Ellis v. Ellis
| Decision Date | 05 June 1906 |
| Citation | 96 S.W. 260,119 Mo.App. 63 |
| Parties | ELLIS, Respondent, v. ELLIS et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.
AFFIRMED.
Judgment affirmed.
Ball & Sparrow for appellant; F. J. Duvall of counsel.
The only question presented by the evidence in this cause is this, can respondent recover four hundred dollars under section 107, R. S. 1899, and at the same time accept the will and take the bequests given her under the will, and at the same time repudiate that part of the will that says, it is given "in lieu of dower." Glenn v. Gunn, 88 Mo.App. 423.
Leslie Edwards and Elliott W. Major for respondent.
(1) Notwithstanding the property allowed the widow under and by virtue of the administration statute is her property absolute and vests in her on the death of her husband, yet the probate court has jurisdiction over the matter and this property should regularly pass through the probate court and the hands of the executor. Respondent's application and petition was, therefore, properly presented to the probate court for an order directing payment of the $ 400 to her. Griswold v. Mattix, 21 Mo.App. 282; R. S. 1899, secs. 107, 108 109. (2) A provision in the will of the husband in favor of the wife will never be construed by implication to be in lieu of dower or any other interest in his estate given by law the design to substitute one for the other must be unequivocally expressed. Hasenritter v. Hasenritter, 77 Mo. 162; Glenn v. Glenn, 88 Mo.App. 423. (3) The property allowed the widow under the administration statutes is no part of her dower. She has an absolute property in it. Bryant v. McCune, 49 Mo. 546.
This case involves the construction of the following will:
The testator left an estate in personalty worth nearly four thousand dollars. 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 the 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. [R. S. 1899, sec. 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 essential attributes from dower.
Inasmuch as the intention of the testator to exclude plaintiff from the allowance must appear in order to prevent her from taking both the allowance and the bequests, she is entitled to both unless the allowance is part of her dower and, therefore,...
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