Dougherty v. Barnes

• Decision Date: 31 October 1876
• Citation: 64 Mo. 159
• Parties: LUCINDA DOUGHERTY, Respondent, v. GEORGE L. BARNES, Appellant.
• Court: Missouri Supreme Court

64 Mo. 159

LUCINDA DOUGHERTY, Respondent,

v.GEORGE L. BARNES, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Franklin Circuit Court.

John W. Boottie, for Appellant, cited: see Aubuchon vs. Lory, 23 Mo. 99; Lackland vs. Stephenson, 54 Mo. 108; Matney vs. Graham, 50 Mo. 559.

John R. Martin, for Respondent, cited; Bretz vs. Matney, 60 Mo. 444.

NORTON, Judge, delivered the opinion of the court.

This is a suit instituted by plaintiff for the assignment of dower to her in certain lands in Franklin county, to which she claims title as the widow of John W. Dougherty who it is alleged owned the lands in fee at the time of his death.

Defendant in his answer alleges that Dougherty, the husband of plaintiff, died in December, 1863, leaving a will containing a devise to plaintiff of all his real and personal estate during her widowhood, charged with the duty of raising and educating the children of the said John W. out of the profits of the same; that said will was duly admitted to probate and letters testamentary were granted to one Sweet, who in 1867, under an order of the county court, sold the land, (in which dower is claimed) for the payment of debts, to defendant for the sum of $2,214, which sale was approved by the court and a deed made by said administrator to defendant in 1868. It is further alleged that plaintiff received the entire profits of said land from the death of her husband till said sale, and that there was in the hands of the administrator, after payment of debts, a sum of money, the yearly value of which exceeds the one-third of the yearly value of said land.

It is further alleged that the plaintiff did not file her written or any other renunciation of the provisions of the will as provided by the statute within twelve months, or any other time after probate of the same, but that she accepted the provisions of the will by enjoying the rents and profits of the land till it was sold and receiving, after it was sold, part or the whole of the proceeds of the sale remaining after the payment of debts.

Plaintiff admits in the replication that she did not elect not to take under the provisions of the will, and alleges that at no time prior to the sale of said land did she know, or could she have known, the value of the estate devised; and denies that any portion of the proceeds of the sale of said lands was paid to her in lieu of her dower.

There was a trial and decree by the court for plaintiff, from which defendant appeals.

The evidence in the case tends strongly to show that plaintiff was acquainted with the provisions of the will at the time it was made, that she was informed by the executor of his intention to sell the lands before they were sold, and that after the sale to defendant she was informed of it fully, and requested the administrator to lay out the proceeds of the sale for her, in lands in Johnson county. It further shows that plaintiff occupied the land for one year, and rented it and received the proceeds for two or three years, and up to the time defendant went into possession under his purchase; that after the sale the executor paid plaintiff a portion of the...