Chrisman v. Linderman

• Decision Date: 22 February 1907
• Citation: 100 S.W. 1090,202 Mo. 605
• Parties: CHRISMAN v. LINDERMAN et al.
• Court: Missouri Supreme Court

100 S.W. 1090

202 Mo. 605

CHRISMAN v. LINDERMAN et al.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. DOWER—FORFEITURE—REMARRIAGE—HOMESTEAD—MERGER OF ESTATES.

Rev. St. 1899, § 2933 [Ann. St. 1906, p. 1690], declares that every widow shall be endowed of a 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 for life. Section 3620 [Ann. St. 1906, p. 2039] provides that if any housekeeper or head of a family shall die leaving a widow or minor children, his homestead to the value of $1,500 shall vest in the widow or children, which the widow shall enjoy for life or widowhood, and section 3621 [Ann. St. 1906, p. 2042] declares that where both homestead and dower exist, the commissioners appointed to set out the homestead shall also set out the dower, that the homestead shall be first set out, and that dower shall be diminished by the interest of the widow in the homestead, but that no dower shall be assigned to the widow when the homestead equals or exceeds one-third interest for and during her natural life, in and to all the real estate of which the husband died seised. Held, that where intestate's real estate of which he died seised consisted only of his homestead, which was of the value of $1,500, there was no merger of the widow's dower in her homestead estate, and hence her remarriage did not forfeit her right of dower in such property.

2. SAME—ASSIGNMENT.

Rev. St. 1899, § 3621 [Ann. St. 1906, p. 2042], providing that when the interest of intestate's widow in the homestead shall equal or exceed one-third interest for and during her life in and to all the real estate of which her husband shall have died seised, no dower shall be "assigned" to such widow, only prohibits the assignment or setting off of the widow's dower interest, and does not bar her dower right.

3. SAME—HOMESTEAD LAW—EFFECT.

Laws 1895, pp. 185, 186, amending the homestead law so as to make the widow's homestead right determinable on her remarriage, was not effective to deprive the widow of dower because of remarriage.

Appeal from Circuit Court, Putnam County; P. C. Stepp, Judge.

Action by J. W. Chrisman against C. W. G. Linderman and others. From a judgment for plaintiff, defendants appeal. Reversed.

See 81 S. W. 461.

N. A. Franklin, for appellants. Higbee & Mills, for respondent.

LAMM, J.

Anthony Wishon departed this life in Putnam county in 1898, leaving behind him a widow (Thirsey), a homestead and debts; but neither will nor child. The public administrator of said county, one Chrisman, under orders of the probate court, took upon himself the burden of administering upon Wishon's estate. The widow remarried; her new yokefellow being Menzo House.

Presently thereafter said administrator commenced proceedings to sell the homestead to pay debts, which proceedings ripened into an order of sale, a sale and an approval thereof, and an administrator's deed in 1900; defendant Linderman becoming the purchaser at an expressed consideration of $1,254.75. It seems the homestead comprised 65 acres of land, and it stands conceded that its value, as agreed on between Chrisman and Linderman, was $1,500. After the administrator's sale and deed a squabble arose between Chrisman, Linderman, and the former widow, Mrs. House, over her right to dower; and this suit in equity resulted, whereby the administrator seeks to recover of Linderman $245.25, a sum said to represent Mrs. House's dower right; it being the difference between the sum paid by Linderman to the administrator and said actual value of the land. The suit resulted in a decree in favor of the administrator in said sum, which amount was made a charge upon the land, and from that judgment Linderman appealed to the Kansas City Court of Appeals. On the theory the title to real estate was involved, that court transferred the cause to this court.

Three petitions were filed by plaintiff. Defendant Linderman lodged demurrers against the first two, having for grounds that they did not state facts sufficient to constitute a cause of action. These demurrers were successively sustained. Thereat plaintiff filed a second amended petition. This in turn was challenged by a pleading called in the record a "motion to strike out." The motion, however, is a dual pleading. In so far as the grounds of the motion aver a departure from the original petition, it may be technically considered a motion to strike out. But the motion did not stop there; it took a further step, and, assuming the office of a demurrer, challenged the petition as not stating facts sufficient to constitute a cause of action. Whether it be deemed a motion or demurrer, it was overruled and defendant excepted, and stood on his motion. In this court it is argued by defendant's learned counsel that the second amended petition states no cause of action. It is also argued that if it states any cause of action, it is a new and different cause of action from the one stated in the original petition; in other words, that the second amended petition, placed side by side with the original petition, shows a departure. As we interpret plaintiff's position, it is, first, that there is no departure; and, second, that if departure there be, such departure arises in the first-amended petition, and not in the second-amended petition; that is, that the two amended petitions state the same cause of action, and if any vice of the character insisted upon by defendant exists, it can be seen only when the first-amended petition is placed side by side with the original petition. And plaintiff goes further, and seeks to avoid the force of defendant's claim of departure by insisting that when a demurrer was lodged against the first-amended petition the effect of that form of pleading was to waive the departure, and, said departure being waived, the right to insist upon it (once lost) cannot be revived.

These questions of pleading are learnedly discussed by counsel, pro and con; but, in the view we take of the case, they are not decisive, and therefore need not be considered. Our notion is that the turning point in the case is in defendant's main contention, to wit, that the petition states no cause of action, and that the court had no jurisdiction to enter the decree it did. The ultimate question involved in this contention may be formulated as follows: If a widow be vested with a homestead on the death of her first spouse (that being all the real estate of which he died seised) does she lose, not only her homestead, but also her dower, by a remarriage?

In order to show how the foregoing question arises on the record, it will be well to squeeze into a nutshell the constitutive elements of plaintiff's cause of action, as set forth in a voluminous bill. Thus: After averring the facts hereinbefore set forth, it is alleged that on the death of Wishon his homestead vested in his widow, Thirsey, during her lifetime or widowhood, as her homestead, and that she had no dower therein; that she continued to occupy the homestead after the death of Wishon until she married Menzo House; that by her marriage she forfeited her homestead and all title in and to said premises; that after the order of sale by the probate court, and prior to the purchase by Linderman, he and the administrator opened negotiations for the purchase of the land at private sale under the terms of the order; that Linderman believed, or pretended to believe, that Mrs. House had dower in the land, and stated such to be a fact to the plaintiff; that the widow did the same and was represented by an attorney who gave similar assurances; that plaintiff did not have the advice of counsel and believed said representations; that as the result of said negotiations, and moved thereto by said representations, it was agreed between plaintiff Linderman and Mrs. House that the land was worth $1,500, and Linderman would pay that price; that the interest of the estate of Anthony Wishon in the land was valued at $1,254.75, and the pretended dower at $245.25, and Linderman was to pay the first-mentioned sum to plaintiff, and the latter sum to Mrs. House—she and plaintiff agreeing to convey said respective interests to Linderman; that plaintiff reported the sale, the report was approved, and he made his deed in accordance with the agreement, which deed conveyed all the interest and estate of deceased in the premises; that it was understood between plaintiff and Linderman that plaintiff was conveying and Linderman was acquiring by that deed the fee-simple title, subject to the dower; but this was a mistake of fact, superinduced by plaintiff's ignorance, and by the aforesaid representations; that in truth and in fact plaintiff sold and conveyed the fee-simple title absolute, subject to no dower interest—plaintiff thereby conveying, and Linderman thereby receiving, a greater interest than plaintiff intended to convey, or than Linderman pretended to believe he was receiving; that if Linderman was honest in his representations, then the mistake was a mutual mistake of fact; but, if dishonest in his representations and beliefs, then he intentionally practiced a fraud upon plaintiff; that at once upon receiving plaintiff's deed Linderman turned about and snapped his fingers at Mrs. House, claiming she had no dower; but that he had acquired the full fee from plaintiff by his administrator's deed, and he thereupon refused to pay the widow said sum; that defendant is responsible for plaintiff's mistake of fact relating to said dower and his belief in its existence, and thereby secured the fee-simple title to said premises for the sum of $1,254.75, instead of for $1,500, which, by the contract of sale, he agreed to pay, and thereby wronged the estate of Anthony Wishon out of the difference. Wherefore plain...