Chinn v. Stout

• Decision Date: 31 July 1847
• Parties: CHINN v. STOUT.
• Court: Missouri Supreme Court

10 Mo. 709

CHINN

v.STOUT.

Supreme Court of Missouri.

July Term, 1847.

APPEAL FROM MONROE CIRCUIT COURT.

HOWELL, for Appellant. 1. The object of the last clause of the third section of the Dower act, is, that when there is no issue of the last marriage, and the marriage relation is dissolved by the death of the husband, the wife shall occupy, if she so desire, a more eligible position in regard to the property she brought into the marriage, than where there is issue, and the act should be liberally construed to carry out said intent of the Legislature. 2. The election by the widow, as in this case, is, and should be, looked upon as a sale by the widow of her dower in the estate of her husband, and the consideration by her given for it is no less than the one-third of the real estate of her husband for her life; the right to remain in the dwelling-house, and the plantation thereto adjoining, free of charge, till her dower is assigned; the $200 allowed to widows free from the claims of creditors, and other property allowed her by the administration act, &c., &c. none of which is liable to creditors, but goes to their benefit, and to the benefit of the heirs of the husband, by her election to take the property which remains, that came to the husband by her. 3. After an election by the widow, as in this case, the two estates previously united by means of the marriage, again become separative, having no claims the one upon the other. 4. The two estates becoming so separative, the wife's estate, withdrawn by her election and at the price of her dower in her husband's estate, can only be disturbed by creditors of the husband, and by them only after they have first exhausted his estate, real as well as personal. 5. The property taken by the widow is only the remaining property which was brought into the marriage by her. It is property which has received no benefit from the debts of the husband. It is property which was not purchased with the debts which the husband owes; as, in this case, one of the largest debts owing by the estate, as the record shows, is a debt which accrued for the purchase of a part of the identical land which is asked to be sold for the payment of that and other debts. 6. This is not a contest between the widow and the creditors of the husband, but between her and the heirs of the husband, as to which fund should be first taken for the payment of the debts. 7. The rights surrendered by the widow, in this case, as in most other cases they will be, were valuable, and the heirs of the husband have had the benefit of them, in their application to the payment of the debts, and now to take her property for the payment of the debts, and in exoneration of the land, without indemnifying her in any way for the rights so by her surrendered, for the privilege of taking back remaining property, would be grossly unjust, and could not have been intended by the Legislature.

To hold that the property so taken by the widow must be sold before the husband's lands, for the payment of his debts, would be virtually repealing the third section of the Dower act, or driving it out of use, as the widow is required to make her election in six months, and creditors have three years to prove up their debts; and as it is not unfrequently the case that the bulk of the husband's estate consists in land, and the wife's in negroes and other personal property. But if the widow's property so taken can be made subject to the debts before the land is exhausted, it should only be in a rate of contribution with the land in proportion to value. The objection in the County Court to the making of the order for the sale of the land, does not appear to be made by...