Brawford v. Wolfe

• Decision Date: 24 February 1891
• Citation: 103 Mo. 391,15 S.W. 426
• Parties: BRAWFORD v. WOLFE et al.
• Court: Missouri Supreme Court

15 S.W. 426

103 Mo. 391

BRAWFORD v. WOLFE et al.

Supreme Court of Missouri, Division No. 2.

February 24, 1891.

RIGHTS OF WIDOW — ELECTION IN LIEU OF DOWER — DEED BY WIDOW — ESTOPPEL.

1. Under Rev. St. Mo. 1879, § 2190, giving the widow of a man who dies without any child or other descendants capable of inheriting, the right to elect to take in fee one-half of his real and personal property in lieu of dower, ancestral or collateral kindred are not descendants, and the widow of a husband who dies leaving only brothers or sisters has the right to elect under the statute.

2. An administrator of an intestate, domiciled in another state, was appointed in this state, the record of the probate court showing that in making the appointment it complied in all respects with the statute governing its procedure. Held, that an election by the widow to take one-half of the estate in lieu of dower could not be defeated by a collateral attack on the appointment, made on the ground that the intestate left no debts and no personal property in this state.

3. The owner of land died, leaving no descendants. His widow remarried, and joined her second husband in a deed purporting to convey the fee with covenants of warranty, after which she made her election to take one-half of the land in lieu of dower. Rev. St. Mo. 1879, § 3940, provides that, when a deed purports to convey an indefeasible estate in fee-simple, a subsequently acquired title shall inure to the benefit of the grantee. Section 669 provides that the husband and wife may convey her land by their joint deed, but no covenant, express or implied, "shall bind the wife or her heirs, except so far as may be necessary effectually to convey from her and her heirs all her right, title, and interest expressed to be conveyed therein." Held, that the title acquired by the widow by her election did not inure to the benefit of her grantees, nor did her election operate by relation, so as to give effect to her deed.

Appeal from circuit court, Putnam county; ANDREW ELLISON, Judge.

A. W. Mullins, for appellants. S. P. Huston, for respondent.

MACFARLANE, J.

Ejectment for possession of N. W. ¼ of the N. W. ¼, section 28, township 65, range 19, in Putnam county. In March, 1865, Columbus C. Davis, a resident of the state of Kentucky, died, seised in fee of the land in suit, leaving his wife, Maria, surviving him, but without children or other descendants. The widow, afterwards, in December, 1867, married Robert R. Russell, and they continued to reside in that state. Defendant Hyde went into possession of the land in the year 1874. On the 21st day of December, 1875, Maria Russell and her husband executed and delivered to Hoskinson and Frankey a deed of general warranty to this land, which was recorded January 28, 1876. Letters of administration were granted by the probate court of Putnam county on the estate of C. C. Davis on the 24th day of February, 1881. The inventory of the administrator showed no other property than this land. There was no evidence that deceased owed any debts in this state or elsewhere. On the 3d day of March, 1881, Maria Russell, her husband joining her, made a declaration in writing, duly acknowledged before a notary public, electing to take one-half the real estate, under section 2190, in lieu of dower. This election was sufficient in form, substance, and execution, and was filed in the office of the probate court of Putnam county, March 8, 1881. Plaintiff claims title under deeds from Hoskinson and Frankey. C. C. Davis left brothers and sisters surviving him, or their descendants. It does not appear that anything further was done in the probate court in regard to the estate of C. C. Davis. No declarations of law were asked or given on behalf of plaintiff. Defendants asked a number of instructions, which were refused. These declared in effect that the widow of Davis had no right to make an election if her deceased husband left father, mother, brother, or sister surviving him; that the court had no jurisdiction to appoint an administrator on the estate of Davis, and therefore the election made by the widow was void; that the election of the widow, if valid, did not inure to the benefit of her grantees, under her deed made prior thereto. The case was tried by the court without a jury, and judgment was rendered for the plaintiff for an undivided one-half of the land.

1. The statute (section 2190) gives a widow the right, when her husband dies without any child or other descendants in being capable of inheriting, in lieu of dower, to elect to take one-half the real and personal property belonging to the husband, at his death, absolutely, subject to the payment of the debts of the husband. Webster defines "descendant" as "one who descends, as offspring, however remotely; correlative to `ancestor.'" "Descendants," as used in the statute, means those who descend in a direct line from the husband, — children, grandchildren, etc. It does not apply to collateral or ancestral kinship. C. C. Davis, then, leaving neither children nor their descendants, his widow was entitled, in lieu of dower, to take one-half the land of which her husband died seised, situate in this state, upon making her election in the manner and within the time provided by the statute.

2. So far as appears from the record in this case, the action of the probate court of Putnam county was in all respects in compliance with the requirements of the statutes governing its procedure. While these courts are of special and limited jurisdiction, the powers and duties conferred upon them are given to no other courts, and over such matters and proceedings as are conferred upon them, among which is the granting of letters of administration, the jurisdiction is general and exclusive. Their judgments and orders, when acting within their authority, are conclusive, and are no more subject to collateral attack than are those of courts of general jurisdiction. The appointment of the administrator of Davis, then, is conclusive in this action, and cannot be called in question. Johnson v. Beazley, 65 Mo. 252; Scott v. Crews, 72 Mo. 262; Sims v. Gray, 66 Mo. 614.

3. The question of most difficulty is to determine the effect the election made by the widow of Davis to take one-half of the land in lieu of dower, had, when taken in connection with her previous conveyance. Plaintiff insists that the title to one-half the land, upon filing her election by the widow, passed to and vested in the grantee under the deed previously made; that if the title secured by the widow by her election did not inure to her grantees, then it did vest in them by operation of the doctrine of relation. This deed from Mrs. Russell and her husband, made some years before her election, undertook to convey to her grantees an indefeasible estate in fee-simple to the land in question. Section 3940, Rev. St. 1879, declares that in case such a deed is made, if the grantor did not have the legal title to the land conveyed, but should afterwards acquire it, the legal estate subsequently acquired should immediately pass to the grantee. Section 669, Id., provides that "the husband and wife may convey the real estate of the wife, and the wife may relinquish her dower in the real estate of the husband, by their joint deed, acknowledged and certified as herein provided; but no covenant, expressed or implied, in such deed shall bind the wife or her heirs, except so far as may be necessary effectually to convey from her and her heirs all her right, title, and interest expressed to be conveyed therein." When any person having title to real estate shall die intestate it shall descend to his kindred, male and female, subject to the payment of debts and the widow's dower. Rev. St. 1879, § 2165. When the husband shall die without any child or other descendants, his widow shall be entitled to one-half his real estate, subject to the payment of his debts. Id. § 2190. To secure the rights conferred in this section the...