Allen v. Harnett

• Decision Date: 30 May 1893
• Parties: Allen v. Harnett, Appellant
• Court: Missouri Supreme Court

22 S.W. 717

116 Mo. 278

Allen v. Harnett, Appellant

Supreme Court of Missouri, Second Division

May 30, 1893

Appeal from St. Charles Circuit Court -- Hon. W. W. Edwards, Judge.

Affirmed.

Lackland & Wilson with D. P. Dyer for appellants.

(1) The election of the defendant, Mary E. Harnett, was made out and filed in accordance with the provisions of 1 Revised Statutes, 1879, secs. 2190-2194, and she is entitled to one-half of her deceased husband's estate. 1 Revised Statutes, 1879, secs. 2190-2194. (2) The law, at the time this election was made, did not require it to be recorded, or any minute or record entry of its filing to be made in the probate court. 1 Revised Statutes, 1879, sec. 2194; Franklin Co. v. State ex rel., 3 So. Rep. (3) The mailing of the declaration of election properly addressed and postage prepaid nine months before the time for filing expired carries the presumption that the election was delivered to the probate judge and filed in due time. United Statcs v Babcock, 3 Dillon's Circuit Court Reports, p. 571; Commonwealth v. Jeffries, 7 Allen (Mass.) 563; 16 American and English Encyclopaedia Law, p. 825 and authorities cited. (4) A court of equity has authority to grant relief in this case. Akin v. Kellogg, 39 Hun (N. Y.) 252; Smither v. Smither, 9 Bush (Ky.) 231 Grider v. Eubanks, 12 Bush (Ky.) 510. Zaeget v Kuester, 51 Wis. 31; McDaniel v. Douglass, 6 Humph. (Tenn.) 220; Daugherty v. Barnes, 64 Mo. 164; United States v. Duncan, 4 McLean (U.S.) 99 et seq.; 2 Story's Eq. [6 Ed.], sec. 1521-1522; Irvin v. Leyh, 102 Mo. 211. (5) The plaintiff, James P. Allen, in purchasing from the collateral heirs of Wm. A. Harnett, deceased, by quitclaim deed, took subject to all the rights and equities in favor of the defendant widow. Campbell v. Laclede Gas Co., 84 Mo. 364; Stevers v. Horne, 62 Mo. 475; Mann v. Best, 62 Mo. 491; Ridgeway v. Halliday, 59 Mo. 444; Fox v. Hall, 74 Mo. 316; Stoffell v. Schroeder, 62 Mo. 147. The equity in favor of the defendant widow is not one that is subject to the registration act. (6) The plaintiff Allen, and his grantors, all had full knowledge and notice of the widow's election, and he took with full notice of the equities in her favor.

T. F. McDearmon and Theodore Bruere for respondent.

(1) When an election creates an interest nothing will pass nor vest until an election is actually made, and if no election is made no title will vest or interest arise. Matney v. Graham, 50 Mo. 564; Griffith v. Canning, 54 Mo. 284; Wigley v. Beauchamp, 51 Mo. 547; Brandford v. Wolf, 103 Mo. 398, 399; U. S. v. Grundy, 3 Cranch 337. (2) The right of election is wholly the result of statutory enactment and the statute must be strictly and substantially complied with. Kemps v. Holland, 10 Mo. 255; Welch v. Anderson, 28 Mo. 298, 299; Watson v. Watson, 28 Mo. 303; Price v. Woodard, 43 Mo. 247; Ewing v. Ewing, 44 Mo. 24; Patrick v. Fauke, 45 Mo. 313; Buford v. Buford, 58 Mo. 98; Gant v. Henly, 64 Mo. 163; Daudt v. Music, 9 Mo. Appeal 173. (3) It has been the practice of the higher courts of this state to construe strictly all purely statutory enactments. Fulkerson v. Houts, 55 Mo. 301; Johnson v. Hodges, 65 Mo. 590; Williams v. Williams, 26 Mo.App. 409; McGraw v. Foster, 66 Mo. 30; Pope v. Thomson, 66 Mo. 661; Cunningham v. Wells, 16 Mo.App. 78. (4) The instrument of election, in order to comply with the statute, must be delivered to the proper officer and must be received by him to be kept on file. Johnson v. Hodges, 65 Mo. 590; Williams v. Williams, 26 Mo.App. 409; Fulkerson v. Houts, 55 Mo. 301; Baker v. Henry, 63 Mo. 517; State v. Williams, 68 Mo. 26; Daudt v. Music, 9 Mo.App. 173; Palwick v. White, 18 Mo.App. 228; Taylor v. Scott, 26 Mo.App. 252; Jones v. Christian, 24 Mo.App. 540; Cunningham v. Wells, 16 Mo.App. 78. (5) The mailing and posting of the declaration of election at the postoffice in Wentzville, Mo., properly addressed and postage prepaid thereon within the time limited in section 2194, of Revised Statutes of 1889, is not a filing within the meaning and contemplation of the said statute. Hyde v. Goldsby, 25 Mo.App. 34; Conway v. Campbell, 38 Mo.App. 476; Wade on Notices, section 1343; Rathbun v. Acker, 18 Barb 393; McGinnis v. Taylor, 22 Mo.App. 516; Ellison v. Lindley, 33 N. J. Equity Report 258. (6) Equity will not furnish relief in case of the defective execution of a statutory power or dispense with any of the formalities required thereby for its due execution. Baux v. County of Bates, 61 Mo. 393; Moreau v. Detchemendy, 18 Mo. 531; Speck v. Wohlien, 22 Mo. 315; Russell v. Whitty, 59 Mo. 199. (7) Where an equitable defense to an action amounts to nothing more than the showing of an incomplete or imperfect execution of a statutory power -- there is no ground for the interference of a court of equity. Hubble v. Vaughan, 42 Mo. 138; Johnson v. Houston, 47 Mo. 230. (8) The failure to file the election in the office of the probate court is an omission so necessarily chargeable to negligence and want of ordinary care and diligence that equity can not furnish any ground for relief. Reeds v. Hansard, 37 Mo. 199; Brown v. Fagan, 71 Mo. 563; Weinert v. Trendley, 39 Mo.App. 337; Freeman on Judgments, secs. 503 and 508.

OPINION

Burgess, J.

-- William A. Harnett, husband of defendant, died in St. Charles county, Missouri, on the seventh day of July, 1887, intestate, without lineal descendants. On the twentieth of July, 1887, letters of administration were granted by the probate court of St. Charles county to the defendant on the estate of her deceased husband.

The husband and wife had lived together as such for a period of nearly fifty years, and during that time had accumulated some property, consisting chiefly of three hundred and sixty acres of land in the immediate vicinity of their residence, and a few lots in the village of Flint Hill, in said county. The lots were of little value, and the three hundred and sixty acres of land constituted the bulk of the estate. There were no debts of any moment against the estate.

At the time of the death of Harnett he had two sisters living, to-wit: Mrs. L. L. Allen, mother of plaintiff, and Mrs. Louisa B. Allen, an aunt of plaintiff. There were also living two children of a deceased brother of Harnett, to-wit: James A. Harnett and Mrs. Ida Monson.

In November, 1887, four months after the death of her husband, the defendant went to the office of Charles J. Walker, Esq. (an attorney-at-law and notary public), in the town of Wentzville, in St. Charles county, and near her place of residence, and caused Walker to prepare in writing a paper for her signature and acknowledgment by which she elected to take, in pursuance of section 2190 of the Revised Statutes, 1879, of Missouri, all of the real and personal estate which came to her husband in right of the marriage, also of the personal property that came to the possession of her husband with her written assent, remaining undisposed of absolutely, subject to the payment of his debts. This paper was written by Walker, duly signed by the appellant, and duly acknowledged before Walker, notary public. Mr. Walker was the attorney for Mrs. Harnett, and had charge of the business of the estate from the death of her husband. On the day that the paper was written, signed and acknowledged, Mr. Walker placed the same in an envelope and directed it to Judge John T. Powell (judge and ex-officio clerk of the probate court of St. Charles county), St. Charles, Missouri, prepaid the postage thereon and deposited the same in the United States mail at Wentzville, Missouri.

Defendant gave herself no further concern about the matter until more than a year had elapsed from the time of the death of her husband and the date of her letters of administration upon his estate. On or about the fourteenth of September, 1887, she learned that the plaintiff was claiming to have discovered that the paper in which she had made her election could not be found in the office of the judge of probate in St. Charles county, and thereupon she caused to be made out by Walker a paper in words and figures following, to-wit:

"Know all men by these presents, that whereas on the day of November, 1887, I, Mary E. Harnett, widow of William A. Harnett, late of St. Charles county, Missouri, deceased (who died leaving no child or other descendants in being capable of inheriting), did elect to take all the real and personal estate which came to the said Wm. A. Harnett, deceased, in right of our marriage, and all of the personal property of the said William A. Harnett, deceased, which came to his possession with my written assent remaining undisposed of, absolutely (not subject to the payment of his debts), and also on said date did elect to take one-half of the real and personal estate belonging to the said William A. Harnett at the time of his death, absolutely, subject to the payment of his debts, which said election was made under section 2190 of the Revised Statutes of Missouri, and following, and was made in writing, signed and acknowledged by me before Charles J. Walker, a notary public, on said day of November, 1887, and was by him immediately mailed to John T. Powell, probate judge of said county of St. Charles, and whereas, said election never reached the office of said judge and said court, or has been lost or mislaid in said office: Now, I therefore make this instrument as a certificate of my election at said date, and to cure any defects that may arise by the miscarriage or loss of my said election heretofore made. In witness whereof I have hereunto set my hand and seal this fourteenth day of September, 1888.

"(Signed) Mary E. Harnett."

This paper was duly acknowledged and filed in the office of the probate court.

Soon after this paper...