Herndon v. Herndon's Adm'rs

• Decision Date: 31 October 1858
• Citation: Herndon v. Herndon's Adm'rs, 27 Mo. 421 (Mo. 1858)
• Parties: HERNDON et al., Plaintiffs in Error, v. HERNDON'S ADMINISTRATORS, Defendants in Error.
• Court: Missouri Supreme Court

27 Mo. 421

HERNDON et al., Plaintiffs in Error,

v.HERNDON'S ADMINISTRATORS, Defendants in Error.

Supreme Court of Missouri.

October Term, 1858.

1. On the death of a husband without children, the increase of a female slave, that came to the husband in right of the marriage, remaining undisposed of at his death, passed, under the dower act of 1845 (R. C. 1845, p. 430, §3), with the mother to the widow.

Error to Monroe Circuit Court.

The facts sufficiently appear in the opinion of the court.

Dryden and McVagh & Brace, for plaintiffs in error.

I. The language of the dower act does not embrace the increase of a female slave after it comes to the husband. (3 Mo. 98.)

Howell, for respondent.

NAPTON, Judge, delivered the opinion of the court.

The only question in this case is whether, under our dower law (R. C. 1845, 430, §3), on the death of the husband without children, the increase of the slaves that come to the husband by the wife, remaining undisposed of at his death, go with the mother to the widow. This question was determined affirmatively by this court in the case of Cotton v. Cotton's administrator, at the January term, 1851; though, from some cause not now known, no opinion is to be found on file in the case. Our conclusion in the present case is the same. It is conceded that a strict and literal interpretation of this section of our law might exclude the increase; for, as the husband is the absolute owner of the mother, the increase may be said to become his by reason of such ownership, and not by virtue of the marriage. But indirectly they do come to him by virtue of the marriage, and the construction which gives to the widow the increase along with the mother is more...