Crecelius v. Horst

• Decision Date: 06 November 1877
• Citation: 4 Mo.App. 419
• Parties: THERESA CRECELIUS, Respondent, v. CATHERINE C. HORST ET AL., Appellants.
• Court: Missouri Court of Appeals

4 Mo.App. 419

THERESA CRECELIUS, Respondent, v. CATHERINE C. HORST ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

November 6, 1877

1. Where a husband, with his own money, purchased land, but, for the purpose of defrauding his wife of her right of dower therein, caused the conveyance to be made of a life estate only, to him, with remainder in fee to his daughter; and after his death, his widow elected, under the statute, to take a child's part in the land left by her deceased husband; held, that the widow was not entitled to a child's part in the land so purchased and conveyed, but her election to take a child's part would be regarded as a ratification of the conveyance made at the husband's instance by his vendor.

2. The widow's election to take a child's part did not abridge her right of dower in " the lands whereof her husband, or any other person to his use, was seized of an estate of inheritance at any time during the marriage," but of which, by reason of prior conveyances, he did not die seized.

3. The vendor's conveyance of the remainder to the daughter, at the husband's instance, with whose money the purchase was made, will be treated, in equity, as the husband's conveyance; and, in respect of the widow's dower right it will be regarded that the husband was, during coverture seized of an estate of inheritance in the land which he had conveyed away.

APPEAL fro St. Louis Circuit Court.

Reversed and remanded.

GOTTSCHALK, for appellants, cited: Trorlicht v. Weizenecker, 1 Mo.App. 482; Lightfoot v. Colgin, 5 Munf. 42; Durvet v. Tyrer, 58 Mo. 551; Hornsey v. Casey, 21 Mo. 371; 14 Mo. 495; 16 Mo. 250.

J. A. BEAL, for respondent, cited: Davis v. Davis, 8 Mo. 183; Stone v. Stone, 18 Mo. 389; Tucker v. Tucker, 29 Mo. 353, and 32 Mo. 464; Smith v. Fellows, 29 Ark. 62.

OPINION

LEWIS P. J.

The petition states, in effect, that plaintiff is the widow, and defendant, Catherine Horst, a daughter, of William Crecelius, deceased; that, during the coverture, William Crecelius purchased, with his own money, a lot of land, described in the petition; but, for the purpose of defrauding plaintiff out of any right of dower therein, caused the conveyance to be made of a life estate, only, to himself, with remainder in fee to his said daughter, Catherine; that, since the death of Crecelius, Catherine and her husband have had possession of the land, and have erected thereon a dwelling, in which they reside. Plaintiff prays that the conveyance be cancelled and set aside as to the remainder vested in defendant Catherine, and that dower be assigned to the plaintiff in the premises. She alleges that, in the time and manner required by law, she elected to take a child's part of the lands left by her deceased husband, under the provisions of Wagner's Statutes, page 540, sections 11, 12. Issue was joined in a general denial, and, upon a hearing of the evidence, the court decreed for the plaintiff a child's part (one-third) absolutely, in the land described.

In Davis v. Davis, 5 Mo. 183, the complainant's husband had, a short time before his death, conveyed five slaves, by deed, to his son. The bill alleged that this was done for the purpose of fraudulently defeating the widow's right of dower in the slaves. It was held that these allegations being sustained, the conveyance would be declared void as to the widow, and dower would be assigned to her. In Stone v. Stone, 18 Mo. 389, and Tucker v. Tucker, 29 Mo. 350, the same doctrine was applied to similar states of facts. The general rule is an ancient one, and universally understood. Defendant's counsel refers, however, to Hornsey v. Casey, 21 Mo. 545, and argues that, by reason of the widow's election to take a child's part, in the present case, she cannot claim the benefit of the ancient rule. In the case referred to, the widow had elected, under the 3d and 6th sections of the Dower Act then in force (Rev. Stat. 1845, p. 430), to take one-half of the real and personal estate belonging to her husband at the time of his death, absolutely. The husband had, some time before his death, conveyed away a tract of land, the wife not joining in the conveyance. It was held that she could not have dower, as demanded, for the obvious reason that her election limited her right of one-half to the property owned by her husband at his death, and so excluded it from that which he had previously ceased to own. It was considered that the disposition of the property had operated to defeat, not the right of dower, but the right of an election. Said Scott, J.: " It is unreasonable to expect that the husband's right of disposition should be restrained in order that there may be a foundation for the right of election. On what principle can the widow make an election of the half of the property which remains undisposed of, and then turn round and complain that property had been disposed of which should not have been?" The court, however, expressly refrained from determining whether, by her election, she was barred of her dower, consisting of a life estate in one-third of the land. The principle settled in that case appears to be that, when a widow elects to take a distinctive share in the property of her husband remaining undisposed of at the time of his death, she so far ratifies all his previous conveyances as to be prohibited from impeaching them for the purpose of treating the property as yet undisposed of. ...