Brawford v. Wolfe
| Decision Date | 24 February 1891 |
| Citation | 15 S.W. 426,103 Mo. 391 |
| Parties | Brawford v. Wolfe et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Putnam Circuit Court. -- Hon. Andrew Ellison, Judge.
Reversed.
A. W Mullins for appellants.
(1) The court erred in admitting in evidence the proceedings had in the probate court of Putnam county, Missouri, and the instrument called an election of Maria Russell to take one-half of said real estate in lieu of dower therein. Said probate court had no jurisdiction or authority to appoint the administrator or to take control over the estate in any respect. The deceased was a non-resident of this state when he died. There were no debts or liabilities against him or his estate in Missouri, and there was no personalty, debts or claims of any kind, belonging to him, or in which his estate was in anywise interested, in this state. The action taken in the probate court was, therefore, without authority of law and the evidence of the proceedings there should have been excluded. Schouler on Executors & Administrators, sec. 24; R S., sec. 38; Chambers' Adm'r v. Wrights' Heirs, 40 Mo. 482, 485; Aubuchon v. Lory, 23 Mo. 99; Gamble v. Gibson, 59 Mo. 585; 1 Woerner on Adm., sec. 205, p. 440. (2) The deed from Mrs. Maria Russell and her present husband, Robert R. Russell, to Hoskinson and Frankey is dated December 21, 1875, and the probate court proceedings occurred, and the "election" of Mrs. Russell to take one-half of the real estate of her former husband in lieu of dower was made, in the year 1881. Even if these last-named proceedings had been authorized by law -- which I insist were not -- still such after-acquired right that Mrs. Russell may have secured to herself did not, by operation of law, under the statute and the doctrine of inurement, become vested in her grantees, Hoskinson and Frankey, or their grantee. Barker v. Circle, 60 Mo. 258, 263; Jackson v. Vanderheyden, 17 Johns. 167; Bigelow on Estoppel [3 Ed.] p. 277.
S. P. Huston for respondent.
(1) Whenever any person dies leaving property in this state, the probate courts of this state have jurisdiction to appoint administrators. Otherwise, all the assets in this state might be removed from the state without payment of debts here existing. R. S. 1879 (latter clause), sec. 4; sec. 268, and following in art. 12, R. S. 1879. The fact that it may turn out that there are no debts cannot be considered in determining the jurisdiction to appoint an administrator. There could be no way to ascertain the fact, except through and after the appointment. Then the appointment of an administrator of the estate of Columbus C. Davis was legal. (2) The widow of Columbus C. Davis could only be endowed in real estate lying in this state under the laws of this state. (3) The election of the widow was equivalent to assignment and she can convey it or it can be seized and sold for her debts. (4) The fact that the decedent left brothers or their children did not deprive her of her right of election under the statute. R. S. 1879, sec. 2192. (5) When the deed was made, it was a contingent interest in the land perfected by her election, and by the well-settled rules of relation passing to the purchaser by the deed. It is not invoking the doctrine of estoppel to convey after-acquired title -- that question is not in this case. The widow did not acquire any title after her conveyance; all that was done was in the way of ascertaining what she then had. In the case cited by appellant, Jackson v. Vanderheyden, 17 John. 167, the court say: "That though a deed with covenants of warranty by husband and wife of the wife's land would convey her real estate, or any existing or contingent future interest in it, yet such deed cannot operate as an estoppel to a title subsequently acquired." That is the true doctrine.
Ejectment for possession of the northwest quarter of the northwest quarter, section 28, township 65, range 19, in Putnam county.
In March, 1865, Columbus C. Davis, a resident of the state of Kentucky, died, seized 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 twenty-first 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 twenty-fourth 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 third 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. Defendant 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.
I. The statute (R. S. 1879, sec. 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 descendants as "one who descends, as offspring, however remotely; correlative to ancestor." Descendants, as used in the statute, mean 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 seized, situate in this state, upon making her election, in the manner and within the time provided by the statute.
II. 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. 250; Scott v. Crews, 72 Mo. 261; Sims v. Gray, 66 Mo. 613.
III. 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, Revised Statutes, 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, Revised Statutes, 1879, provides, that "A husband and wife may convey the real estate of the wife, and the wife may relinquish her dower in the real estate of her 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 the 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. R. S. 1879, sec. 2161. 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. R. S. 1879, sec. 2190. To...
To continue reading
Request your trial