Grady v. McCorkle

• Decision Date: 31 July 1874
• Citation: 57 Mo. 172
• Parties: CHARLOTTE GRADY, Appellant, v. MARTIN A. MCCORKLE, et al., Respondents.
• Court: Missouri Supreme Court

57 Mo. 172

CHARLOTTE GRADY, Appellant,

v.MARTIN A. MCCORKLE, et al., Respondents.

Supreme Court of Missouri.

July Term, 1874.

Appeal from Howard Circuit Court.

Thos. Shackleford, for Appellant.

I. The court will not estop a widow in her claim for dower by proceedings at law, unless it is manifest that the question in relation to her rights was properly adjudicated. (52 Mo., p. 98.)

Lay & Belch, for Respondents.

I. The matter of the widow's dower estate was distinctly in issue, and was actually passed on in the former suit, and the question is res judicata. (Freem. Judgm., § 246, et seq.)

II. One object of the proceeding was to have the value of the land determined so that it might be charged against Leonard Grady, his widow and heirs, as an advancement. The determination of the value of the land for this purpose necessarily required the court to take into consideration the dower estate of Charlotte Grady.

WAGNER, Judge, delivered the opinion of the court.

This was a suit commenced in the Circuit Court of Howard county, against the defendants, the widow and heirs of Leonard Grady, deceased, for the assignment of dower in certain real estate. From the record it appears, that in the year 1859, William Grady, the plaintiff's husband, was seized of the land in controversy, and agreed with his son, Leonard Grady, that if he would go on the land and improve it, he would convey the same to him by deed, by way of advancement, and charge him with its value at the time he took possession.

Under this agreement Leonard took possession of the land and made improvements on the same, and continued to reside on and cultivate it up to the time of his death.

William Grady died without having conveyed the land according to the agreement, and without having fixed any price thereon, to be charged as an advancement.

In the year 1865, after the death of William and Leonard--the father and son-- the widow and heirs at law of Leonard, who are the defendants in the present case, filed their petition in the Circuit Court against the plaintiff and the heirs of William, setting out the facts as above stated, and praying the court to decree that the land should be held by them as the widow and heirs of Leonard, as if the same had been conveyed to him by William in his life time, and to fix a valuation thereon, at which they should be charged for the same.

In this proceeding plaintiff was duly served with process, but made no answer. The court made a decree in accordance with the prayer of the petition, declaring that the land “described be, and the same is hereby vested in the plaintiffs, to be held by them as if the same had been conveyed by said William Grady in his life time, to the said Leonard Grady, and that the title of defendants, as the widow and heirs of William Grady be divested.”

The court below held that this decree barred the plaintiff, the widow of William Grady, from having any dower in the premises, and this is the only question in the case.

The statute provides that “every widow shall be endowed of the third part of all the lands whereof her husband, or any other person to his use, was seized, of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished her right of dower, in the manner prescribed by law, to hold and enjoy during her natural life.” (1 Wagn. Stat., 538, § 1.)

The right of dower attaches whenever there is a seizin by...