Burgess v. Bowles

• Decision Date: 04 November 1889
• Citation: 12 S.W. 341,99 Mo. 543
• Parties: BURGESS et al. v. BOWLES.
• Court: Missouri Supreme Court

12 S.W. 341

99 Mo. 543

BURGESS et al. v. BOWLES.

Supreme Court of Missouri.

November 4, 1889.

WIDOW'S ELECTION.

Where a testator gives to his wife all his property so long as she remains his widow, she may, nevertheless, take such of it as the homestead and administration laws give her, without a formal renunciation of the will. Unless the estate given by the will exceeds that given by law, there is no consideration for an election, and she need make none.

Error to circuit court, Lincoln county; ELIJAH ROBINSON, Judge.

Action of ejectment by Martha Burgess and others against Susan J. Bowles. Judgment for plaintiff, and defendant brings error.

Smith, Silver & Brown and R. H. Norton, for plaintiff in error. Martin & Avery and Dunn & Colbert, for defendants in error.

BARCLAY, J.

Vaden Giles died in 1872, leaving a will, as follows: "First, after all my lawful debts are paid and discharged, the remainder of my estate, real and personal, I give to my wife, Susan Jane Giles, as long as she remains my widow, to dispose of any portion of the estate for her support, if necessary. I also constitute my said wife my lawful executrix, to sell and dispose of any property, personal and real, and pay off all lawful debts I owe. And if there be any property left after her death it shall be divided among my children." Plaintiffs are his children. Defendant was his widow. In 1875 she married Bowles. After defendant's marriage this action of ejectment was brought. The land in question was bought by Giles, and partly paid for during his lifetime. He resided on it with the defendant at the time he died, and for several months before. The deed to him as grantee was delivered to defendant after his death. As both parties claim through him as owner, there will be no need to consider any other question of title on the facts disclosed than that hereinafter discussed.

For the purposes of this case the land must be regarded as the homestead of deceased. It was within the legal limits regarding value and extent, and was all the realty he owned. He left some personal property. Defendant, while his widow, took possession of all this property, had the will probated, and paid off a number of his debts. In so doing she probably intended to act under the will, but, after her marriage to Mr. Bowles, she claimed the land by virtue of the homestead law. That is her claim now. The law in force when Giles died controls the rights of these parties. Under it the widow would take the same estate owned by the deceased in the...