Brown v. Estate of Tucker

• Decision Date: 23 February 1909
• Citation: 117 S.W. 96,135 Mo.App. 598
• Parties: BROWN et al., Appellants, v. ESTATE OF JAS. F. TUCKER, deceased; DOERR, Administrator, Respondent
• Court: Missouri Court of Appeals

117 S.W. 96

135 Mo.App. 598

BROWN et al., Appellants, v. ESTATE OF JAS. F. TUCKER, deceased; DOERR, Administrator, Respondent

Court of Appeals of Missouri, St. Louis

February 23, 1909

January 25, 1909, Argued

Appeal from Perry Circuit Court.--Hon. Chas. A. Killian, Judge.

AFFIRMED.

Judgment affirmed.

T. B Whitledge for appellant.

(1) The widow must have filed her election in order to have been entitled to one-half of personal estate. R. S. 1899, secs 2939, 2942, 2943; Bryant v. Christian, 58 Mo. 98; Griffith v. Canning, 54 Mo. 282. (2) The doctrine is: That when an election creates an interest, nothing will pass until an election is made. Hamilton v O'Neil, 9 Mo. 11; Matney v. Graham, 50 Mo. 564; Bradford v. Wolf, 103 Mo. 398. (3) The right of election is wholly the result of statutory enactment and the statute must be strictly complied with. Kemp v. Hobland, 10 Mo. 255; Welch v. Anderson, 28 Mo. 296; Price v. Woodward, 43 Mo. 247; Patrick v. Fauke, 45 Mo. 313; Allen v. Harnet, 116 Mo. 278. (4) An election is required for personal estate, as well as real estate. Bryant v. Christian, 58 Mo. 98; Hill v. Evans, 114 Mo.App. 719.

Edward Robb for respondent.

(1) The widow was entitled to one-half of the personal estate by virtue of the statute (R. S. 1899, sec. 2939) and it was not necessary for her to file an election under section 2943. The latter section was only intended to apply where the widow elected to take a different estate in real estate from her statutory or common law dower of one-third part for life. Haniphan v. Long, 70 Mo.App. 352; Kelley's Probate Guide (2 Ed.), sec. 473; R. S. 1899, secs. 2908, 2933, 2935-2943. (2) The words "dower" and "endowed" used in sections 2942 and 2943, R. S. 1899, have reference to real estate alone. R. S. 1899, sec. 4160; Perry v. Strawbridge, 209 Mo. 639; Keeney v. McVoy, 206 Mo. 66; Wash v. Wash, 189 Mo. 352. (3) The estate which the widow takes by election is not dower. McFadden v. Board, 188 Mo. 692; Quail v. Lomas, 200 Mo. 686; Wigley v. Beauchamp, 51 Mo. 544. Sections 2938 and 2939, Revised Statutes 1899, are construed and held to be companion statutes--the rights given the widow under section 2939 being identical with those given the husband under section 2938. As the husband is not required to elect it must follow that no election is required by the widow. Waters v. Herboth, 178 Mo. 166; Von Arb v. Thomas, 163 Mo. 33; Gilroy v. Brady, 195 Mo. 209.

OPINION

REYNOLDS, P. J.

One James F. Tucker, late of Perry county, died on the ___ day of July, 1905, in Perry county, intestate, leaving surviving him his widow, Margaret Tucker, but no children or descendants of children. On the tenth of July, 1905, Margaret Tucker filed her relinquishment of the right to administer on his estate, and on the same day Andrew Doerr, was, by the probate court of said Perry county, appointed and duly qualified as administrator of the estate. Margaret Tucker never executed or filed any instrument in writing electing to take one-half of the real and personal property, provided for by sections 2939 and 2943, Revised Statutes 1899. James F. Tucker owned, at the time of his death, a house and lot in Perryville, Missouri, worth about $ 1,200 which was the only real estate he owned, and which it seems goes to his widow as the homestead, and was also possessed of personal property of the value of about $ 2,700. The administrator made his final settlement in the probate court November 23, 1907, showing $ 1,745.45, as due the estate and subject to distribution and the probate court on the same day made an order of distribution of said amount of $ 1,745.45, allowing to Margaret Tucker, as widow of James F. Tucker, $ 672.72, being one-half of the above sum of $ 1,745.45, after deducting $ 400 theretofore paid her as the widow's absolute property. The appellants filed their objections to this, which objections being overruled, the appellants perfected their appeal to the circuit court in due form. The case coming up for trial in the circuit court, by stipulation of parties, was submitted to the court upon an agreed statement of facts, setting them out substantially as above. The objection urged and passed on by the circuit court rests upon the right of the widow to take one-half of the personal estate, she never having executed or filed her election under sections 2939 and 2943. The circuit court, overruling the objection, approved the order of distribution and final settlement, as made by the probate court, by which the widow was allowed one-half of the personal property. Thereupon the appellants duly perfected their appeal to this court.

On this state of facts we think the action of the probate court and of the circuit court was correct.

Counsel for appellants has submitted a very readable brief, supplemented by argument at the bar, representing an elaborate disquisition on the philological meaning of the words "dower" and "endowed," claiming that the latter term, used in section 2943, has no technical meaning, and that we must resort to the dictionary to ascertain its usual and commonly accepted meaning. He thereupon cites the lexicographers as defining it to mean--"furnished with a portion," while "dower" is defined, primarily, as "endowment; gift"; secondly, "that which a wife brings to her husband in marriage; dower"; thirdly, "that portion, usually one-third, of a man's lands and tenements to which his wife is entitled after his death to hold for her natural life."

All this is for the purpose of proving that unless the widow files her election under section 2943, and does so within the time required by that section, she loses her right to take one-half of the personal property of her childless husband as she may do under the second clause of section 2939, that clause providing that when the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled "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." Section 2943, provides...