Hall v. Smith

• Decision Date: 24 February 1891
• Citation: 15 S.W. 621
• Parties: HALL v. SMITH.
• Court: Missouri Supreme Court

15 S.W. 621

HALL v. SMITH.

Supreme Court of Missouri, Division No. 2.

February 24, 1891.

RIGHT TO DOWER — LANDS PREVIOUSLY CONVEYED — ELECTION.

In an action for the assignment of dower, it appeared that the husband at different times during his married life, had made conveyances of land to four out of five of his daughters for nominal considerations, of which they took possession; that his wife did not join therein; that he left a will by which he devised to his wife a life-estate in his home farm, and directed that his daughters should share equally in his estate, and charged those to whom he had conveyed lands with the amounts at which they had been valued. The widow accepted the provisions made for her. Held that, as the husband did not die seised of the lands previously conveyed to his daughters, Rev. St. Mo. 1879, § 2199, providing that "if any testator shall, by will, pass any real estate to his wife, such devise shall be in lieu of dower out of the real estate of the husband whereof he died seised," unless the testator, by his will, otherwise declared, did not apply as to such lands, and the widow was not put to her election; that the conveyances to the daughters could not be considered in determining testator's intention, which was to be gathered entirely from the will; that it did not clearly appear therefrom that testator meant to exclude the right of dower, and the widow could recover.

Appeal from circuit court, Saline county; RICHARD FIELD, Judge.

Rich & Rector, for appellant. Samuel Boyd and F. P. Sebree, for respondent.

MACFARLANE, J.

This is a suit brought by plaintiff, who was widow of Charles W. Hall, deceased, for the assignment of dower in a tract of land situate in Saline county, belonging to defendant. Plaintiff and deceased were married in 1840, and lived together until 1884, when he died, leaving her and five daughters of the marriage surviving him. In the year 1874, deceased, being the owner of this land, conveyed it to one of his daughters, Louisa Wise, for the consideration of love and affection and one dollar. Plaintiff did not join in this deed, and never relinquished her dower in the land. At the time of the conveyance of this land to his daughter, he also conveyed to two other daughters tracts of land, for like consideration. These three daughters moved on the respective tracts of land conveyed to them, and resided thereon until their father's death. In 1883, deceased also conveyed to another daughter a tract of land for like consideration. Plaintiff joined her husband in none of these conveyances. Up to his death, plaintiff and deceased resided on the home farm, consisting of 260 acres. To one of his daughters he gave no land. Deceased left a will by which he devised to plaintiff a life-estate in the home farm, $2,000 in money, and other specific bequests. He provided that all his daughters should share equally in his estate, and charged those to whom he had conveyed real estate with the amounts at which it had been valued. The estate was settled, the daughters charged with the advancements, and the widow received her legacies, and continued to reside on the farm in which she was given a life-estate. After the death of her father, Louisa Wise sold the land in controversy to defendant, who had notice that plaintiff claimed dower therein, but no reduction as to the price was made on that account. All these facts were set up by defendant in his answer, and were proved on the trial. The judgment of the circuit court was for plaintiff, and the defendant appealed.

Defendant contends that the provision made for the widow was intended by the testator to be in lieu of dower in the lands previously conveyed to his daughters, as well as that of which he was seised at the time of his death, and, having accepted the provisions of the will, she cannot claim dower in this land. Plaintiff was entitled to dower in all the lands of which her husband was seised during the marriage, to which she had not relinquished the right in the manner prescribed by law. Rev. St. 1879, § 2186. No act, deed, or conveyance of her husband, without her assent, evidenced by her acknowledgment thereof in the manner required by law to pass the estate of married women, could deprive her of that right. Rev. St. 1879, § 2197. Plaintiff, then, was entitled to dower in the land in suit, unless she was barred thereof by some act or omission on her part since the death of her husband. This is conceded by defendant, but he insists that, by...