Hornsey v. Casey

• Decision Date: 31 October 1855
• Citation: 21 Mo. 545
• Court: Missouri Supreme Court
• Parties: HORNSEY & WIFE, Respondents, v. CASEY, Appellant.

21 Mo. 545

HORNSEY & WIFE, Respondents,

v.CASEY, Appellant.

Supreme Court of Missouri.

October Term, 1855.

1. Under an election made by a widow, under the 3d and 6th sections of the dower act (R. C. 1845, p. 430) to take “one half of the real and personal estate belonging to the (her) husband at the time of his death, absolutely,” held that she can take no interest in any property conveyed away by the husband in his lifetime. If she have not relinquished her dower in real estate conveyed away by her husband during his lifetime, she must claim her dower under the 1st section of the dower act.

2. Quere, whether an election made by a widow to take under the 3d section of the dower act, will operate as a bar to dower under the 1st section of the same act.

Appeal from Washington Circuit Court.

This case was decided on a demurrer to the petition. The petition set forth that the plaintiff, Clarissa Hornsey, now wife of R. Hornsey, was formerly the wife of one G. Nuckolls, since deceased; that she had been divorced from the said Nuckolls, she being declared by the court to be the innocent and injured party, and the said Nuckolls the guilty party; that the said Nuckolls died July, 1854, without any child or other descendant in being capable of inheriting, leaving the plaintiff, now Clarissa Hornsey, him surviving; that on the 6th of November, 1854, the said Clarissa and her husband, Robert Hornsey, also plaintiff in this suit, made their certain deed of election, &c., &c., by which she elected to take dower under the provisions of the 3d section of the act concerning dower, approved March 24, 1845; that “for several years before the death of the said G. Nuckolls, he became very intemperate, used ardent spirits to great excess, so that he became weak and imbecile, and while in this condition he conveyed to John H. Casey, the defendant, for the consideration of $900,” a certain tract of land, which tract of land was worth at the time of the said conveyance, $2,000; that “said deed was made to defeat the full dower rights of the said Clarissa -- it was executed a few months before his (Nuckolls') death, and was, in fact, a will in disguise, and an attempt to commit a fraud upon the rights of said Clarissa;” that the plaintiffs had made a demand in writing of said defendant, John H. Casey, to assign dower in the aforesaid tract, conveyed to the said Casey by the said Nuckolls, to the amount of one half thereof in fee simple, which was refused by the said Casey. The plaintiffs prayed the court “to declare the rights of the said Clarissa in the premises, that she be seized of her dower accordingly, with a recovery of such damages,” &c.

To this petition the defendant demurred. The demurrer was overruled, judgment given for the plaintiffs; defendant appealed.

Noell and Frissell, for appellant.

1. Dower is claimed in lands which did not belong to the husband at the time of his death. The widow claims under the 3d section of the dower law, which gives her dower only in lands belonging to the husband at the time of his death. 2. Although courts will not recognize the validity of a deed or conveyance made with a design to operate as a will defeating dower, yet, where the effect of such a deed is not to defeat, but to change the character of dower, the rule does not hold good. The plaintiff has voluntarily renounced her claim to dower under the first section of the dower act, and must now abide by that renunciation, and take dower under the 3d section. The effect of this is to give her the money, which arose from the sale of the land, in the place of the land. The change in character of the property did not alter the extent of her rights. She still gets half of the proceeds of the land; but for her own voluntary act, she would have taken a third of the land...