In re Estate of Connor
| Decision Date | 03 January 1914 |
| Citation | 162 S.W. 252,254 Mo. 65 |
| Parties | In Re Estate of MELISSA CONNOR, An Insane Person, by JOHN B. COLE, Her Next Friend |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. D. E. Blair, Judge.
Reversed and remanded (with directions).
C. B Chapman, Fred L. Williams, P. D. Decker, A. C. Burnett, Fred W. Kelsey and F. M. Cummings for appellant.
(1) When a man dies leaving children his widow is endowed of one-third part of her husband's lands for life (Sec. 345 R. S. 1909) and a share of the personal estate equal to that of a child (Sec. 349). When a man dies leaving a widow and no children his widow is entitled to one-half of his real and personal property absolutely. Sec. 351, R. S. 1909. A person may adopt a child by deed, executed, acknowledged and recorded in the county of his residence, as in case of conveyance of real estate. Sec. 1671, R. S. 1909. A married woman, by joining with her husband, shall, with her husband be capable of adopting a child. Sec. 1672, R. S. 1909. From the time of filing the deed of adoption with the recorder the adopted child shall have the same rights as against the adoptive parents as a natural born child. Sec. 1673, R. S. 1909. The statute providing for the adoption of children is in derogation of the common law and purely statutory, and should be strictly construed. Sarazin v. Railroad, 153 Mo. 479. The deed of adoption not being executed by Melissa Connor was void as to her. Hayworth v. Hayworth, 123 Mo. 303; Sarazin v. Railroad, 153 Mo. 479; Reindeer v. Koppelmann, 68 Mo. 482; Stanley v. Chandler, 53 Vt. 619; Barnes v. Allen 25 Ind. 222; Kieth v. Ault, 144 Ind. 626; Markover v. Krauss, 132 Ind. 294. (2) It being to the interest of Melissa Connor to elect and she being mentally disqualified from acting, and her guardian refusing to act for her, a court of equity had such power. Under the common law a court of chancery had the special care and jurisdiction over lunatics and persons of unsound mind. Burwell on Insanity, secs. 28, 29 and 30; 22 Cyc. 1120; Nelson v. Duncombe, 9 Devon, 278; Frots v. Redford, 54 Mo.App. 346; In re Nesbit, 22 Eng. Ch. Rep. 245; 1 Spencer on Eq. Jurisprudence, p. 618; Nailor v. Nailor, 4 Dana, 340; 2 Story's Eq. Jur., sec. 1363; Pennington v. Thompson, 5 Del. Ch. 328; Corries Case, 2 Bland, 488; Penhallow v. Kimball, 61 N.Y. 598; McCord v. Ogletree, 8 Blatch. 15. Under the laws of Missouri a court of chancery has the same jurisdiction that it did at common law. State ex rel. v. Withrow, 133 Mo. 500; Sec. 4151, R. S. 1899; Art. 6, sec. 34, Constitution; Cabiness v. Lisa, 1 Mo. 682; Clark v. Henry, 9 Mo. 333; State ex rel. v. Dearing, 180 Mo. 53; Janny v. Spedden, 38 Mo. 395; Biddle v. Ramsey, 52 Mo. 153; Meyer v. Field, 37 Mo. 434; McGuire v. Tyler, 47 Mo. 115; Church v. Robertson, 71 Mo. 326. (3) A statutory jurisdiction, such as creating an inferior court, does not extinguish an ancient jurisdiction when there is nothing in the statute to indicate such a legislative purpose. State v. St. Louis Co., 38 Mo. 403; Tackett v. Volzer, 85 Mo. 480; Brandon v. Carter, 119 Mo. 572; Lackland v. Walker, 151 Mo. 262. (4) The Constitution and the statute of Missouri vested in the circuit and Supreme Court of the State the ultimate consideration of the care, oversight, superintending control and safeguarding of the insane (such as Melissa Connor had been adjudged to be). Constitution, art. 6, sec. 23; R. S. 1909, secs. 3956 (4th subdiv.), 3900, 2083. (5) The circuit court erred in not responding to the appeal to it, when informed, as it was informed, as to the common effort of the probate court, Thomas Connor's executors and Melissa Connor's guardians to deprive her of her marital interests in her husband's estate, that is, by not declaring as requested what her interest, if any, was and is. (6) The court committed error in overlooking the right of renunciation and as well the right of election of Melissa Connor, when made by a court of equity for her, in the absence of any act in good faith by any one of her "legal" representatives to represent her for her best interests and benefit as provided by law. (7) The court committed error by overlooking the fact that the right of renouncing the provisions of a husband's will has been upheld by the Supreme Court, uniformly, whenever the question has been presented, whether any right of election under any particular statute existed or not. Egger v. Egger, 225 Mo. 126; Spratt v. Lawson, 176 Mo. 175.
W. H. Phelps and Howard Gray for respondents.
(1) In determining what shall be done with this case, it is important to keep in mind that the suit was not instituted in the usual or ordinary manner; that a petition was filed during the term of the court, on the theory that an extraordinary and grave condition existed, and unless the court then and there proceeded to do the things requested in the petition, the plaintiff would suffer great injury. It was then and there claimed that Thomas Connor died without issue and that Mrs. Connor had the right to elect to take one-half of his estate, provided she filed her election to do so within twelve months, and that time would expire immediately and this right lost unless a court of equity proceeded to act without notice to the parties in interest. If no such a condition existed, and no election was necessary, then the circuit court was justified in dismissing this extraordinary proceeding and directing the parties to proceed in the usual and ordinary manner. Secs. 345, 349, R. S. 1909. To take under these sections no election is necessary. Hayden v. Hayden, 23 Mo. 398; Lich v. Lich, 138 S.W. 558; Egger v. Egger, 225 Mo. 148. The appellant maintains that Mrs. Connor had the right to elect under the provisions of section 351 to take one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, but in order to get such an interest she was required to file her election within twelve months. We deny that Mrs. Connor was entitled to the provisions of section 351 because her husband did not die without "leaving a child or other descendant in being capable of inheriting." The record shows that Thomas Connor several years prior to his death, adopted, by deed, executed, acknowledged and recorded, as required by section 1671, Agnes Connor, and that such child survived him, and by section 1673 this child by such deed of adoption became the lawful child of Thomas Connor and an heir to his property. Moran v. Stewart, 122 Mo. 295, 173 Mo. 207; Westerman v. Schmidt, 80 Mo.App. 344; Hockaday v. Lynn, 200 Mo. 456; Keeney v. McVoy, 206 Mo. 42. Agnes Connor was a child in being, capable of inheriting, as that term is used in section 351. Moran v. Stewart, 122 Mo. 295. Counsel for the appellants say that the rule in the Moran case does not apply here because the deed of adoption in that case was entered into previous to the marriage, while Mr. Connor did not adopt Agnes until after he had married Mrs. Connor, and even then she did not join in the deed of adoption. A complete answer is found in Green v. Green, 126 Mo. 17. (2) Not only has the court held that children of a subsequent marriage prevent the first wife from electing, but they have gone much further, and hold that where a husband has by gift or other means disposed of his property, without the wife joining, or without her consent, upon his death she cannot elect under the provisions of section 351. Hornsey v. Casey, 21 Mo. 545; Coberly v. Coberly, 189 Mo. 1; Newton v. Newton, 162 Mo. 173; Dickerson's Appeal, 115 Pa. St. 198, 2 Am. St. 547. There are only two other sections of our statute which deal with the question of election or renunciation. Section 360 provides if any testator shall by will pass any real estate to his wife, such device shall be in lieu of dower unless the testator by will otherwise declares. Section 361 provides that in such cases the wife shall not be endowed in any of the real estate of the husband unless she shall by writing executed, acknowledged, and recorded as in case of deeds for land, announce that she will not accept the provisions of her husband's will. These sections do not apply to this case because Mr. Connor's will does not purport to give the widow any interest in lands. Hamilton v. O'Neill, 9 Mo. 11; Sparks v. Dorrell, 151 Mo.App. 173; Martien v. Norris, 91 Mo. 465. (3) Counsel for appellant cite a long list of cases, holding that the deed of adoption was void as to Mrs. Connor because she did not join in its execution, but they entirely overlook the fact that in all such cases from this State the court was dealing with the rights of the adopted child acquired from the parents not joining in the deed of adoption. Sarazin v. Railroad, 153 Mo. 479; Hayworth v. Hayworth, 123 Mo.App. 303. (4) The court was not authorized to appoint Gov. Claycomb to make the election under section 351. While the authorities are in conflict regarding the right of a court to make an election or to appoint a guardian to make one where the widow is insane, yet no authority can be found authorizing the court to appoint a commissioner or guardian to make an election under statutes where the Legislature has provided for a guardian to make the election under such statutes. While the courts hold that under certain circumstances and conditions a court of equity may make an election for an insane widow, they limit this right to cases wherein no provision is made by statute for any other person to make such election. In our State the Legislature has provided that the guardian of an insane widow may make an election under sections 351, 352, and 353, and therefore, the court was not authorized to appoint Gov. Claycomb for that purpose. Welch v. Anderson, 28 Mo. 293; Wash v. Wash, 189 Mo. 352; ...
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