Klocke v. Klocke
| Decision Date | 25 January 1919 |
| Citation | 208 S.W. 825,276 Mo. 572 |
| Parties | CARRIE KLOCKE, Appellant, v. LOUISE KLOCKE et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court. -- Hon. John W. McElhinney Judge.
Reversed and remanded.
Wm. L Bohnenkamp for appellant.
(1) The plaintiff in this case as the widow of Henry Klocke deceased, who died without any child or children or other descendants in being capable of inheriting, takes an undivided one-half of the property "belonging to her husband at the time of his death, absolutely," being the property described in the petition. R. S. Mo. 1909, sec. 351; Ferguson v. Gentry, 206 Mo. 190; In re Ferguson's Estate, 206 Mo. 203; Spurlock v. Bennett, 183 Mo. 531; Waters v. Herboth, 178 Mo. 166; Perry v. Strawbridge, 209 Mo. 621. (2) The opinions in the Von Arb case and of No. 2 in the case at bar carries with it its own refutation. They will not stand the light of analysis. See Von Arb v. Thomas, 163 Mo. 33, and Klocke v. Klocke, 273 Mo. 150. (3) The opinion of the court in the Von Arb case and again the opinion rendered in the case at bar by Division Two put a construction on Section 353 that renders it unconstitutional in that in the light of such construction it becomes class legislation. State v. Kimmel, 256 Mo. 369; State v. Baskowitz, 250 Mo. 107; White v. Railroad, 250 Mo. 577; State v. Miksicek, 225 Mo. 577; Kansas City v. Grush, 151 Mo. 135; State v. Walsh, 136 Mo. 107; State v. Julow, 129 Mo. 176; State v. Loomis, 115 Mo. 307; State v. Hermann, 75 Mo. 340; State v. Tolle, 71 Mo. 645; State ex rel. v. Miller, 100 Mo. 447; Ewing v. Hoblitzelle, 85 Mo. 64. (4) It is the settled policy of our laws and the rule of our appellate courts, in construing laws that concern the rights and interests of widows, to favor such rights and to give such interpretation as will protect the widow. Davis v. Davis, 5 Mo. 183; Keeney v. McVoy, 206 Mo. 42; Finnell Estate v. Howard, 191 Mo.App. 218; Chrisman v. Linderman, 202 Mo. 614; Wyatt, Admr. v. White, 192 Mo.App. 554; Estate of Messersmith, 264 Mo. 619; Spurlock v. Bennett, 183 Mo. 531; Gilroy v. Brady, 195 Mo. 209; Adams v. Adams, 183 Mo. 408; Greene v. Huntington, 46 A. 883, 72 Conn. 106; Ferguson v. Gentry, 206 Mo. 190; In re Ferguson's Estate, 206 Mo. 203.
George W. Wolff and Clarence L. Wolff for repondents.
(1) Secs. 345, 351, 353, 354, 355, R. S. 1909, in the Dower Act, and directly involved in this controversy, are cognate sections supplementary to each other, and being in pari materia must be considered and construed together, as parts of one whole and complete legislation on the subject. Weindel v. Weindel, 126 Mo. 651. Such sections of a statute as are in pari materia must be treated as one section, and that construction adopted which will give effect to all of them. City of Carthage v. Carthage Light Co., 97 Mo.App. 20; State ex rel. McClanahan v. De Witt, 160 Mo.App. 307. While in interpreting a statute, the court must ascertain and expound the intention of the Legislature from the words and context of the statute, other sections in pari materia, especially when part of the same act, may be looked to for aid in arriving at its true meaning. State ex rel. v. Scale Co., 182 Mo.App. 664. In determining the legislative intent the whole body of the law must be considered, and not selected portions thereof. Gantt v. Brown, 238 Mo. 577. A familiar canon of construction is that every word of the statute, where it can be consistently done, is to be given force and effect, especially if they are in harmony with the Legislature's intention as collected from the entire act. Hegberg v. Railroad, 164 Mo.App. 557. (2) Sections 351, 353 and 354 presuppose the existence of the right of dower in the widow, as a condition precedent to her right to elect to take one-half under Section 351. The right of election rests for its statutory basis upon the right of dower. In other words, no dower -- no election. This is clearly manifest, from the words used in Section 354: "When a widow shall be entitled to dower as provided by Sections 351, 352 and 353," etc. Secs. 353-354, R. S. 1909; Dower Act 1825 and 1835; G. S. 1865-6 and all subsequent revisions; Stokes v. O'Fallon, 2 Mo. 29; Griffith v. Walker, 3 Mo. 137; Hamilton v. O'Neil, 9 Mo. 11; Hornsey v. Casey, 21 Mo. 548; Moran v. Stewart, 122 Mo. 297; Moran v. Stewart, 132 Mo. 75; Newton v. Newton, 162 Mo. 186; Von Arb v. Thomas, 163 Mo. 42. The widow's election-dower provided for in the several sections of the Dower Act is, in effect, nothing more that a "substitute" for her common-law dower. Adams v. Adams, 183 Mo. 408; Keeney v. McVoy, 206 Mo. 42; Perry v. Strawbridge, 209 Mo. 630; Newton v. Newton, 162 Mo. 186; Von Arb v. Thomas, 163 Mo. 33. (3) Election by widow under Section 351 is absolutely essential in order to vest title. Matney v. Graham, 50 Mo. 559; Crowl v. Crowl, 195 Mo. 338; Wash v. Wash, 189 Mo. 352; Allen v. Hartnett, 116 Mo. 278. (4) The creation of a new and absolute estate in fee in the widower, by the Widower's Act of 1895 (now Section 350), giving him one-half of his deceased childless wife's estate without election on his part, did not necessarily or impliedly create a new or like estate in the widow of a deceased childless husband, but left her dower and election rights intact, unimpaired and unchanged, as provided by the several dower sections and as they have been on the statutes ever since 1825 and 1835. The very purpose of said Widower's Act of 1895 was to make provision for the husband when he had no curtesy. Perry v. Strawbridge, 209 Mo. 630. It was wholly foreign to the intent of the Legislature in passing said act to make like provision for the wife when she had no dower. If the lawmakers had so intended they would have said so. (a) Repeals of laws by implication and inference are never favored. Nor can the Legislature amend or repeal an existing statute by inference from an act subsequently passed. Hawkins v. Smith, 242 Mo. 720. (b) A later statute does not repeal an earlier one by implication, nor by express provision that it repeals former acts inconsistent with it, if they can both be given effect without clear repugnancy or unreasonableness. Nichols v. Hobbs, 197 S.W. 258.
OPINION
In Banc
The plaintiff is the widow of Henry Klocke, who died childless and intestate in October, 1913. At the time of his death said Henry Klocke was seized of a vested remainder in fee (subject to a life estate in his mother, Wilhelmina Klocke) in forty-one acres of land devised to him under the will of his father, George Klocke, who died in 1904, after having made a will specifically devising to his four children all of his real estate, subject to a life tenure in their mother. Wilhelmina Klocke (the mother) died in March, 1914, and two months thereafter plaintiff brought this suit to partition the land belonging to her husband, between herself and his three surviving sisters, alleging that she is entitled to one-half thereof, and each of the defendants is entitled to one-sixth thereof. The defendants answered, admitting the devise of the land in question to the husband of plaintiff, and his death, intestate and without children, but averred that he never was in possession of the said real estate on account of the intervening life estate of his mother, wherefore plaintiff was not entitled to dower and hence not entitled to elect to take one-half of said real estate in lieu of dower. The answer prayed for affirmative relief by a decree adjudging and determining the title between the parties.
Upon the hearing the court found the issues in favor of the defendants and that plaintiff had no right, title, interest, share or estate, as the surviving widow of Henry Klocke, in the real estate in controversy.
Plaintiff duly appealed to this court.
I. The only question presented by this appeal is whether, upon the conceded facts, plaintiff is entitled under Section 351, Revised Statutes 1909, which provides that "when the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: . . . second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband's debts." A widow's right to dower at common law, many statutory substitutes therefor, and the correlative right of a husband whose wife has died without children or other descendants, are all defined in the present revision. (R. S. 1909, secs. 345 to 357, inclusive.) Those to be carried in mind in construing the one under review are: Section 345, declaratory of common law dower -- i. e. a life estate in one-third of the land of which the husband was seized during marriage; Section 350, giving the husband absolutely one-half of the estate of a wife dying without children or descendants; and Section 353, requiring election between Sections 345 and 351.
The close interrelation of these statutes require them to be construed in pari materia. As a whole they express the legislative purpose to provide for the rights and estate accruing to one spouse upon the death of the other in the circumstances posited in the several sections of the statute which together make up a general scheme of legislation. The undisputed facts show that the plaintiff would not have been entitled to dower at common law nor under the construction given to Section 345, Revised Statutes 1909 declaratory of the widow's dowable right to "the third part of all the lands whereof her husband . . . was seized of an estate of inheritance at any time during the marriage, to which she shall not have relinquished her right of dower," etc., the reason being that under...
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