Ellis v. Ellis

• Decision Date: 05 June 1906
• Citation: 119 Mo. App. 63,96 S.W. 260
• Parties: ELLIS v. ELLIS et al.
• Court: Missouri Court of Appeals

96 S.W. 260

119 Mo. App. 63

ELLIS v. ELLIS et al.

St. Louis Court of Appeals. Missouri.

June 5, 1906.

EXECUTORS AND ADMINISTRATORS—WIDOW'S STATUTORY ALLOWANCE—WAIVER—ACCEPTANCE OF WILL.

The acceptance by a widow of a bequest given to her by her husband's will, with a provision that it shall be in lieu of dower, does not destroy her right to the allowance given her by Rev. St. 1899, § 107, providing that in addition to other allowances the widow shall be entitled to select and receive personal property of the value of $400.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Catherine V. Ellis against John Ellis and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Ball & Sparrow, for appellants. Leslie Edwards and E. J. Major, for respondent.

GOODE, J.

This case involves the construction of the following will:

"I, William S. Ellis, of the county of Pike and state of Missouri, being of sound mind, do make and publish this my last will and testament, revoking all others.

"I give, devise and bequeath all of my property, real and personal in manner following, to wit:

"1st. I desire and direct that all my just debts be paid, including necessary expenses that may be incurred after my death.

"2d. I give and bequeath unto my beloved wife, C. V. Ellis, all my household goods on hand at my death.

"3d. I give and bequeath unto my said wife one-half of all my personal property, except the above named household goods in lieu of dower.

"4th. I give and devise unto my said wife my home farm, consisting of two hundred and nineteen (219) acres, so long as she remains my widow; in the event of her death or her marriage, I direct that my real estate shall go two-thirds (2/3) absolutely to my beloved son, John T. Ellis, and one-third (1/3) absolutely to my beloved grandson, William A. Ellis.

"5th. I give and bequeath unto my said son, John T. Ellis, one-third (1/3) of all my personal property other than household goods above disposed of.

"6th. I give and bequeath unto my said grandson, William A. Ellis, one-sixth (1/6) of all my personal property, other than household goods above disposed of.

"7th. I appoint my said wife, C. V. Ellis, and my said son, John T. Ellis, now residing in said county of Pike, executrix and executor of this my last will and testament.

"In testimony whereof I have hereunto set my hand this fifth day of May, 1898.

                                          "Wm. S. Ellis."
                

The testator left an estate in personalty worth nearly $4,000. His widow, the plaintiff, applied for an allowance of $400 out of this personal estate, and her application is contested by the other legatees on the ground that she has agreed to accept the testamentary provisions made for her which are said to be inconsistent with her right to take the allowance.

The general rule of law is that a legatee must choose between testamentary bequests and the interest or estate the law gives him, independently of the will, in the property of the deceased, if the will shows a clear intention on the part of the testator that the legatee shall not enjoy both the testamentary and the legal provisions. He cannot take both under the will and in opposition to it. Graham v. Roseburgh, 47 Mo. 111; Ball v. Ball, 165 Mo. 312, 65 S. W. 552. For a widow to be deprived of her dower, or a statutory allowance, by accepting a bequest in her favor contained in the will of her deceased husband, the purpose must be plain. In support of the position that plaintiff is entitled to take both the legacies and the statutory bounty of $400 out of her husband's personalty, reliance is placed on the decision in Glenn v. Glenn, 88 Mo. App. 423. In each will the testator undertook to dispose of all his personal property among his wife and certain other legatees, and there is no material difference between the two documents, except that in the will before us the bequest to the wife is expressed to be "in lieu of dower." The question for decision is whether by accepting the bequests of personalty when the terms of the will said the bequests should be in lieu of dower, the plaintiff lost her right to the statutory allowance. In the Glenn Case we reviewed the authorities bearing on this question. The general rule of law governing the effect on a widow's right to statutory allowances out of her husband's estate of the acceptance of bequests in her favor, is that the bequests do not exclude her right to the allowances unless the will so states in express terms, or contains provisions which clearly indicate that it was the intention of the testator that she should not receive both the bequests and the allowances. Our statutes give a widow a dower in the personal estate of a deceased husband. If the husband leaves children, this dower right in personalty is taken absolutely, and is equal to a child's share. Rev. St. 1899, § 2937. It is subject to the debts of the deceased. The allowance given by section 107 of the Statutes is not subject to his debts. The statute does not designate the allowance of $400 out of personal estate as dower, but says it shall be deducted from the widow's dower in the personalty. Nevertheless, it has been called part of her dower occasionally. This designation of it has been condemned as inexact in decisions holding that the allowance differs in its...