Jordan v. Rudluff

• Decision Date: 02 March 1915
• Citation: 174 S.W. 806,264 Mo. 129
• Parties: PHILOMENA JORDAN v. JAMES W. RUDLUFF et al., Plaintiffs in Error
• Court: Missouri Supreme Court

174 S.W. 806

264 Mo. 129

PHILOMENA JORDAN v. JAMES W. RUDLUFF et al., Plaintiffs in Error

Supreme Court of Missouri, First Division

March 2, 1915

Error to the Perry Circuit Court. -- Hon. Charles A. Klein, Judge.

Affirmed.

T. B Whitledge for plaintiffs in error.

(1) The dower in this case was merged in the homestead by the action of the commissioners, who found that the homestead value exceeded the dower interest of the widow in all the lands owned by the deceased; hence when homestead was destroyed by her remarriage the dower was also destroyed and lost. Chrisman v. Linderman, 202 Mo. 619; 20 Am. & Eng Ency. Law (2 Ed.), 588. (2) It is not insisted that the Homestead Statute ex vi termini destroys the dower where the homestead exceeds or is greater than one-third of the real estate of which the husband died seized. But where as in this case in an action to assign dower and homestead, the homestead was found to exceed the dower, and by decree of court it was so adjudged, and no dower was or could be assigned, the acceptance of that decree, and voluntarily choosing the larger estate and occupancy of it, until remarriage, did merge the lesser estate -- the dower -- into the homestead and it was lost by remarriage.

John V Noell for defendant in error.

Defendant in error lost her homestead by her remarriage after the death of her first husband, but did not lose her dower. R. S. 1909, sec. 6710; Chrisman v. Linderman, 202 Mo. 605; Gore v. Riley, 161 Mo. 238; Graves v. Cochran, 68 Mo. 74; Bryan v. Rhoades, 96 Mo. 485; Keeney v. McVoy, 206 Mo. 54.

OPINION

BROWN, C. --

This is a suit for the admeasurement and assignment of dower in 150 acres of land in Perry county, of which William Cambron died seized in October, 1901, intestate, leaving the plaintiff, his widow, and certain children and grandchildren, the interests of all of whom are now in the defendants, as his only heirs. The petition states these facts and that afterward on August 14, 1905, plaintiff was married to one Milster, who died in 1907, and that in 1909 she married Jordan, who still lives. It further states that in 1903 some of these heirs brought a suit in partition against her and the other heirs, in the circuit court for Perry county, in which 32.31 acres of the land, comprising the mansion house and messuages, were set off to her as her homestead by the commissioners, who found and reported that her interest in the homestead equaled or exceeded a one-third interest for her life in and to all said lands, and that they did not for that reason assign any dower to her; and divided the remaining lands, after setting out the homestead, to the parties to the suit entitled thereto. The report was approved by the court and judgment entered thereon. It then sets out the interest of these defendants as the sole owners in fee of the homestead tract subject to plaintiff's dower, that her dower has not been assigned in any of said lands, and that on the first day of March, 1909, the defendants wrongfully entered upon the 32.31 acres comprised in the homestead tract, deforcing her of her dower in the entire tract. She lays her damages at $ 200, and the value of her dower at $ 25 a month, and prays for the admeasurement and assignment of dower in the entire tract out of the 32.31 acres. The petition is sufficient if the facts above stated are not inconsistent with her right to recover.

The defendants demurred generally. The demurrer was overruled by the court, and the defendants refusing to plead further, the cause was submitted on the pleadings and evidence taken, and the court found that the plaintiff became, at the death of the said William Cambron, entitled to both homestead and dower in the 150-acre tract; that her dower had not been assigned in the partition suit; ascertained and declared the interests of all the parties subject to her dower; that she was entitled to be endowed of the one-third part in value of all said land for and during the period of her natural life, to be admeasured and set out to her out of the 32.31 acres heretofore mentioned; that no dower had ever been assigned to her out of any of the lands of Cambron, her former husband; and that the defendants on March 1, 1909, wrongfully entered upon all the 32.31-acre homestead tract and have ever since held exclusive and wrongful possession thereof, denying her right to its possession and thereby deforcing her of her dower in the lands of which Cambron died seized. It assessed her damages at $ 163.80, the rental value of her dower estate at $ 100 per annum, and its monthly value at $ 8.33 1-3. It found also that at the time of Cambron's death his mansion house and principal messuage were situated on said 32.31-acre tract. It thereupon adjudged that dower be assigned and admeasured to her out of the 32.31-acre homestead tract equal in value to one-third in value of the 150 acres of which Cambron died seized, excluding valuable improvements made thereon since the setting out of the homestead in the partition case; that she recover said damages and monthly rentals, together with her costs, and appointed three commissioners to assign and admeasure the dower.

The commissioners at the April term, 1911, reported that they had assigned her 30.14 acres, which they fully described, out of the 32.31-acre tract, as her dower. This report was duly approved and confirmed by the court by its final judgment at the same term, and on July 3, 1911, this writ of error was issued and is properly returned here.

The learned counsel for the plaintiffs in error have placed us under obligation by stripping their case to the single naked point which they present for our consideration. They relieve us from going again upon the ground over which we traveled in Chrisman v. Linderman, 202 Mo. 605, 619, 100 S.W. 1090, and Keeney v. McVoy, 206 Mo. 42, 103 S.W. 946, by stating that they do not insist that the Homestead Statute ex vi termini destroys the dower where the widow's homestead interest is greater than one-third in value of the real estate of which the husband died seized; and concede that where dower and homestead have not been assigned by legal proceedings, occupancy and delay do not destroy or in any way affect her right to dower. They do insist, however, that where, as in this case, in an action for the partition of the lands of the deceased husband, the homestead was found to exceed the dower, and the court so adjudged, so that no dower could be assigned in such proceeding, the acceptance of that decree, and voluntarily choosing "the larger estate," and the occupancy of it until remarriage, did merge "the lesser estate," the dower, into the homestead, so that it was lost by such remarriage. This, as we shall see, necessarily involves the question whether under our statute the element of forfeiture by remarriage is to be taken into consideration in fixing the value of her homestead in connection with the assignment of dower. If it is to be considered, so that other dower must be assigned to her in payment for the disability so imposed, it introduces an element into the valuation of homesteads which is impracticable to the point of absurdity. It is true the...