Ferguson v. Gentry

Decision Date29 June 1907
PartiesFERGUSON v. GENTRY et al.
CourtMissouri Supreme Court

Act March 2, 1895 (Acts 1895, p. 169), is entitled "An act to amend chapter 55 of the Revised Statutes of Missouri 1889, entitled `Dower' by adding a new section thereto to be known as section 4518a" (now Rev. St. 1899, § 2938; Ann. St. 1906, p. 1694), and provides that, when a wife shall die without any descendants, her widower shall be entitled to one-half of the real and personal estate belonging to her at the time of her death, absolutely, subject to the payment of the wife's debts. Rev. St. 1889, § 4518, being a part of chapter 55, entitled "Dower," provides that, when the husband shall die without any descendants, his widow shall be entitled to one-half of the real and personal estate belonging to him at the time of his death, absolutely, subject to the payment of the husband's debts. Const. art. 4, § 28 [Ann. St. 1906, p. 185], provides that no bill shall contain more than one subject, which shall be clearly expressed in its title. Held, that since Rev. St. 1889, c. 55, entitled "Dower," was not limited to the subject of dower in its strict meaning, and the caption "Dower" had headed chapters relating to the widow's interest in her deceased husband's estate other than dower in every revision of the laws, and since the act of March 2, 1895, conferred a reciprocal right on the husband to that conferred on the wife by section 4518, the act of March 2, 1895, was not in violation of Const. art. 4, § 28, in that, though its title declared it to be an amendment of the chapter on "Dower," yet it conferred on the husband a new interest in the estate of the wife, not germane to that subject.

2. CONSTITUTIONAL LAW — RETROSPECTIVE LAWS.

Act March 2, 1895 (Acts 1895, p. 169; Rev. St. 1899, § 2938 [Ann. St. 1906, p. 1694]), providing that, when the wife shall die without descendants, her widower shall be entitled to one-half of the real and personal estate belonging to her at the time of her death, is not, as to a wife who was married and owned land before the statute was enacted, in violation of Const. art. 2, § 15 [Ann. St. 1906, p. 137], forbidding laws retrospective in their operation.

Appeal from Circuit Court, Pettis County; Geo. W. Longan, Judge.

Action by Wilson J. Ferguson against Bettie H. Gentry and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. D. Steele, N. T. Gentry, W. M. Williams, and Geo. P. B. Jackson, for appellants. Sangree & Bohling, Montgomery & Montgomery, and Charles E. Yeater, for respondent.

VALLIANT, J.

This is an appeal from a decree in partition of certain real estate in Pettis county. The petition states that Rubin J. Gentry died in 1881, seised in fee of the land in question, leaving a widow and five children, of whom was Ruby G. Gentry, who in 1892 married the plaintiff, Ferguson, and died in 1900 intestate, without having had issue, and leaving as her heirs at law her mother, a sister, and three brothers, who are the defendants. The widow's dower has been admeasured and set off to her. The petition asserts that by virtue of an act of the General Assembly approved March 2, 1895 (Acts 1895, p. 169), entitled "An act to amend chapter 55 of the Revised Statutes of Missouri 1889, entitled `Dower' by adding a new section thereto, to be known as section 4518a" (which is now section 2938, Rev. St. 1899 [Ann. St. 1906, p. 1694]), the plaintiff is entitled to one-half the estate his wife had in her lifetime in the land in question, which was one-fifth, subject to the life estate of her mother in that part of the land set off as dower. The defendants filed a demurrer to the petition, the point of which was that the act of the General Assembly mentioned was in violation of section 28, art. 4, and section 15, art. 2, of the Constitution of Missouri [Ann. St. 1906, pp. 185, 187], and of section 10 of article 1, and section 1 of the fourteenth amendment, of the Constitution of the United States. The court overruled the demurrer, and defendants declining to plead further, a decree was rendered adjudging that the plaintiff was entitled to the interest claimed by him in the land, defining the interests of the defendants respectively, and appointing commissioners to make the partition. From that decree the defendants have appealed.

The only questions presented for our consideration concern the validity of the act of March 2, 1895. These questions have been considered in former cases and decided adversely to the positions appellants now take. O'Brien v. Ash, 169 Mo. 283, 69 S. W. 8; Waters v. Herboth, 178 Mo. 166, 77 S. W. 305; Spurlock v. Burnett, 183 Mo. 524, 81 S. W. 1221; Gilroy v. Brady, 195 Mo. 209, 93 S. W. 279. But appellants have presented their views with so much force of thought and earnestness that we have again taken the questions for consideration. There are two clauses of our state Constitution to which, according to the views of appellants, this statute is repugnant, to wit: Section 28, art. 4: "No bill * * * shall contain more than one subject, which shall be clearly expressed in its title;" and section 15, art. 2: "That no ex post facto law, nor law impairing the obligation of contracts, nor retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be passed by the General Assembly." We will notice these propositions in the order named.

1. The argument of appellants is that the title to the act indicates that it is an amendment to the statute law of dower, but that instead of relating to the subject of dower it only essays to give an entirely new interest to a husband in the estate of his wife, which is not germane to the subject of dower. We do not disagree with the learned counsel in their definition of the word "dower." In the most frequent use of that word, not only in common parlance but in law language, we mean the life estate which the widow takes to the extent of one-third in the land owned by her husband during coverture whereof she had not parted with her right. If the title to this act indicated that it was to be merely an amendment to the law of dower, the argument of appellants, which in any view of the subject has much force, would be unanswerable. But the title does not say that it is an amendment to the law of dower; it says that it is an amendment to chapter 55, which is entitled "Dower"; it directs attention to that chapter, and when one comes to examine the chapter he will see that it contains many provisions that do not come strictly within the meaning of "dower" as above defined. True, the chapter entitled "Dower" contains nothing not relating to a widow's interest in her deceased husband's estate, but it is not limited to dower strictly so called. The title to the chapter is really no part of the statute; it is a caption adopted by the committee having charge of the publication of the Revised Statutes. This caption "Dower" has headed the chapters relating to the widow's interest in her deceased husband's estate in every revision of our laws from 1825 to 1899, therefore we may presume that all persons familiar with our statute law, as members of the Legislature must be, know that the chapter bearing the caption "Dower" is not limited to the subject of dower in its strict meaning, and they must also know that the word "Dower" has been used in every revision of our statutes, from 1825 to the last, to designate interests other than the interest which alone was implied by the common law in the use of that word. Since, therefore, from the beginning, our General Assembly has taken the liberty to use the word in any connection it has seen fit, how can we now say that when the members of the General Assembly in 1895 saw the bill entitled "An act to amend chapter 55, Rev. St. 1889, entitled, `Dower,'" that it gave them notice only that the law of dower in its original sense was to be amended? The title referred to that whole chapter and the member of the Legislature reading it was warned that legislation was proposed which would add something new to what was contained in that already comprehensive chapter.

At the time this act was passed there was and had been for many years on our statute books section 4518, Rev. St. 1889, as follows: "When the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: First, to all the real and personal estate which came to the husband in right of the marriage, and to all the personal property of the husband which came to his possession with the written assent of the wife, remaining undisposed of, absolutely, not subject to the payment of the husband's debts; second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband's debts." That section was in the chapter entitled "Dower," yet it has no relation to dower in the strict sense of the word. Now suppose there had been no such section in that chapter when the General Assembly met in 1895, and suppose it had then for the first time been enacted under this title, "An act to amend chapter 55, Rev. St. 1889, entitled `Dower,' by adding thereto a new section to be known as section 4518," could it be successfully contended that the subject of that section was not sufficiently expressed in the title to meet the requirement of the Constitution? Although that section might with propriety be said to have no relation to dower, yet it was as germane to that subject as was section 4517 in the same chapter, giving the widow a child's share of the personal property. If section 4518 of that chapter had not before been enacted, and if it could have been, without violation of the Constitution, enacted in 1895 under the title above supposed, why could not the chapter be amended under that title by adding two sections,...

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