Cassity v. Pound

• Decision Date: 12 March 1902
• Citation: 67 S.W. 283,167 Mo. 605
• Parties: CASSITY v. POUND.
• Court: Missouri Supreme Court

67 S.W. 283

167 Mo. 605

CASSITY v. POUND.

Supreme Court of Missouri, Division No. 1.

March 12, 1902.

DOWER — ADMEASUREMENT — COMPUTATION — ACTION — DEFENSE — ASSIGNMENT OF DOWER INTEREST.

1. Commissioners appointed to set out a homestead to a widow entitled to dower, who are required by Rev. St. 1889, § 5440, to first set out the homestead, and then determine the dower from the remainder of the real estate of deceased, from which the value of the homestead shall be deducted, may properly determine the dower right by first ascertaining the value of all the estate real property including the homestead, and then the value of the homestead, and deducting the value of the latter from one-third the value of the real estate.

2. There is no force in the objection to an admeasurement of dower that the commissioners computed the value of the property of deceased in terms of actual value, and not rental value, as the actual value is the true value, and the rental value is only a method for the determination thereof.

3. The fact that a widow has assigned her dower interest after the commencement of a suit by the executor for admeasurement of dower will not defeat the dower right, as Rev. St. 1889, § 4514, expressly authorizes a widow to transfer her unassigned dower, and authorizes the assignee to maintain suit for the admeasurement thereof.

Appeal from circuit court, Linn county; Jno. P. Butler, Judge.

Proceedings for the admeasurement of dower and to set aside a homestead by Armstrong Cassity, as executor of the estate of Presley Pound, deceased, against Mary M. Pound. From a decree in favor of the defendant, plaintiff appeals. Affirmed.

This is a proceeding by the executor of Presley Pound, under section 4546, Rev. St. 1889, to have the homestead set apart to the defendant, and also to have the dower of the defendant in the lands of the deceased admeasured and set apart to her. The defendant renounced the provisions of the will in her favor, and elected to take homestead and dower. In her answer she alleged that the homestead was untenantable, and that she had abandoned her rights to it as a homestead (there were no minor children), and she further asked to have the value of her dower interest computed and paid to her in cash, instead of assigning her dower in kind; but the trial court, on motion of the plaintiff, struck out those parts of her answer, and tried the case upon the theory that she was entitled to homestead and dower both. In his reply the plaintiff aver red that since the institution of this suit the defendant had sold and conveyed all her right, title, and interest to John M. Pound and James S. Pound, and that she no longer had any interest in the subject-matter. The court entered judgment that the defendant was entitled to homestead and dower, and appointed commissioners to set apart the same to her. The commissioners reported that they found that the estate consisted of certain real estate, and then added:

"And after a careful examination of the property we fixed the value of the property as follows, to wit:

                On the hotel building, 2/5 in blk. 26
                  Linneus, Mo. ...............................    $ 1,400 00
                Wanck building and hall, blk. 27
                  Linneus, Mo. ...............................      1,500 00
                Two store buildings, blk. 20, Linneus
                  Mo. ........................................      3,000 00
                Residence, blk. 11, Linneus, Mo., G
                  A. .........................................        700 00
                Bucklin storehouse lot, blk. 4, Bucklinville
                  Mo. ........................................        451 00
                520 acres of land in sections 7, 8,
                  17, and 18, township 59, range 20,
                  Linn county ................................     13,520 00
                                                                  __________
                     Total valuation of the real property .....   $20,571 00
                

— Of which we admeasured and set apart the dower interest of Mary M. Pound, widow of Presley Pound, deceased, the following described real...