Keeney v. McVoy

• Decision Date: 02 July 1907
• Parties: KEENEY et al. v. McVOY.
• Court: Missouri Supreme Court

103 S.W. 946

206 Mo. 42

KEENEY et al. v. McVOY.

Supreme Court of Missouri.

July 2, 1907.

1. DESCENT AND DISTRIBUTION — SURVIVING WIFE—RIGHTS—ELECTION.

Under Rev. St. 1899, § 251 [Ann. St. 1906, p. 426], providing that, until the widow's dower be assigned, the court shall order such sum to be paid to her as shall be in proportion to her interest, and section 2954 [Ann. St. 1906, p. 1702], providing that until dower be assigned the widow may enjoy the mansion house of her husband and the plantation thereto belonging without being liable to pay rent, the passive enjoyment by a widow of her quarantine right by living in her husband's mansion and partaking of the fruits of his plantation does not defeat her right to elect to take a child's share of the real estate.

2. SAME.

An heir cannot by filing a suit to assign dower and for partition cut off the statutory right of the widow to elect to take a child's share.

3. SAME—COMMON-LAW DOWER—ELECTION.

A widow has the right to take common-law dower without electing so to do.

4. SAME—ESTOPPEL.

An owner died seised of land, and left a widow and his granddaughter as his sole heir. The widow and granddaughter lived in the mansion house and partook of the fruits of the plantation for many years. Thereafter the granddaughter married. There was nothing to show that the granddaughter and her husband changed their situation in reliance of the fact that the widow was bound to take only common-law dower. Held, that the widow was not estopped from electing to take a child's share.

5. SAME—WAIVER—PLEADING—NECESSITY.

The waiver of the right of a widow to elect to take a child's share in the real estate of her deceased husband cannot be invoked unless the same is pleaded.

6. ESTOPPEL—PLEADING—NECESSITY.

A party cannot defeat a widow's right to elect to take a child's share of the real estate of her deceased husband by proving that she is estopped, unless the same is pleaded.

7. DESCENT AND DISTRIBUTION — RIGHTS OF WIDOW — ELECTION — LAPSE OF TIME—EFFECT.

Rev. St. 1899, §§ 2943, 2945 [Ann. St. 1906, pp. 1696, 1698], authorize a widow to elect to take dower, etc., by filing an election within 12 months after the granting of letters of administration, and prescribes the manner of making such election, etc. An owner died seised of land leaving a widow and an infant granddaughter his sole heir. The widow and granddaughter occupied the mansion house and enjoyed the fruits of the plantation for over 20 years without applying for the administration of his estate. The widow, within a year after the issuance of letters of administration, elected to take a child's share in the real estate of the decedent. Held, that the right of the widow to elect to take a child's share was not barred by laches in view of sections 2967, 3480, 3485-3487 [Ann. St. 1906, pp. 1707, 1991, 1993], relating to the appointment of a guardian and authorizing a suit by an infant, etc., by virtue of which the infant could have instituted proceedings for administration.

8. SAME—STATUTES—CONSTRUCTION.

The word "children," in Rev. St. 1899, § 2944 [Ann. St. 1906, p. 1697], providing that, where a husband shall die leaving a "child or children" or other descendants, the widow, if she has a "child or children," by such husband living, may elect to take a child's share in the real estate of the husband, when considered in connection with section 4160 [Ann. St. 1906, p. 2252], requiring words of statutes to be taken in their ordinary sense, etc., and sections 2933, 2946, 2939-2941, and 2944 [Ann. St. 1906, pp. 1690, 1698, 1694, 1695, 1697], relating to dower, includes grandchildren and the widow of one dying seised of land leaving a child of a deceased child of the widow and decedent is entitled to take a child's share.

Valliant J., dissenting, and Graves, J., dissenting in part.

In Banc. Appeal from Circuit Court, Pettis County; George F. Longan, Judge.

Action by Ada A. Keeney and another against Louisa T. McVoy. From a judgment for defendant, plaintiffs appeal. Affirmed.

Barnett & Barnett, for appellants. W. D. Steele and Sangree & Bohling, for respondent.

LAMM, J.

From a judgment in partition, adjudging to defendant an undivided half interest in a certain 200 acres of land in Pettis county, and confirming her right (which she had exercised), as widow of one Brice McVoy, to elect to take said one-half interest absolutely as a child's part in lieu of dower in the whole tract, plaintiffs appeal. Plaintiffs, husband and wife, on April 16, 1901, sue for partition in the right of the wife, Ada A., alleging she was born Hoss, the sole child of Sallie A. Hoss, deceased; that Sallie A. was born McVoy, the daughter of one Brice McVoy; that he was the husband of defendant, Louisa T., and died intestate, seised of said real estate, in January, 1879, leaving defendant as his widow and the plaintiff Ada A. as his granddaughter and sole heir; that his estate had been fully administered, and there are no debts against it; and that Ada A. owns said real estate in fee simple, subject to defendant's dower. Wherefore partition was asked admeasuring defendant's dower, to have and enjoy during her life; and to that end the appointment of commissioners was prayed, etc. The answer, summarized, is as follows: It admits that Brice McVoy died intestate, seised of the described land as alleged; admits he left defendant as his widow, and plaintiff Ada A. as his granddaughter and sole heir; avers that said mother of Ada A. was also the daughter of defendant and is dead, and that Ada A. is a descendant of Brice McVoy and defendant; denies his estate had been administered; admits there are no debts against it, except the expenses of an administration now pending in the probate court of Pettis county; avers letters of administration were taken out on his estate in August, 1901, and that thereafter the defendant, in lieu of dower of one-third part of said land to hold and enjoy during her natural life, in due time elected to be endowed absolutely in a share of the land equal to that of Ada A. as the descendant of Brice McVoy; that said election was made in writing, duly acknowledged, and filed, etc., and that by said election she became the absolute owner of a one-half interest in the land. The answer pleads other affirmative matter, to wit: That the land was the homestead of Brice McVoy and defendant; that they occupied it and the mansion house, etc., thereto belonging; that after the death of Brice McVoy defendant continued to occupy the mansion house and plantation; that her dower had never been admeasured; that on the death of her husband she was entitled to her quarantine rights, i. e., entitled to remain in and enjoy the mansion-house plantation and messuages and the issues and profits thereof without the payment of rents, taxes, insurance, or improvements; that to preserve said estate for herself and Ada A. she had paid certain taxes, expended certain amounts in keeping up fences and buildings, had put betterments of a given value on the land by clearing off 40 acres, had expended certain sums in insuring the buildings, and had rendered services of a certain value in looking after, caring for, and preserving the premises; that Ada A. was of tender years on the death of Brice McVoy, to wit, of the age of one year; and that defendant cared for, clothed and educated her at great expense, naming it. Wherefore she prayed, not only that she be adjudged to have the right to elect and by her election had become the owner of one-half of the land, but that she be allowed all said outlays and expenses in the preservation and betterment of the estate, etc., aggregating $6,225, and that the same be declared a lien, etc. The reply was a denial of every allegation of new matter in the answer and a renewal prayer for judgment.

At the trial, under the admissions in the pleadings, defendant took the laboring oar. She put in evidence the written application of one Quisenberry to become administrator of Brice McVoy's estate, filed in the probate court of Pettis county on the 7th day of August, 1901; the letters of administration granted him on that day; his bond as such administrator, together with the probate order approving it; the inventory filed, showing no personal estate, but showing the real estate described in the petition—all in due form and properly verified and witnessed— the written application of defendant filed in said court and in the office of the recorder of deeds, electing to take a child's part in the described land, in lieu of dower of one-third, etc., during her natural life, said application being filed in the probate court and also recorded on August 7th and October 2, 1901, respectively. Defendant next put in evidence an annual and a final settlement, showing that the administrator collected enough rent from the real estate to pay the expenses of administration, that no claims were allowed, that he had made his proper publication of notices of appointment and final settlement, and had been discharged. All this evidence was put in over the objections of plaintiffs, which objections were overruled and exceptions saved. By these objections, plaintiffs challenged the sufficiency of said proofs to entitle defendant to elect; and as the same questions go to the validity of the judgment rendered, and constitute plaintiffs' assignment of error, they will be developed later. Defendant supplemented her record evidence by taking the stand, and testifying that she was 79 years old on October 13, 1903; (the trial occurred October 28 and 29, 1903); that she bore five children to her husband; that they all died before her husband; that he died on January 26, 1879; that the mother of the plaintiff Ada A., to wit, Sallie A. Hoss, was the last one to die; that none of defendant's children except Sallie A. left any children, and none of them were ever married except her; that Sallie A. married Albert Hoss and died on the 29th day of May,...