Daudt v. Musick

• Decision Date: 01 June 1880
• Citation: 9 Mo.App. 169
• Parties: CHARLES DAUDT ET AL., Appellants, v. D. O. MUSICK, Respondent.
• Court: Missouri Court of Appeals

9 Mo.App. 169

CHARLES DAUDT ET AL., Appellants,

v.D. O. MUSICK, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 1, 1880.

1. Where a man over seventy years old dies, having resided in one place more than forty years, that his neighbors knew nothing of his family and never heard him speak of a brother or sister, or their descendants, is not evidence that he had no such relatives.

2. An election of dower by a widow must be filed in the Probate Court within the time limited by the statute.

3. That a paper purporting to be an election of dower was filed and recorded in the recorder's office and placed with the papers of the estate in the Probate Court is not evidence of an election of dower under the statute

4. Where the testator plainly intends a bequest to be in lieu of dower and homestead, and there has been an acquiescence by the widow, a claim of homestead cannot be set up by her legal representatives against a purchaser at a sale under a power in the will.

APPEAL from the Circuit Court of St. Louis County, EDWARDS, J.

Affirmed.

CHARLES DAUDT and B. B. KINGSBURY, for the appellants: Ejectment is the proper remedy.-- McCourtney v. Mathes, 47 Mo. 533; Pounds v. Dale, 48 Mo. 270; McCracken v. McCracken, 67 Mo. 591. The will of George Stephenson, deceased, contained a devise in trust, which was void; he subsequently died intestate, and the land descended to his widow as his sole heir.-- Schmucker v. Riehl, 61 Mo. 593; Judge v. Lackland, 3 Mo. App. 107. Where land is devised upon a trust which is void, the heir is entitled to recover.-- Hillyard v. Miller, 10 Bay, 326; Parsons v. Snooks, 40 Barb. 144; Burdett v. Wright, 2 Barn. & Ald. 710; Hunt v. Rousmaniere, 8 Wheat. 207. If there is a power of sale contained in a will for an illegal purpose, that power must necessarily be void.--2 Sugden on Powers, 158; Owen v. Ellis, 64 Mo. 80. The evidence offered as to the heirship of the widow was competent.--Ph. on Ev. 250, note 90; Doe v. Deakin, 4 Barn. & Adol. 433; Jackson v. Cooly, 8 Johns. 128; Knox v. Fowler, 11 Pick. 302; Jackson v. Etz, 5 Conn. 314; Sicrist v. Green, 3 Wall. 744; Flower v. Haralson, 6 Yerg. 494; Ende v. The State, 6 Yerg. 364; Ford v. Ford, 7 Humph. 92. The widow was entitled to homestead.-- Meech v. Meech, 37 Vt. 414; Skouten v. Wood, 57 Mo. 380.

FISHER & ROWELL, for the respondent: If the widow desires to take dower or homestead in the property devised, she must make her election.-- Meech v. Meech, 37 Vt. 414; Skouten v. Wood, 57 Mo. 380; Sheathfield v. Sheathfield, 1 White & Tudor Ld. Cas. 383. The plaintiffs are estopped by the agreement to sell, and election to take under the will, and receipt of the proceeds.-- Sutton v. Hayden, 60 Mo. 101; Hart v. Giles, 67 Mo. 175. “Ejectment will not lie for pretermitted heirs, when third parties' rights have intervened.”-- Stevens v. Stevens, 7 Mo. 91; Hill v. Martin, 28 Mo. 78; Chouquette v. Barada, 28 Mo. 490; Boyer v. Dively, 58 Mo. 510.

BAKEWELL, J., delivered the opinion of the court.

This is ejectment, brought by the curator of Annie and Minna Winkel, who are minors, against defendant, who is the lessee of Maurice Blume. The cause was tried by the court, a jury being waived. The finding and judgment were for defendant.

It appears that George Stephenson, who died in September, 1868, by his last will devised to his widow, Agnes, the house and lot on which he lived, in Florissant, to be held by her during life or widowhood, in case of her death or marriage the property to be sold by his executor, and the proceeds to be given to the Catholic Church in Florissant. His other property, consisting of real estate in Florissant, was to be sold by the executor, and the proceeds given to the Catholic Church in Florissant. Samuel James qualified as executor under the will. The widow survived her husband only four months. She was his second wife, and left at her death two children by a former husband, and also the plaintiffs, Annie and Minna. who are the children of a daughter of Mrs. Stephenson by her former husband, who died before her mother. These grandchildren were not mentioned in Mrs. Stephenson's will. By its provisions she bequeathed all her property to her two surviving children, Mary Schuette and Theresa Reiners. On December 30, 1868, Mrs. Stephenson filed in the recorder's office of St. Louis County an instrument purporting to be an election of dower, by which she chose one-half of the real and personal property, subject to debts. The executor of George Stephenson proceeded to sell the real estate under the power in the will, and without orders from the Probate Court. He sold the property in question here, that devised to the wife, on April 4, 1870, to Maurice Blume, the lessor of defendant, and the remaining property to one Bockrath.

It is claimed by appellant that the devises in the will of George Stephenson, being in violation of sect. 13, Art. I., of the Constitution of 1865, were void, and that he died intestate; that it appears that he left no father or mother, brother or sister, or their descendants; and that his widow was his sole heir under the Statute of Descents, and that plaintiffs, therefore, were together entitled to one-third, or a child's share, as heirs of their mother. It is further contended that, as homestead property, the house and lot in controversy went, on the death of George Stephenson, to his wife and her children in fee, and that plaintiffs are thus entitled to one-third. At any rate, it is held by appellants that Mrs. Stephenson's claim of dower was good and that it vested in her a one-half interest in the property, and that plaintiffs are, as her heirs, entitled together to one-half of that third.

No instructions are preserved in the record as given or refused at the trial. What view the trial court may have taken of these theories of plaintiffs, we do not know. It held, as a matter of law, that plaintiffs were not entitled to recover on the legal evidence in the case. In this we think the trial court was right, and we see no ground for reversing its judgment. The bequest or devise for religious and charitable purposes was void under the Constitution in force at the time the will was executed and proved. The devise, however, was not to the executor as trustee. The executor sold under a power, and it does not follow that, because the intention of the testator that the proceeds of his real estate should be given in charity must be defeated, therefore the provision that the land shall be sold must be disregarded, and that the sale under the power is absolutely bad and passes no title. But upon that question it is not necessary for us to pass, and we do not do so. The question is as to the rights of plaintiffs, not as to the rights of defendant's lessor.

Under the law of descent the real estate of deceased went to the wife, if George Stephenson had no children or their descendants, father, mother, brother, or sister, or their descendants. Wag. Stats. 529, sect. 1. We see no evidence whatever that Agnes Stephenson was the heir of her husband. Stephenson's age when he died is variously estimated by the witnesses at from seventy to eighty-seven. He came from Virginia, and had lived for nearly half a century continuously in the Florissant Valley. No relative of his was examined, nor was there any testimony from any one who had ever known his family, or who knew anything whatever of his father and mother. Blume, a neighbor for five years, had never heard of brothers or sisters. Reiners, a step-daughter's husband, never heard of brothers or sisters. The strongest testimony is that of the executor. He had known deceased for forty years. He says the nearest relative Stephenson ever told him of was a brother of his first wife, and the witness never heard of brothers or sisters of deceased. He never had any conversation with deceased on the subject of his family, or as to whether he had brothers or sisters. All this, we think, amounts to nothing. It does not tend to prove that the father and mother of...