Hasenritter v. Hasenritter

• Decision Date: 31 October 1882
• Citation: 77 Mo. 162
• Parties: HASENRITTER v. HASENRITTER, Executor, Appellant.
• Court: Missouri Supreme Court

77 Mo. 162

HASENRITTER

v.HASENRITTER, Executor, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Gasconade Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

This is a proceeding instituted in the probate court of Gasconade county by Fredericka Hasenritter, widow of Chas. W. Hasenritter, by motion, against R. H. Hasenritter, executor of the last will of Chas. W., to require him to pay her the sum of $400 in lieu of her dower in his personal estate, and a compensation in lieu of one year's provisions. The executor defended on the ground that the deceased had in his last will made other provision for her, and she had accepted the provision so made. At the trial it appeared that in 1871 deceased insured his life for $1,000 in the Odd Fellows' Insurance Association for the benefit of his wife; that his wife then living was Bertha A. Hasenritter; that said Bertha subsequently died, and deceased then married the said Fredericka; that deceased had children of the first marriage, but none of the second. It also appeared that deceased left a will, the provisions of which were as follows: 1. A direction for the payment of his debts. 2. “The insurance on my life in the Odd Fellows' Insurance Association, payable to my wife, Fredericka, I will and bequeath to her, free from all debts, and my said wife is to have her dower in all real property according to law.” 3. “The balance of my estate, of whatever kind, real or personal,” the testator directed to be divided among his children. It also appeared that the widow had received the $1,000 from the insurance association. The probate court ordered the executor to pay the widow the sums found to be due her, and the circuit court affirmed the judgment.Smith & Krauthoff and L. Hoffman for appellant.

That the testator designed the $1,000 to be all of his widow's interest in his estate, is made clear by the language immediately following the bequest; “The balance of my estate, of whatever kind, real or personal, I wish to have divided,” etc., among his children. It is clear that he intended to give all the balance of his estate, of whatever kind, to his children. This balance included the widow's dower interest in his personalty. Having already given her a large portion of his personal estate, it cannot, consistently with the terms of the will, be held that he had any idea of giving her any further interest in or portion of it. If possible, this intention is still more apparent from the fact that he expressly devises to his widow her dower in his real estate. The rule of construction in such cases is, that where there are more than one thing belonging to the same class, the expression of one or more of them is the exclusion of all not expressed. 2 Pars. Cont., 515. Hence, the positive devise of her dower interest in his real estate must be construed as a negativing of a similar interest in his personalty.

Rudolph Hirzel for respondent.

SHERWOOD, J.

In Hastings v. Myers, 21 Mo. 519, it was held that the right of a widow to $200 worth of personal property was...