Casteel v. Potter

• Decision Date: 15 June 1903
• Citation: 75 S.W. 597,176 Mo. 76
• Parties: CASTEEL v. POTTER et al.
• Court: Missouri Supreme Court

75 S.W. 597

176 Mo. 76

CASTEEL v. POTTER et al.

Supreme Court of Missouri.

June 15, 1903.

DOWER—WIDOW'S QUARANTINE—LANDS UNDER CONTRACT—UNPAID PURCHASE MONEY —PAYMENT AFTER DECEDENT'S DEATH.

1. Rev. St. 1899, § 2933, provides: "Every widow shall be endowed of the third part of all the lands whereof her husband * * * was seised of an estate of inheritance at any time during the marriage." Section 2935 provides: "If the husband shall have made a contract for lands, and at the time of his decease the consideration shall not have been paid, but after his death the same shall be paid out of the assets of his estate, his widow shall be endowed of the third part of said lands, in the same manner as if he had been seised of an estate of inheritance in such lands at any time during the marriage." Section 2936 provides that if the husband made a contract for the purchase of land, and paid a part only of the purchase price, and the land is sold after his death under a judgment, or under a power created by the contract or his will, the widow shall have dower in the land against every person except those holding a lien for the unpaid purchase money and those claiming under them. A husband purchased a tract of land subject to two trust deeds, and subsequently purchased 17 acres adjoining, which was unincumbered, establishing his home on the land purchased and using the whole as his farm. After his death his executor sold both tracts and paid off the deeds of trust, the balance of the proceeds going into the assets of the estate and being used to pay the debts of deceased. Held, that his widow was entitled to dower in the whole farm, and the purchaser from the executor took subject to her rights.

2. Being entitled to dower, the widow was entitled to quarantine in the mansion house and plantation, which here embraced all the land, until dower was assigned to her.

Valliant, J., dissenting.

In Banc. Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Mary C. Casteel against Herman Potter and others. Judgment for defendants, and plaintiff appeals. Reversed.

R. Frank Jones and Wm. Aull, for appellant. W. H. Chiles and Jno. S. Blackwell & Son, for respondents.

MARSHALL, J.

The following opinion, heretofore rendered in Division No. 1, is hereby adopted as the opinion of the Court in Banc, with the express understanding, however, that what is herein said shall not preclude the defendants, upon a trial anew, from relying upon and showing that the plaintiff abandoned the premises, or that she is estopped to claim quarantine:

This is an action by the widow of Thomas H. Casteel for her quarantine in about 340 acres of land in Lafayette county. The husband died on December 13, 1891, testate, and making provision in his will for his wife. She renounced the will and elected to take her dower under the statute, and afterwards, on May 9, 1899, brought this action for quarantine and another action for dower. The circuit court entered judgment for the defendants, and the plaintiff appealed.

The case made is this: On August 21, 1889, Thomas H. Casteel bought a tract of land of about 323 81/100 acres, known as the "Maloney Tract." At that time there were two deeds of trust on the land, made by Maloney and wife—one to Geo. M. Catron, curator, dated July 15, 1887, securing a note for $6,150, payable at three years with 8 per cent. interest from date, and the other of the same date to Turner Williamson for $1,588.20. Casteel took the land with these incumbrances on it, and therefore he acquired only the equity of redemption in the land. He did not, however, assume the payment of the deeds of trust. Afterwards, on August 30, 1890, Casteel purchased 17 acres of land that adjoined the aforesaid land. This last-named land was, and ever since has been, free and clear of incumbrance. Casteel then established his home upon the land so purchased, and used the whole of it as one farm. He died on the 13th of December, 1891, never having paid the two deeds of trust upon the 323 acres. After renouncing the provisions of the will, the plaintiff remained in possession of the home and the plantation for quite a while, and enjoyed all the rents and profits arising therefrom. The defendants set up in their answer that she abandoned the premises, and that she was estopped to claim quarantine; but the court declared, by the third instruction given for the plaintiff, that the evidence did not support these defenses, and therefore found those issues for the plaintiff. The defendant did not except to this ruling, and did not appeal therefrom, so that those issues are not open to review in this court. The personal estate was not sufficient to pay the debts, and hence, at the August term, 1893, of the probate court, the executor procured an order for the sale of all the real estate. Under this order the executor on May 29, 1894, sold the 17-acre tract to the defendant Potter for $545.50, and thereafter, on May 31, 1895, he sold the 323-acre tract to the defendant Potter for $10,660. With these funds the executor paid off the two deeds of trust, aggregating at that time $10,320.07, and the balance of the $10,660, amounting to $339.93, together with the $545.50 realized from the sale of the 17 acres, and aggregating $884.43, went into the assets of the estate, and was used to pay the debts of the deceased. After these sales the executor put the defendant Potter in possession of the land, and thus the matter rested from 1895 to 1899, when this suit for quarantine and the other suit for dower were instituted.

1. "By the seventh section of Magna Charta the widow was allowed, under a right known as `quarantine,' to remain in the mansion house 40 days after the death of her husband, during which time her dower was to be assigned, and during her continuance a reasonable support was allowed her out of the estate." 10 Am. & Eng. Enc. Law (2d Ed.) p. 148. The statute of Missouri (section 2954, Rev. St. 1899) provides: "Until dower be assigned, the widow may remain in and enjoy the mansion house of her husband, and the messuages or plantation thereto belonging, without being liable to pay any rent for the same." Because of this right to remain in (the term at common law was "tarry in") the mansion house of her husband until dower is assigned her, it is important to note what the dower rights of a widow are; for, if she is not entitled to dower, she is not entitled to quarantine. Our statute (Rev. St. 1899, § 2933) is as follows: "Every widow shall be endowed of the third part of all the lands whereof her husband, or any other person to his use, was seised of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished her right of dower, in the manner prescribed by law, to hold and enjoy during her natural life," etc. The term "estate of inheritance" has an accepted and settled meaning in law. It means an estate that will descend to a man's heirs by the simple operation of law, and it may be an absolute or fee-simple estate, or it may be a limited estate, such as a base fee, or (at common law) a fee tail. Therefore it does not include an estate for the life of the husband, or other lesser estates. Cooley's Blackstone (4th Ed.) *104 et seq. Our statute as to dower is almost identical in this respect with the common law. Cooley's Blackstone (4th Ed.) *129. The "estate of inheritance" here referred to need not necessarily be free of incumbrance or lien; for its inheritable character is sufficient to pass the title to the heir, subject to the lien or incumbrance, just as it stood in the ancestor. Until the passage of the dower act in England, dower was not permitted in mortgaged estates. Scribner on Dower (2d Ed.) c. 22, p. 463. But such is not the law in most of the United States. Certainly, ever since 1845 (Rev. St. 1845, p. 430, c. 54, § 1), dower in mortgaged estates has been permitted in Missouri. Atkinson v. Stewart, 46...