Ection v. Tomlinson

• Decision Date: 02 June 1919
• Docket Number: No. 20185.,20185.
• Parties: ECTON v. TOMLINSON et al.
• Court: Missouri Supreme Court

212 S.W. 865

278 Mo. 282

ECTON v. TOMLINSON et al.

No. 20185.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.

Suit by Alice Ecton against Lillie Tomlinson and another. Judgment for plaintiff, and defendants appeal. Reversed.

R. D. Rodgers, of Mexico, Mo., for appellants.

Fry & Fry, of Mexico, Mo., for respondent.

RAGLAND, C.

This is a suit for the recovery of dower, and is here by appeal from the circuit court for Audrain county. The petition is conventional. The answer pleads the decree of divorce hereinafter set out as a complete defense, in that it operated to extinguish dower, as it is claimed, and also by way of estoppel.

Respondent, a widow with two children, in 1901 married one William S. Ragsdale. In 1907 she secured a divorce from him for his fault and misconduct. The decree of divorce as far as material in this case is as follows:

"And the court doth further find that the said plaintiff is entitled to all of the household goods and furniture now in her possession and removed from the residence of the said defendant, and is also entitled to one diamond ring and one diamond stud heretofore taken into her possession from the defendant. It is therefore considered, ordered, and adjudged by the court that the plaintiff be divorced from the bonds of matrimony heretofore contracted between the plaintiff and the defendant, and that she have a judgment for alimony in addition to the property above described in the sum of $1,500, and that the same be paid to her as follows: $500 on or before the first day of April, 1907, and $1,000 on or before September 1, 1907, and that said $1,000 payment bear interest from date at the rate of 6 per cent. per annum, and it is further adjudged by the court that said plaintiff take said property and said debts as alimony in gross and in lieu of all dower and other right in defendant's property, and that defendant's property be free from any further claim by said plaintiff."

The trial court in the instant case, at the request of defendant, made the following special finding of fact:

"The court finds from the evidence that the alimony in gross awarded plaintiff in her suit for divorce amounted to about the sum of $2,500, and that the decree of divorce was prepared and drawn by George Robertson, who was the attorney for plaintiff in the divorce suit, and that the court in the divorce suit in awarding alimony in gross intended to award a sum sufficient to include and compensate plaintiff for the value of her inchoate right of dower, and gave plaintiff substantially more alimony in gross than would have been given her if the question of dower had not been considered in said decree of divorce, and the court further finds that the parties to said divorce suit and their respective counsel so understood said decree of divorce."

Ragsdale had never been married before, and upon his marriage to respondent he provided a home and furnished it. Some months prior to the institution of the divorce suit by respondent she separated from her husband and removed from his dwelling, and took with her his household goods and furniture and the diamonds mentioned in the decree. This property that she took, together with the $1,500 awarded to her as alimony, was equivalent to practically onehalf of all the property owned by Ragsdale. Neither party took an appeal from the decree of divorce, and it became final as to each of them so far as each was concluded thereby. Respondent kept the personal property of her husband mentioned in the decree, and Ragsdale paid the money awarded as alimony. Ragsdale died in March, 1916, and respondent immediately instituted this suit to recover dower in his real estate.

No children were born of the marriage, and consequently Ragsdale left no descendants. One Goldie Ragsdale and defendant Lillie Tomlinson, his nieces, were his only heirs. Goldie conveyed after her uncle's death to her sister Lillie, who upon the institution of the suit was in possession of the lands in which dower is claimed. Defendant Green Tomlinson is the husband of his codefendant, and has no interest in said lands.

The case was tried to the court without a jury. At the request of plaintiff, the court declared as a matter of law that that part of the divorce decree, to wit, "And in lieu of all dower and other rights in defendant s property and that defendant's property be free from any further claim by plaintiff," is absolutely void and of no effect, and is . not binding upon the plaintiff. The court found the issues for the plaintiff, and rendered judgment accordingly. Appellants after an unavailing motion for new trial were duly granted an appeal to this court.

As the evidence indisputably shows that respondent was married to Ragsdale; that at a time during the marriage he was seized of an estate of inheritance in the lands in controversy; that she at no time joined with him in a deed or other conveyance of the same; that she obtained a divorce from him for his fault and misconduct; and that he has since died—she is entitled to dower unless the judgment in the divorce case, under the circumstances under which it was rendered and her subsequent acquiescence therein, operated to preclude her. That judgment decreed to her household goods and furniture and diamonds, the property of her husband, of the value of $1,000, and in addition thereto awarded her alimony in the sum of $1,500, the payment of a part of which was deferred and bore interest. The judgment then recites:

"And it is further adjudged by the court that said plaintiff take said property and said debts as alimony...