Ferguson v. Long

• Citation: 107 S.W.2d 7,341 Mo. 182
• Parties: Pearl Ferguson, Appellant, v. Orvel Long, W. C. Ferguson and Susan E. Antle
• Decision Date: 30 June 1937
• Court: Missouri Supreme Court

107 S.W.2d 7

341 Mo. 182

Pearl Ferguson, Appellant, v. Orvel Long, W. C. Ferguson and Susan E. Antle

Supreme Court of Missouri

June 30, 1937

Appeal from Barry Circuit Court; Hon. E. E. Smith, Judge.

Affirmed.

Kelley & Tatum for appellant.

The filing is the actual delivery of a paper to the clerk without regard to any action that he may take thereon. Grubbs v Cones, 57 Mo. 83. When a paper is taken before the clerk and left with him it is filed; the endorsement "filed" by the clerk is only evidence of the fact. Pullis v. Somerville, 117 S.W. 739. An instrument was filed when it was lodged in the proper office with the intention that it should become operative. Landis v Hawkins, 234 S.W. 827; St. Louis Law Ptg. Co. v Aufderheide, 45 S.W.2d 546. To file and filing mean the act either of the parties in bringing the paper and depositing it with the official, for keeping, or the act of the official in folding, endorsing, and putting up the paper. Abbott's Law Dictionary. To file a paper on the part of a party is to place it in the official custody of the clerk. Black's Law Dictionary. Section 329, Revised Statutes 1929, is remedial and should be liberally construed so as to accomplish its evident purposes.

C. M. Landis and H. A. Gardner for respondents.

The answer in this case concedes that Pearl Ferguson, as widow of George M. Ferguson, deceased, is entitled to dower but denies she is entitled to an estate by election. The answer alleges and the agreed statement of facts shows that J. E. Ferguson, a brother of decedent, was indebted to the estate in an amount greater than the value of his interest therein. By reason of this fact, Orvel Long acquired nothing by purchase at the execution sale of the interest of said J. E. Ferguson. Ayres v. King, 168 Mo. 244, 67 S.W. 558; Duffey v. Duffey, 155 Mo. 144, 55 S.W. 1002; In re Lietman's Estate, 149 Mo. 112, 50 S.W. 307. George M. Ferguson died seized of this land, without lineal descendants, September 22, 1932, and on October 1 thereafter his widow applied for and was granted letters of administration upon his estate. The first publication of notice of her appointment appeared October 5, 1932. Consequently, she had one year from that date to file her election under Section 325, Revised Statutes 1929. It appears from the testimony that the appellant did file an election with the clerk of the probate court within the twelve-month period but she failed to file same with the recorder of deeds as required by this section. This court has held that compliance with this section is mandatory and that it is not sufficient to file the election with the probate court but that the same must also be filed with the recorder. Wash v. Wash, 189 Mo. 352, 87 S.W. 993; McLain v. Mercantile Trust Co., 292 Mo. 122, 237 S.W. 506; Colvin v. Hutchison, 92 S.W.2d 671.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

Plaintiff claiming to be the owner, in fee, of an undivided one-half interest in 254 acres of land, situate in Barry County, brought this action for partition in the circuit court of that county. Judgment was entered denying her prayer for partition and plaintiff appealed. It is apparent that the judgment is based upon a finding by the court that plaintiff did not have title to an undivided one-half interest in the land as alleged in her petition. The statement of the controversy, which we shall presently make, will, we think, demonstrate that "title to real estate" is "involved" so as to give us jurisdiction. [Sec. 12, Art. VI, Constitution of Missouri.]

Plaintiff's husband, George M. Ferguson, a resident of Barry County, died, intestate, "without any child or other descendants in being, capable of inheriting." [Sec. 325, R. S. 1929.] He left surviving him as all and the only persons entitled to an interest in his estate the plaintiff, his widow, and W. C. Ferguson, J. E. Ferguson, brothers, and Susan E. Antle, a sister.

Plaintiff's petition alleged that she was the owner of an undivided one-half interest in the lands described, in that as the widow of George M. Ferguson she had "elected (under the provisions of Sec. 329, R. S. 1929) to take a one-half interest in the real estate of the said George M. Ferguson, deceased, in lieu of dower;" that the 1/6 interest of J. E. Ferguson therein had been purchased at an execution sale by one Orvel Long who thereby became the owner thereof; that Susan E. Antle and W. C. Ferguson "are each the owners of a 1/6 interest in said lands;" that "the personal property belonging to the estate . . . and not sought to be partitioned is more than sufficient to pay all claims and demands against said estate;" that partition in kind cannot be made without great prejudice to the owners of said lands; and prays, "that said lands be ordered sold and the proceeds divided among said parties in proportion to their respective interests." Orvel Long, Susan E. Antle and W. C. Ferguson were made defendants. Long, who was prominently identified with plaintiff's case, as will later appear, did not file an answer or make any contest. Defendants Susan E. Antle and W. C. Ferguson filed a joint answer which denied, that plaintiff was the owner of an undivided one-half interest in the lands by virtue of her alleged election, and, asserted, that plaintiff had not made an election in the manner and within the time prescribed and required by statute; "that the only interest plaintiff has" in the lands "is a life estate in one-third in value of said lands;" and that plaintiff "has no cause of action, except an action to have her dower assigned under Section 318, R. S. 1929."

The sole question is, Did the plaintiff make an effectual election in conformity with the statutory requirements? If so she became entitled to and the owner of a one-half interest, in fee, in the lands. Our statute, Section 325, Revised Statutes 1929, provides that; "When the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: First, . . .; 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." However, this right given to the widow is dependent upon her election to take the interest specified in lieu of dower. The election statute (Sec. 329, R. S. 1929) provides, that the widow must make such election by a "declaration, in writing, acknowledged before some officer authorized to take the acknowledgment of deeds, and filed in the office of the clerk of the court in which letters testamentary or of administration shall have been granted, within twelve months after the first publication of the notice of granting of the same; and such declaration shall also be filed in the recorder's office of the county in which letters testamentary or of administration were granted within twelve months after the first publication of notice of granting of the same, otherwise she (the widow) shall be endowed under the provisions of the preceding sections of this article," that is, a dower interest as defined by preceding sections of the article.

Letters of administration were granted to plaintiff by the Probate Court of Barry County, on October 1, 1932, and first publication thereof was made October 5, 1932. On August 26, 1933, plaintiff appeared before Glenn Reese, clerk of the Probate Court of Barry County, and duly acknowledged a written declaration to take "one-half of the real and personal estate belonging to my said husband at the time of his death, absolutely, subject to the payment of his debts, in lieu of dower," etc. No question is made as to form of this instrument, which plaintiff introduced in evidence. The instrument bears an endorsement showing that it was timely filed in the office of the clerk of the Probate Court of Barry County on September 1, 1933. On December 21, 1933, more than fourteen months after the first publication of notice of the granting of letters of administration, Orvel Long, apparently acting for plaintiff, caused the declaration on file in the office of the probate clerk to be filed in the recorder's office of Barry County. This of course was not a compliance with the provision of the statute requiring that such declaration "be filed in the recorder's office . . . within twelve months after the first publication of notice" of the granting of letters of administration and is of no avail to plaintiff. Plaintiff, however, does not rely upon this filing.

As compliance with the requirement as to filing in the recorder's office plaintiff's evidence, which consists of the testimony of Long and herself, is; that in August, 1933, plaintiff and Long consulted attorneys at Pineville (in McDonald County) and were advised of her right of election; that she and Long returned to her home in Barry County (Long and his family "lived with plaintiff," having "moved in right after" her husband's death); that later the Pineville attorneys "prepared an election and mailed it" to Long with a letter of "instructions," the letter was not produced, Long said, "I don't believe I have it;" that "two papers" were enclosed with the letter; that the "two papers" were "the same," duplicates; that on September 1, 1933, plaintiff and Long took the two papers to the probate office of Barry County where and when plaintiff signed and acknowledged both papers before Mrs. Reese, clerk of the probate court, and at that time filed one of them in that office. This is the declaration in evidence, heretofore mentioned. We now undertake a recital of the testimony of plaintiff and Long as to an alleged filing, in the recorders office, of the other paper, a purported duplicate of the declaration filed in the office of the clerk of the probate c...