Burgess v. Bowles

• Decision Date: 24 February 1890
• Parties: BURGESS et al. v. BOWLES.
• Court: Missouri Supreme Court

13 S.W. 99

99 Mo. 543

BURGESS et al. v. BOWLES.

Supreme Court of Missouri.

February 24, 1890.

WIDOW'S ELECTION — HOMESTEAD.

Wag. St. Mo. p. 698, § 5, provides that, on the death of the head of a family without minor children, his homestead, to the value of $1,500, if situated in the country, or in a town of less than 40,000 inhabitants, or to the value of $3,000, if situated in a town of over 40,000, shall pass to and vest in the widow. Held, that a widow who, under her husband's will, has accepted property, whether real or personal, greater in amount than that to which she would otherwise be entitled by law, cannot insist on her homestead, if repugnant to the terms of the will. Davidson v. Davis, 86 Mo. 440, followed.

On motion for rehearing. For former report, see 12 S. W. Rep. 341.

Ejectment by Martha Burgess and others against Susan J. Bowles. Judgment for plaintiffs, and defendant appeals. Wag. St. Mo. p. 698, § 5, is as follows: "If any * * * housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead, to the value aforesaid, [$1,500, if situated in the country or in a town of less than 40,000 inhabitants, or $3,000, if situated in a town of over 40,000,] shall pass to and vest in such widow or children, or, if there be both, to such widow and children, without being subject to the payment of the debts of the deceased, unless legally charged thereon in his life-time; and such widow and children, respectively, shall take the same estate therein of which the deceased died seised: provided, that such children shall, by force of this chapter, only have an interest in such homestead until they shall attain their majority."

BARCLAY, J.

During the consideration of this motion it has become apparent that the question whether the doctrine of election might be applied, under the homestead law prevailing in 1872, will be a controlling one on a retrial of this cause. We deem it, consequently, desirable to express now the conclusion reached on that point, with a view to speed the termination of this litigation. The subject was fully considered by this court in Davidson v. Davis, (1885,) 86 Mo. 440. It was then held that where a widow accepted, under the will of her deceased husband, property (whether real or personal) greater in amount than that to which she would otherwise have been entitled by law, she could not then insist upon her homestead right, if repugnant to the terms of the will. That decision interpreted...