King v. King

• Decision Date: 05 March 1900
• Citation: 56 S.W. 534,155 Mo. 406
• Court: Missouri Supreme Court
• Parties: KING v. KING.

56 S.W. 534

155 Mo. 406

KING v. KING.

Supreme Court of Missouri.

March 5, 1900.

EXECUTORS AND ADMINISTRATORS — WIDOW'S QUARANTINE — EVIDENCE — INSTRUCTIONS — VERDICT — REVIEW.

1. Under Rev. St. 1889, § 4533, providing that a widow may remain in and enjoy the mansion house of her husband till dower be assigned, without paying rent, the widow is entitled to quarantine, whether she reside in the mansion house or elsewhere at the time of her husband's death.

2. Where a wife claimed quarantine in her deceased husband's mansion house, evidence that she had abandoned the same was not competent to show an abandonment by the husband, and thereby defeat her claim.

3. Where an instruction fully submitted a question to the jury, error in another instruction on the same point was cured.

4. When no evidence of a fact appeared in the record, an instruction to that effect did not invade the province of the jury, and was not misleading.

5. Under Rev. St. 1889, § 2303, providing that a judgment shall not be reversed unless error was committed against the appellant, materially affecting the merits of an action, where erroneous instructions were given, but the jury could not have found any other verdict consistent with the evidence, the judgment thereon will not be reversed.

Valliant, J., dissenting.

In banc. Appeal from circuit court, Saline county; Richard Field, Judge.

Action by Mary E. King against Junior K. King. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

D. D. Duggins and Leslie Orear, for appellant. McDougal & Sebree and W. M. Williams, for respondent.

BURGESS, J.

This is an action of ejectment by plaintiff, who is the widow of Will R. King, deceased, against Junior K. King, his son, to recover the possession of a large tract of land in Saline county. Plaintiff claims possession of the land upon the ground that the mansion house of her husband, at the time of his death, was situated thereon, and that the land in question belonged thereto. Section 4533, Rev. St. 1889. On March 8, 1894, Will R. King died, leaving surviving him the plaintiff, his widow, and several children, two of whom, including the defendant, were the fruit of a former marriage. At that time he was the owner of a large body of land, of which that involved in this litigation is a part, and upon which is claimed by plaintiff to have been situated his mansion house. Will R. King had owned this land for many years, and had built upon it an elegant residence, with modern improvements, and moved into it with his family, where they continued to live for many years thereafter, and until the fall of 1889, when, because of some disagreement between him and his wife, the plaintiff, she left him and the place, taking with her several of the younger children, going first to Marshall, and finally to Montana. They never lived together afterwards. King named the place "Peabody." At the time of the separation, William King, the brother of defendant and son of Will R. King by his first marriage, was living at Lees Summit, and June, the defendant, was residing in one of the houses on his father's plantation. The father immediately had William move back home. June moved in the mansion house, and William moved into the house which June had vacated. In January, 1890, King made a written lease to each of his sons, for four years, beginning March 1, 1890, — to William a tract of land on the plantation, but not here in controversy; and to June several hundred acres of the land in controversy, including the mansion house and barns. In the same year these leases were made King took back all the land he had leased to William, except 106 acres, and all he had leased to June, except the 240 acres upon which was located the mansion house and barns. In the lease to William there was a small rental reserved, but in the lease to June there was no rent at all, except an agreement to keep up the ponds and tanks and repairs on fences, and pay the taxes; the last of which the defendant did not do, but his father always paid them. There were a number of other circumstances shown in evidence by plaintiff which tended to show that her husband had never abandoned the "Peabody" place as his homestead, such as keeping a room, desk, and books there, and returning thereto; the continued management of the farm; clearing up of the timbered land; repairing the mansion house; and, while the latter was being done, in speaking to a friend about his wife, he remarked that "the home was always ready for her when she wanted to return." It was also shown that in the summer of 1893 he made his assessment list to the assessor of Saline county of his personal and real property for taxation, in which he described himself as of that county; that he made similar assessments in 1888, 1889, and 1891, and kept his bank account at Marshall, in that county. Upon the part of the defendant there was evidence tending to show that Will R. King had abandoned the Peabody place as his homestead after his wife left him; that thereafter he sold his household goods and furniture, divided his farming utensils and live stock between his two sons by his first marriage, did not engage in farming any more, left the place for a time, and stated to one of his friends, Mr. Cirdell, that he had made up his mind to leave Peabody, and never expected to live there again; that he leased the land in controversy to the defendant for a term of four years, who occupied under the lease for that time; that he then went to Mings Hotel, in Marshall, then to Excelsior Springs, and thereafter, in the spring of 1893, to Fresno, Cal., as he frequently stated, for the purpose of making that state his home, and frequently wrote and spoke of it as such; that upon his arrival there he took a room at a hotel, where he remained some days, and then went to the residence of a friend, where he remained some weeks, then returned to this state, and, being in bad health, on the advice of a physician stopped at Excelsior Springs for a few days, and returned to Peabody in July or August of the same year. He then remained at Peabody until the latter part of October of the same year, and then went to St. Louis for medical treatment, and remained there until his death. Over the objection and exception of defendant, the court, at the instance of plaintiff, instructed the jury as follows:

"(1) The jury are instructed that the widow of a deceased person is entitled to the possession of the mansion house, and plantation used in connection therewith, of her deceased husband, from the time of his death until her dower shall be assigned her, and the fact that said widow may have lived separate and apart from her said husband before and at the time of his death cannot defeat her of her rights to the possession of the said premises. And the jury are further instructed that the mansion house of a person is his chief place of residence, and the residence of a person, when once established, remains until it is abandoned, and, in order to constitute abandonment, it is not enough that he should at times absent himself from it, or lease it out, if he intends at the time he so absents himself or makes such lease to return to such homestead and make it his home, and that this absence shall be temporary. And if the jury shall believe from the evidence that in the fall of 1889 the deceased, Will R. King, lived upon the place known as `Peabody' with his family, and that said place was his home, then the chief house on said premises was the mansion house of said Will R. King. And even though you should believe from the evidence that there was a separation of said King and his wife, and that his wife and younger children did not remain at `Peabody,' and that said King leased said house and some of the land on said place to his son Junior K. King for the period of four years, and that said King was at times absent from said place, yet if you shall further believe from the evidence that said King at the time he made said lease and at the time he left said premises intended to return to the same as his home, and that he had not in his own mind left said place with the intention of remaining away from the same permanently, then said place continued as his homestead, and you will find a verdict for the plaintiff.

"(2) Although the jury may believe from the evidence that said Will R. King made a lease of the Peabody house and a part of the lands adjacent to the same to his son Junior K. King, for the term of four years, and that he went to Excelsior Springs, Chicago, California, and St. Louis for his health, recreation, or business, but that said King intended at the times of leaving said premises, and when he made said lease intended, to be absent from said premises only temporarily, and to return to the same as his home, then said King had not abandoned said homestead, and your verdict must be for the plaintiff.

"(3) The court instructs the jury that the lease to the defendant, Junior K. King, of the lands in said lease described having expired on the 1st day of March, 1894, and before the death of Will R. King, said Will R. King was, from that time up to the time of his death, entitled to the possession of said lands.

"(4) Although the jury may believe from the evidence that Will R. King went to the state of California for the purpose of establishing a domicile there for the purpose of instituting a suit for divorce against his wife, but that it was the intention of said Will R. King at the time he left Peabody, and all the time, to finally return to Peabody farm to live upon the same as his home, then the said King had not abandoned said Peabody as a homestead, and your finding must be for the plaintiff.

"(5) If the jury find for the plaintiff, they will find that she is entitled to the possession of all the lands that were a part of the home farm of said Will R. King, and by him managed and operated as one farm or plantation; and also assess her...