Henderson v. Calhoun

• Decision Date: 29 February 1916
• Docket Number: No. 17604.,No. 17606.,17604.,17606.
• Citation: 183 S.W. 584
• Parties: HENDERSON v. CALHOUN et al.
• Court: Missouri Supreme Court

183 S.W. 584

HENDERSON v. CALHOUN et al.

No. 17604.

No. 17606.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Partition by James S. Henderson against Sallie P. Calhoun and others. Plaintiff having died pendente lite, and his death having been suggested, the cause was revived in the name of T. C. Henderson, individually and as administrator of James S. Henderson. From a judgment for plaintiff, defendants appeal. Affirmed.

On May 2, 1912, James S. Henderson filed in the circuit court of Audrain county, Mo., his petition for the partition of part of lot 12 of city survey numbered 39 of the city of Mexico, county and state aforesaid. The defendants in said action are Sallie P. Calhoun et al., heirs at law and legatees in the will of M. A. C. Henderson, deceased, and Wallace Dearing, executor of her estate. Since the commencement of this action said James S. Henderson died intestate. His death was suggested in this court, and by stipulation the cause was revived in the name of T. C. Henderson, as sole heir at law and administrator of the estate of said James S. Henderson.

It is undisputed that M. A. C. Henderson and said James S. Henderson were married December 13, 1888, and lived together as husband and wife until eight or ten years before Mrs. Henderson's death. The wife died in February 1912, testate, and defendant Wallace Dearing was named as executor of her estate. Her will was duly probated in said county, and she left her said husband out of her estate the sum of $1, and no more. Mr. Henderson in due form executed and filed in the recorder's office of said county and in the probate office of same his written renunciation of the provisions of said will in his behalf, and elected to take one-half of all the property left by his wife, under the provisions of section 350, R. S. 1909, subject to the payment of his wife's debts.

It is conceded that Mrs. Henderson died without any child or children, and that she and her said husband never had any issue born alive as the result of their marriage. It is undisputed that only about $100 had been allowed against. Mrs. Henderson's estate; that she owned the real estate in controversy and about $12,710.48 of personal property at the time of her death, as shown by the inventory of her estate. It was alleged in petition that, owing to the large number of interests involved, said real estate could not be partitioned in kind, and hence the court was asked to order a sale of same, and to distribute the proceeds of such sale between the parties as their interests might appear, after the expenses of said sale had been deducted therefrom.

It appears from the record, that William Calhoun, of Johnson county, Mo., an uncle of said M. A. C. Henderson, died testate in 1882, and paragraph 8 of his will reads as follows:

"8th. After all expenses are paid the balance of my estate I bequeath to Margaret A. Calhoun, Sarah Jane Boyd, Robert A. Calhoun, and William Calhoun and their heirs to be equally divided among the same, and if any of them die without issue their portion to revert to their brothers and sisters and to share and share alike."

It is conceded that Margaret A. Calhoun, named in said will, was Mrs. Henderson. The other three persons named in said paragraph are nephews and niece of said William Calhoun, and they are brothers and sister of Mrs. Henderson. The evidence tends to show that all four of the parties named in paragraph 8 of above will were living when William Calhoun, the testator aforesaid, died in 1882.

The evidence tends to show that all the property owned by Mrs. Henderson at the time of her death came to her from her uncle William Calhoun's estate, and under section 8 of his will aforesaid; that all the money received from her said uncle's estate, was paid to her prior to her marriage with James S. Henderson, except about $500; that no part of her estate left at her death had come to her through her said husband; that the latter never helped make, nor did he furnish, any of the money or property owned by her at the time of her death; that she received said money and property from her uncle's estate between the years 1882 and 1888, except said $500, paid to her after her marriage with Mr. Henderson, but before the year 1890.

Defendants in their answer assail the constitutionality of section 350, supra; insist that the property left by Mrs. Henderson was her separate estate, and that the act of 1895 should not be given a retrospective operation so as to enable the heirs of Mr. Henderson to claim under said section 350 one-half of Mrs. Henderson's property, subject to the payment of her debts.

It was stipulated between the parties to the record that said James S. Henderson had borrowed from his wife $1,600; that, if Mr. Henderson was successful in obtaining one-half of his wife's property, he should credit the above sum coming to him, with said $1,600, as an advancement; that, if he should only recover what the will gave him, then said $1,600 demand was to be canceled, and no further claim made against him, in behalf of said defendants.

The court found the issues for Mr. Henderson, ordered a sale of said real estate, and after the sale, the net sum of $1,157.47 was ordered to be paid to him, after deducting the expenses. Defendants in due time filed motions for new trial and in arrest of judgment. Both said motions were overruled, and the cause duly brought to this court by appeal.

Fry & Rodgers, of Mexico, Mo., for appellants. J. R. Baker, of Fulton, for respondent.

RAILEY, C. (after stating the facts as above).

I. Appellants assail the validity of section 350, R. S. 1909, on the ground that said section is void, for the alleged reason that, when enacted (Session Acts 1895, p. 169), the title did not declare the subject of the act, as required by section 28 of article 4 of the Constitution 1875 of Missouri. The above act provides that the widower, where his wife dies without child or children, shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, subject to the payment of the wife's debts. We are relieved of the necessity of considering this question by reason of the clear and explicit rulings of this court, not only in regard to foregoing act, but in respect to the matter under consideration in general, as follows: State ex rel. v. Ranson, 73 Mo. loc. cit. 86; State ex rel. v. County Court, 128 Mo. loc. cit. 427, 30 S. W. 103, 31 S. W. 23; O'Brien v. Ash, 169 Mo. loc. cit. 299, 69 S. W. 8; State v. Doerring, 194 Mo. 398, 92 S. W. 489; Ferguson v. Gentry, 206 Mo. 189, 104 S. W. 104; Gilroy v. Brady, 195 Mo. 209, 93 S. W. 279; Burge v. Railroad, 244 Mo. loc. cit. 90, 91, 148 S. W. 925; State ex rel. v. Gordon, 245 Mo. loc. cit. 34, 149 S. W. 638; State v. Maurer, Surkamp & Shortell, 255 Mo. loc. cit. 160, 164 S. W. 551.

In view of the above authorities, appellants' contention in respect to foregoing matter is overruled, and the title to the act aforesaid sustained.

II. Section 350, R. S. 1909 (Acts 1895, p. 169), as applied to the case at bar, and construed by the trial court, is assailed as being unconstitutional, because it is alleged to be retrospective in its operation, and gave to the husband who married his wife in 1888, one-half interest in her real and personal property, subject to her debts at her death, when said property was so held by her as her separate estate at the time of said marriage, as well as thereafter.

Paragraph 8 of William Calhoun's will, executed in 1882, reads as follows:

"8th. After all expenses are paid the balance of my estate I bequeath to Margaret A. Calhoun [M. A. C. Henderson]. Sarah Jane Boyd, Robert A. Calhoun and William Calhoun and their heirs to be equally divided among the same, and if any of them die without issue their portion to revert to their brothers and sisters and to share and share alike."

The four children above named in paragraph 8, supra, were brothers and sisters. William Calhoun, author of said will, was the uncle of said children. There is nothing in his will, and especially section 8, supra, which stamps the property conveyed therein to Mrs. Henderson as her separate estate. It only became her separate estate by virtue of the statute then in force.

There was clearly no intention upon the part of the lawmaking power of this state, as the law stood in 1888, when Henderson and wife were married, to place the wife's statutory separate estate beyond the control of the law, so as to deprive the husband of his statutory right under section 350, supra, to hold one-half the real and personal property left by his wife, under the circumstances of this case. See authorities at the conclusion of this proposition. The constitutionality of section 350, supra, has been so ably and satisfactorily sustained by...