Lackland v. Stevenson

• Decision Date: 31 October 1873
• Citation: 54 Mo. 108
• Parties: H. C. LACKLAND, Adm'r of HARRIET E. NELSON, deceased, Appellant, v. GEORGE STEVENSON, Respondent.
• Court: Missouri Supreme Court

54 Mo. 108

H. C. LACKLAND, Adm'r of HARRIET E. NELSON, deceased, Appellant,

v.GEORGE STEVENSON, Respondent.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Charles Circuit Court.

Lackland and Broadhead, for Appellant.

I. It devolved upon the defendant to show a will conveying real estate to the wife duly probated, and that one year had elapsed since the completion of the probate thereof. (W. S., 541, §§ 15, 16.) The will offered in evidence was not proved or probated, as required by law. (W. S., 1366, §§ 13, 15.) Neither clerk nor court passed judgment upon the will; and it was not admissible in evidence. (W. S., 1367, § 26; Charlton vs. Brown, 49 Mo., 353; Creasy vs. Alverson, 43 Mo., 13; Milan, Adm'r vs. Pemberton, Adm'r, 12 Mo., 598.)

II. The widow must file her renunciation of the will “within twelve months after the proof of the will.” The word proof is there synonymous with probate, and the statute must mean within twelve months after the proof is received and closed up by a judgment of probate.

III. The records of the probate court are open to the whole world; and the administrator and purchasers are bound to know at their peril the law and the condition of the title. (Tapley vs. McPike, 50 Mo., 589.)

W. A. Alexander, for Respondent, claimed, setting out the facts:

I. The widow was estopped from claiming dower.

II. There was sufficient evidence of the probate of the will, and that the formal entry is seldom made.

NAPTON, Judge, delivered the opinion of the court.

This is a suit for dower. The plaintiff was the widow of John W. Nelson, who died in 1860, and died seized of certain lands in the county of St. Charles. She claims in her petition, that no dower has been assigned to her, and that she is entitled to one-third for life in said real estate.

The defendant for answer, after admitting death and seizure, &c., sets up; that said Nelson made a will, which was duly proven and probated and recorded, and letters testamentary granted theron; that by said will the testator left his widow seven slaves and other personal property and also all his lands, and among other lands, that in which she now claims dower; that the plaintiff never renounced said will in the time and mode provided by law; that the plaintiff took the personal property and possession of the lands and received the rents and profits thereof until 1865, when it became necessary to sell said lands to pay the debts of testator; that the defendant was the purchaser at said sale, and has been in possession under said purchase ever since.

The ground, upon which the plaintiff claims a right to dower in this land, notwithstanding the will, and notwithstanding its renunciation took place twelve years after the death of the testator and nearly that time after the grant of letters testamentary, is that no judgment of probate appears to have been entered on the records of the court. The 15th section of the act concerning Dower (R. C., 1855, p. 671), provides, that a devise of real estate to the wife shall bar dower in real estate, unless the will otherwise declares; and the 16th section provides, that in such cases the wife is barred of dower, unless, by a writing duly executed and acknowledged, and filed in the office of the court, in which the will is proven and recorded, within twelve months after proof of the will, she renounces the provisions of the will.

The testimony in this case shows, that under a commission from the County Court the two subscribing witnesses to the will were examined, and the depositions returned into court, and no objections were made to the sufficiency of the proof. The will was then recorded in the book appropriated to the records of wills, with the proofs annexed. An administrator with...