other judges concur on all the other points.

OPINION

Sherwood, J.

The object of this suit is the assertion of a homestead and dower right on the part of Emilie Kaes, in certain property in Pacific, Franklin county, Missouri, on the corner of St. Louis street and Adelaide avenue, estimated to be worth from four thousand to six thousand dollars.

The petition was filed April 25, 1883, and the trial occurred May 30, 1884. On June 23, 1874, Gustavus Hufschmidt, with his family, lived on the property in question as his homestead. On the date last mentioned, Hufschmidt and his first wife executed and delivered to Franklin county their school mortgage, conveying said property to secure the payment of the sum of about one thousand dollars. His first wife bore him several children, who, with one exception, are still minors. She died, and on the fourth of August, 1875, Hufschmidt married Emilie, the plaintiff, by whom he had two children, one of whom is yet living; they, the children of the first and second marriages, and Hufschmidt and wife, all continued to live at the homestead, till September, 1879, when Hufschmidt died, having shortly theretofore made his will, as follows:

"1. I give and bequeath to my beloved wife, Emilie L. Hufschmidt, the 'life insurance,' which I have in the orders of the 'Odd Fellows' and 'Free Masons,' in the state of Missouri.

"2. I give and bequeath to my beloved wife, E. L. Hufschmidt, the use and income of my house and property, on the corner of St. Louis street and Adelaide avenue, in the town of Pacific, county of Franklin, and state of Missouri, so long till the youngest of the children of my first wife, Amelia Hufschmidt, deceased, shall become of age, or when the said children of my first wife, deceased, can agree with my beloved wife, Emilie L., to sell the aforesaid property, including the house.

"3. After such sale, the whole amount so realized shall be divided into eight equal shares or parts, so that each of the seven children left by my first wife, deceased, viz: Frank, Emma, Otto, Fritz, Augusta, George, and Alice, and Louisa, the only child with my present wife, shall receive one share or part. Should, however, any of these die before such division is made, without leaving any heir or heirs, then the amount shall be divided into so many shares, or parts as are left.

"4. For the use and income of the aforementioned property, house and lot, on St. Louis street and Adelaide avenue, Pacific, Missouri, my beloved wife shall pay the interest of my debts, and keep the premises in good order, and raise the minor children until they become of age; but for this she shall have also the use of all the furniture.

"5. All of my other real estate, consisting of six lots and house, in W. C. Ink's addition to Pacific, and a tract of land of thirteen and twenty-five hundredths acres, between the Missouri Pacific railroad and Brush Creek, in Keathy's addition to the town of Pacific, Missouri, my beloved wife shall sell to the best advantage, to settle and pay my contingent debts.

"6. Emilie L. Hufschmidt, appointed sole executrix. Dated July 29, 1879."

This will having been probated, Mrs. Hufschmidt, the executrix, declined in writing, in proper manner, to execute the will, whereupon William Meyersick was granted letters testamentary with the will annexed. From the life insurance policies thus bequeathed her, and rents of the premises, Mrs. Hufschmidt received about forty-five hundred dollars in cash, and some three hundred and eighty-five dollars worth of household goods and furniture, as well as enjoyed the house rent free, till August 20, 1880, when, wearying of widow's weeds, she married her co-plaintiff, Phillip Kaes, and on the second day afterwards removed with her family of minor children, and newly-wedded conjux, to his house in St. Louis county, where she continuously lived up to the time of the trial, having taken with her most of the beds and other furniture -- selling a portion of it and leaving the rest with an adult son of her husband by his first wife, who had occupied the house with her and who afterwards sent to his step-mother a portion of the goods thus left in his care.

The testimony of Mrs. Kaes, as to her intention in removing, is expressed in this language: "I did not leave any of the goods there for the purpose, or with the intention of returning; had no special intention of returning when I left. I still live in St. Louis county with my husband; do not wish to occupy this property with my husband, and live in it. I can't say that I do intend to return to it, and don't say that I do not; can't say that I would occupy the property should Mr. Gross give me the privilege; I would have to see Mr. Kaes first. I don't want rent; I want Mr. Gross to pay me that what I claim as my homestead. I do not know how much it is; I have not made the calculation."

About four thousand dollars, including the school mortgage debt was proved and allowed against the estate of Hufschmidt, after Meyersick took it in charge; and he, after selling some other lands, obtained a general order for the sale of the land in dispute, as well as two other lots for the payment of debts, and at the first sale, in June, 1881, the property was struck off to Mrs. Kaes for seventeen hundred and twenty-five dollars, but this sale being disapproved, the administrator sold the property mentioned for thirty-eight hundred dollars, in September, 1881, which sale was approved by the court, and a deed was made to defendant Gross, March 10, 1882, who thereupon took possession of the property and leased portions of the same to his co-defendants. Meyersick, the administrator, having paid off the unsecured debts with the money thus realized, satisfied the school mortgage aforesaid, and had it so entered on the...