Lewellen v. Lewellen
| Decision Date | 05 February 1929 |
| Citation | 13 S.W.2d 565,223 Mo.App. 262 |
| Parties | JAMES H. LEWELLEN, MAGGIE LEWELLEN, ANNIE TAPLEY AND W. H. TAPLEY, APPELLANTS, v. SUSIE C. LEWELLEN, RESPONDENT. [*] |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Audrain County.--Hon. Ernest S Gant, Judge.
AFFIRMED.
Judgment affirmed.
W. H Logan and W. W. Botts for plaintiffs, appellants.
(1) The object of all interpretation of law is to reach the true intent and meaning of the law-making authority. Grimes v Reynolds, 184 Mo. 679, 83 S.W. 1132; Keeny v. McVay, 206 Mo. 42, 103 S.W. 946; State ex rel. Eaton v. Gmelich, 208 Mo. 152, 106 S.W. 618. (2) A thing which is in the intention of the makers of the statute is as much within the statute as if it were in the letter. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487; State ex rel. Hanner v. Wiggins Ferry Co., 208 Mo. 622, 106 S.W. 105; Keeny v. McVay, 206 Mo. 42, 103 S.W. 946. (3) The reason of the law should prevail over the letter, as not to lead to injustice or an absurd conclusion; the presumption being that the Legislature intended no such anomalous results. State ex rel. McPherson v. St. L. & S. F. R. Co., 105 Mo.App. 205; Lamar Water & L. Co. v. City of Lamar, 128 Mo. 188, 26 S.W. 1025; Chauteau v. Mo. Pac. R. R., 122 Mo. 375, 22 S.W. 458. (4) The amount of dower shall be diminished by the amount of the interest of the widow in the homestead, if the dower exceeds the homestead, and if the homestead exceed the dower, no dower shall be set off to the widow. Seek v. Haynes, 68 Mo. 13; Gragg v. Gragg, 65 Mo. 343; Gore v. Riley, 161 Mo. 238; Graves v. Cochran, 68 Mo. 74; Rohrer v. Brokage, 86 Mo. 544. (5) Widow cannot claim both dower and homestead. Eggleston v. Eggleston, 72 Ill. 24; Stevens v. Stevens, 50 Iowa 491; Glover v. Hill, 57 Miss. 240. (6) Dower is the interest of the widow in the real estate of her deceased husband. Bryant v. McCune, 49 Mo. 546. (7) What the widow takes by election is nothing more or less than dower. Newton v. Newton, 162 Mo. 173. (8) The share of the widow in her childless husband's estate, procured by election, was denominated dower in the statutes of the date of the Homestead Act. See sections 5 and 9 of the chapter on Dower, General Statutes of Missouri, 1866, page 520. (9) In the original Homestead Act the widow's homestead was a fee-simple estate, if her husband had such estate. Skouten v. Wood, 57 Mo. 380; Mills v. Mills, 141 Mo. 195, 42 S.W. 709. (10) The homestead given to the widow by the homestead act is pro tanto in lieu of dower, and not cumulative, unless homesead exceeds dower. Redick v. Walsh, 15 Mo. 521; Bryant v. McCune, 49 Mo. 546; Newton v. Newton, 162 Mo. 173; Graves v. Cochran, 68 Mo. 76; Glover v. Hill, 57 Miss. 240; sec. 5859, Rev. Stat. 1919; sec. 6, Estate of Homestead, Gen. Statutes, 1866; sections 5, 7, 8, 9 and 11, Chapter on Dower, Gen. Stat. 1866. (11) When a word which has a known legal meaning is used in a statute it must be assumed that the term is used in its legal sense, in the absence of an indication of a contrary intent. 2nd Encyclopedia of Law, Vol. 26, page 607, 608; State v. Williams, 35 Mo.App. 54; Haydon v. Little, 35 Mo. 418. (12) That meaning must be given to words which they had at the date of the act. People v. Amrickson, 161 Ill. 223; Jackson v. Garland, 64 Mo. 133; State v. Atlantic City, 56 N.J. 232. (13) In arriving at the intent of the Legislature in enacting a statute, not only must the whole statute and every part of it be considered, but where there are several statutes in pari materia, they are all whether referred to or not, to be taken together and one compared with another, in the construction of any material provision. Hannibal R. R. Co. v. Shacklett, 30 Mo. 216; State v. Clark, 54 Mo. 215; Matter of Bonino, 83 Mo. 441; Powell v. Sherwood, 162 Mo. 605; Grimes v. Reynolds, 94 Mo.App. 584. (14) Where the meaning of a statute is doubtful the construction most agreeable to reason and justice should be adopted as embodying the intention of the law-makers, for it will not be presumed that the legislature contemplated unreason or injustice. Neeman v. Smith, 50 Mo. 525; Fusz v. Schamport, 67 Mo. 256; State v. Hays, 81 Mo. 574; Potter v. Douglass County, 87 Mo. 239. (15) The Homestead law is solely a protection for the home against creditors and heirs and secures to the widow a minimum of $ 1500 worth of property as a home, if he had a home worth that much, out of the lands of her deceased husband, and cannot be invoked to secure to her more than that amount. To do so as is attempted in this case is judicial legislation pure and simple.
Russell E. Holloway for the respondent.
(1) When the widow elects to take under section 321 of the Revised Statutes of Missouri, she is entitled first to one-half the real estate and a homestead in the balance. Adams v. Adams, 183 Mo. 396 (82 S.W. 66); McFadin v. Board, 188 Mo. 688 (87 S.W. 848); Quail v. Lomas, 200 Mo. 674 (98 S.W. 617) 100 S.W. 1090. (2) Contiguity of land is not necessary in the statutory definition of a homestead. Adams v. Adams, 183 Mo. 396 (82 S.W. 66); Perkins v. Quigley, 62 Mo. 503.
Haid, P. J., not sitting.
W. B. Lewellen died on April 10, 1923, intestate. At the time of his death he owned certain lots in the town of Laddonia, Audrain county, Missouri. On these lots was located the home in which he lived at the time of his death, and occupied as a homestead. He also owned a farm in Audrain county, and certain other real estate. The said W. B. Lewellen having died childless, and there being no heirs except his wife, his brother J. H. Lewellen, and his sister Mrs. Annie Tapley, the widow elected to take one-half of all his real estate, subject to payment of his debts.
Plaintiffs brought this action in partition in the circuit court of Audrain county. An interlocutory decree was entered by consent of all the parties, ordering the sale, for cash, of all the lands which W. B. Lewellen owned, including the homestead, reserving disposition of the homestead value for determination on the final order of distribution. The estate of the deceased had been fully administered, all debts paid, and the administratrix discharged. Upon the approval of the report of sale of all the real estate, including the homestead, an order or distribution was made in said partition suit. The proceeds of this sale, after deducting the cost and expenses, amounted to $ 13,889.32, and the widow was given one-half, namely, $ 6,994.66. From the remaining half the court deducted the sum of $ 1500, the widow having consented to the sale of the homestead, and ordered the said sum of $ 1500 impounded for the use of the widow during her natural life or widowhood, and the remainder divided between the brother and sister of deceased. From this order of distribution plaintiffs were granted an appeal to the Supreme Court. The Supreme Court held that under the facts as disclosed by the record, only $ 1500 was involved, and, therefore, that court had no jurisdiction. Accordingly, the case was transferred to this court for determination.
The contention of plaintiffs on appeal is that the widow's one-half of the proceeds being in excess of the homestead, necessarily included the homestead right, and that was all she was entitled to receive under the law. Appellants also argue in their briefs here that the judgment should be modified so that the $ 1500 be deducted from the total proceeds and the remainder go one-half to the widow and the other one-half to plaintiffs as collateral heirs.
The judgment of the circuit court, in our opinion, was correct and followed the law as laid down by our Supreme Court, as will be seen by reference to the cases of Adams v Adams, 183 Mo. 396, 82 S.W. 66; McFadin v. Board, 188 Mo. 688, 87 S.W. 948; Quail v. Lomas, 200 Mo. 674, 98 S.W. 617. The holdings in these cases are to the effect that when a wife elects to take a half interest in the estate of her deceased husband, as she is entitled to do under the facts as disclosed here, she does not loose her...
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