O'Brien v. Sedalia Trust Co.

• Citation: 5 S.W.2d 74
• Decision Date: 11 April 1928
• Docket Number: No. 26419.,26419.
• Parties: EVA L. O'BRIEN v. SEDALIA TRUST COMPANY ET AL., Appellants.
• Court: United States State Supreme Court of Missouri

5 S.W.2d 74

EVA L. O'BRIEN v. SEDALIA TRUST COMPANY ET AL., Appellants.

No. 26419.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.

[5 S.W.2d 75]

AFFIRMED.

W.D. Steele and A.L. Shortridge for appellants.

(1) Sarilda Hicks could not, by will, deprive her husband of the part of her estate, one-half, which was given him by Sec. 320, R.S. 1919, and her will in so far as it undertook to devise said half of her real estate was void, but she had authority to dispose of the other half thereof, and by her will in undertaking to create a life estate in both the first and second taker, the second taker took an estate in fee simple, and thereby her husband, Jacob W. Hicks, after the death of Maud E. Bandy, to whom the life estate was devised, took the other half of said estate. "Where the law gives a widow absolutely a certain share in her husband's estate at his death, he cannot deprive her of it by a will, and as in such case the law does not say that she must make within a certain time a formal renouncement of the will, she need not do so, but simply ignore it and claim what the law gives her." Egger v. Egger, 225 Mo. 141. (2) It is true that the statute abolishing tenancy by the curtesy, Laws 1921, page 119, gives the widower the same share in the real estate of his deceased wife as is provided by law for the widow in the real estate of her deceased husband with the same rights of election and the same limitations thereto. This statute did not in any way amend, repeal or affect Section 320, giving the husband a half interest in his wife's real and personal estate absolutely where there are no children, but only affected his inheritance and gave him the right of election where there are children. When the wife leaves no children or descendants the husband is not required to elect before he can take one-half any more than the wife would be required to elect in order to take a child's part in her husband's personal estate, as held in the case of Egger v. Egger, above cited. Sec. 329, R.S. 1919, requires the wife to renounce the will of her husband within a certain time, if she so desires, but that section has not been amended requiring the husband to renounce the wife's will, and Laws 1921, page 119, do not mention renunciation by the husband, but only his right of election, and no election is necessary under Section 320, but only where there are children. O'Brien v. Ash, 169 Mo. 283. The fact that the wife in the case at bar undertook by her will to give the husband a life interest in her estate, would not preclude him from taking a one-half interest absolutely, any more than if the will had contained no provision for him whatever. "The interest given the husband by the law of 1895 is one that the wife cannot defeat by will." Spurlock v. Burnett, 183 Mo. 531. (3) By the will of Sarilda Hicks one-half interest in her estate was devised to her sister, Maud E. Bandy, for life and at the death of Maud E. Bandy, to testator's husband, Jacob W. Hicks, for and during his natural life. Under the law abolishing estates tail this will created a life estate in Maud E. Bandy with remainder in fee simple in Jacob W. Hicks. Sec. 2267, R.S. 1919; King v. Theis, 272 Mo. 416; Wood v. Kice, 103 Mo. 329; Bone v. Tyrrell, 113 Mo. 175; Elsea v. Smith, 273 Mo. 396.

Bohling & Bohling and Paul Barnett for respondent.

(1) Jacob W. Hicks as widower only takes what a widow would take in the event of the death of her husband. Since the enactment of the Act of 1921 it is only necessary to ascertain the rights of a widow in order to ascertain the rights of a widower. Laws 1921, p. 119. A widow is entitled to common-law dower upon the death of her husband; that is, she may take a life estate in one-third part of all the lands whereof her husband died seized of an estate of inheritance, at any time during the marriage. Sec. 315, R.S. 1919, or when the husband shall die without any children or other descendants, in being, capable of inheriting, his widow shall be entitled ... second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband's debts. Sec. 321, R.S. 1919. Third, when the husband shall die without a child or other descendants living, capable of inheriting, the widow shall have her election to take her dower as recited in Section 315, discharged of debts, or the provisions of Section 321 as therein provided. Sec. 323, R.S. 1919. (a) The provisions of Secs. 328 and 329, R.S. 1919, plainly intend that a devise of real estate by will shall be in lieu of dower under Section 315 and also of the substituted statutory dower under Section 321. Klocke v. Klocke, 276 Mo. 572; Van Arb v. Thomas, 163 Mo. 33; Ross v. Church, 197 S.W. 561; McKee v. Stucky, 181 Mo. 719. Even before the Act of 1921 a husband was put to his election whether he should take his statutory rights in his wife's property or whether he should take under the will. The only difference is that now the manner of making the election is governed by statute, whereas, the question as to what election had been made was, before 1921, a matter of intention to be gathered from the evidence. Mosley v. Body, 198 S.W. 847. (b) Jacob W. Hicks died without filing any renunciation of his wife's will and without any election to take one-half of the real and personal property subject to debts in lieu of common-law dower. Death bars the right of election whether the statutory time has expired or not. Castleman v. Castleman, 184 Mo. 432; Wash v. Wash, 189 Mo. 352; Welch v. Anderson, 28 Mo. 293; Davidson v. Davis, 86 Mo. 440. (2) The will did not create an estate tail. An estate tail is an estate of inheritance, which, instead of descending to heirs generally goes to the heirs of the donee's body, which means his lawful issue, his children, and through him to his grandchildren in a direct line so long as his posterity endures in a regular order and course of descent, and upon the extinction of such issue the estate determines. 21 C.J. 931; Elsea v. Smith, 273 Mo. 396; Fanning v. Doan, 128 Mo. 323. The statute only abolishes estates tail. At common law there was no objection to creating successive life estates. 40 Cyc. 1613. Successive life estates in the same property with remainder over in fee have been recognized as valid. Willis v. Robinson, 237 S.W. 1030.

ELLISON, C.

Suit to construe the will of Sarilda Hicks who died in 1923. The issues presented on the appeal have been so narrowed that it is unnecessary to set out at length either the pleadings or the will itself. The testatrix provided: (1) for the payment of her just debts, funeral expenses, etc.; (2) she devised one-half of her remaining or net estate to her husband, Jacob W. Hicks, for life, with remainder over to her sister Maud E. Bandy for life; (3) the other one-half she devised to her said sister, Maud E. Bandy, for life, with remainder over to her said husband, Jacob W. Hicks, for life; (4) on the death of both Jacob W. Hicks and Maud E. Bandy the estate property was to be converted into cash, invested, and the income paid in specified parts, for the upkeep of a cemetery, to the Y.M.C.A. of Sedalia, and to the trustees of the First Christian Church of Sedalia. The validity of these trust legacies was determined by the decree below, and no complaint is made here respecting that branch of the case. We shall not refer to it again. To state the points at issue we must go a step further.

The estate involved consists solely of eighty-five acres of land in Pettis County, Missouri, which was the separate property of the testatrix. Both life tenants are dead, Maud E. Bandy dying first. There was no children born of the marriage of Jacob W. Hicks and Sarilda Hicks, and she left no lineal descendants. Jacob W. Hicks did not make and file an election to take one-half of his wife's real and personal estate subject to the payment of debts. Neither did he elect in writing to renounce the will under Sections 328 and 329, Revised Statutes 1919.

The defendant executor, the Sedalia Trust Company, which is also executor of the will of Jacob W. Hicks, has appealed, along with some of the other defendants. Their first assignment is that the trial court erred in refusing to decree that Jacob W. Hicks as widower of the testatrix took a one-half interest in her estate subject to debts, in spite of the will, under Section 320, Revised Statutes 1919, enacted for the benefit of widowers when the wife dies childless. The appellants contend he was entitled to that interest, absolutely, without making or filing an election or renunciation of the will, and that the widow could not cut down or diminish the share so granted him by the law. Appellants' other assignment — there are only two — is that the devise of the other half of the real estate to Maud E. Bandy for life, remainder over to Jacob W. Hicks for life, created an estate tail, which, under the Section 2267, Revised Statutes 1919, vested the remainder in fee in Jacob W. Hicks as second taker. So it will be seen by the two assignments the appellants claim the entire title was in the widower after Maud Bandy died and when he died.

As to the first assignment, the respondent admits Jacob W. Hicks took a one-half interest in the land under the statute mentioned, Section 320, if it was in force in 1923 when the testatrix died; but respondent maintains it was not. She points to the Act of 1921 abolishing tenancy by the curtesy, in which it is provided that a widower shall have the same share in the real estate of his deceased wife that she would have in his, with the same rights of election and the same limitations thereto. From this it is argued that Section 320 was repealed by necessary implication; that both widowers and widows now share in the real estate of their deceased consorts under the same statutes; and that if Jacob W. Hicks was...