Bryant v. McCune
| Decision Date | 31 March 1872 |
| Citation | 49 Mo. 546 |
| Parties | WALTER B. BRYANT, ADMINISTRATOR OF ESTATE OF MARGARET BUFORD, Defendant in Error, v. S. C. MCCUNE et al., EXECUTORS OF JAMES BUFORD, Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to Ralls Circuit Court.
G. W. Shields, for plaintiffs in error.
I. “If it is manifest from a fair construction of the will that the testator intended the bequest to be in lieu of dower, the widow cannot accept the bequest and also claim dower as allowed by law.” (Pemberton v. pemberton, 29 Mo. 412-13; Brant's Will, 40 Mo. 277-8; Coke Just., Halg. & Thom., 567, 569.)
II. Section 33 of the administration law (Wagn. Stat. 88) is not an absolute, arbitrary provision vesting the property therein named in the widow, but it is a part of her dower by law--an additional power allowance--a part and parcel of the maintenance allowed by law to the widow for herself and children. (Hastings v. Meyers, 21 Mo. 519, 521.)
O. H. P. Ledford, for defendant in error.
Section 33 of the administration law is a provision made by the statute for the widow, and is beyond the control of the husband or his creditors. The right to the property vests in the widow the moment the husband dies, against the heir of the husband--against the world.
The first section of the act concerning wills expressly prohibits the husband from disposing by will of the property passing by law at his death to the wife, and the presumption is that the husband only intended to dispose of that property of which he had the lawful right to dispose. Hence the will should not be construed to dispose of this property, claimed as absolute, to the wife or any one else.
Defendant's testator devised and bequeathed to his wife the plaintiff's intestate, a large portion of his estate, real and personal, to hold during her life, and died without issue. In a few weeks, and before the probate of the will, his widow also died, and the present controversy has arisen between the representatives of the two estates in regard to the property to which she was entitled, in addition to dower, by section 33 et seq., chapter 121, Gen. Stat. 1865 (Wagn. Stat. 88).
The term “dower” is sometimes applied to any interest in the estate of the husband given by law; and Judge Scott, in Hastings v. Meyers' Adm'r, 21 Mo. 519, seems to use it in this sense, but it properly refers to the interest of the widow as such in his lands. It is to dower proper, or at most to her interest in the realty given in the act concerning dower, that reference is made in section 15 of the same act, which radically changes the rule of the common law, and provides that a devise of real estate shall be deemed to have been made in lieu of dower, unless the contrary intention be declared.
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