Gilroy v. Brady

• Decision Date: 06 March 1906
• Citation: 195 Mo. 205,93 S.W. 279
• Parties: GILROY v. BRADY et al.
• Court: Missouri Supreme Court

93 S.W. 279

195 Mo. 205

GILROY v. BRADY et al.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. DESCENT AND DISTRIBUTION — HUSBAND AND WIFE — STATUTES.

Rev. St. 1899, § 2938, providing what interest a widower shall have in the property of his wife, who dies intestate and without descendants, applies to any wife who died after the passage of the act, whether she and her surviving widower were married prior to its enactment or not.

2. DEATH — PRESUMPTION — ABSENCE.

Where a woman's former husband had been absent and unheard of for more than seven years prior to her marriage with plaintiff, such husband was presumed to be dead, as provided by Rev. St. 1899, § 3144.

3. MARRIAGE — EVIDENCE.

Where the husband of plaintiff's alleged widow had been absent and unheard of for more than seven years at the time of her alleged marriage to plaintiff, and there was no direct evidence as to the time when she was married to her first husband, or that he was living at the time of her marriage to plaintiff, such facts, in connection with the presumption that she was married to plaintiff under the belief that her former husband was dead, justified a finding that plaintiff was her lawful husband and entitled to a widower's share in her property.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Daniel Gilroy against Thomas Brady and another. From a judgment for plaintiff, defendant Brady appeals. Affirmed.

Henry B. Davis, for appellant. Albert C. Davis, for respondent.

BURGESS, P. J.

This is a suit by David Gilroy, husband of Mary Ann Gilroy, deceased, against the devisees named in her will, for the partition of lot No. 16 in subdivision of northeast part of lot No. 2 of Sulphur Springs tract in Gratiot League Square, bounded on the north by lot No. 17, on the south by lot No. 15, on the west by Sulphur avenue, formerly Davis street, and on the east by Delvin street, in the city of St. Louis. During the lifetime of Mrs. Gilroy she owned said property in fee. She had no children, and by her will, which was duly admitted to probate, she gave to her husband, the plaintiff, the sum of one dollar; to her brother Michael Brady, one dollar; and the rest and residue of her estate, real, and personal, and mixed, wherever situate, she gave and bequeathed to her brother, the defendant Thomas Brady, and to his heirs forever. After the death of Mrs. Gilroy the plaintiff conveyed one-half of his interest in the property to the defendant Joseph M. Shortal. The petition alleges: "That the share of said land to which he (plaintiff) is entitled is an undivided one-quarter interest, and that the interest of the defendant Joseph M. Shortal in and to said land is an undivided one-quarter interest, and that the interest of the defendant Thomas Brady in and to said land is an undivided one-half interest. Plaintiff further states that Mary Ann Gilroy, his wife, lately departed this life without children, seised of the property aforesaid, and that an undivided one-half interest in the same descended to him, and an undivided one-half interest descended to the defendant Thomas Brady, and that heretofore, to wit, on the 18th day of June, 1902, plaintiff conveyed half of his interest in the real estate aforesaid, or an undivided one-quarter interest in the whole lot, to the defendant Joseph M. Shortal. Plaintiff further alleges that the other property of the said Mary Ann Gilroy is more than sufficient to pay all claims and demands against her said estate." The defendant Brady's answer was a general denial. Shortal made default.

The court rendered judgment in favor of the plaintiff, as follows: "On this day comes the plaintiff, David Gilroy, by Albert C. Davis, his attorney, and the defendant Thomas Brady by his attorney, H. B. Davis, and the defendant Joseph M. Shortal, although duly summoned, appeared not but makes default, and submit to the court the matters in controversy upon the pleadings and evidence adduced; and the court being duly advised in the premises doth find that the allegations of plaintiff's petition herein are true. The court doth further find that plaintiff, David Gilroy, is the widower of Mary Ann Gilroy, deceased, and that said Mary Ann Gilroy died without any child or other descendant capable of inheriting from her, and...