Martien v. Norris

• Decision Date: 21 March 1887
• Citation: 3 S.W. 849,91 Mo. 465
• Parties: MARTIEN v. NORRIS.
• Court: Missouri Supreme Court

3 S.W. 849

91 Mo. 465

MARTIEN v. NORRIS.

Supreme Court of Missouri.

March 21, 1887.

1. DOWER — JOINTURE — ELECTION.

Rev. St. Mo. §§ 2201, 2202, provide that, when land is conveyed to a wife as jointure, she shall not claim dower in the residue of the husband's land, unless she renounce the lands so conveyed as jointure. Held, that a conveyance of land to the wife absolutely in fee, the deed containing no provision that it is to be in discharge of her dower in other lands, does not have the effect of putting her to her election

under the statute, between that and dower, notwithstanding that the husband subsequently in making his will recited the conveyance as having been made in lieu of dower.

2. SAME — DEVISE IN LIEU OF DOWER — PERSONALTY.

Rev. St. Mo. §§ 2199, 2200, provide that a devise of land by the husband to the wife shall be in lieu of dower, unless she renounces the devise. Held, that these sections do not apply where the husband devises personalty unconditionally to the wife, but devises no land; and in such case she is not bound to renounce the provision of the will, or make an election, in order to be endowed of the husband's real estate.

3. ESTOPPEL — BY CONDUCT — DOWER — DEED.

Upon the sale of land belonging to the estate of her deceased husband, the widow, and the agent employed to make the sale, stated to the purchaser that the title to the land was perfect. It appeared that the statement was made in good faith, the widow believing at the time that the provision of her husband's will excluding her dower right was enforceable. It also appeared that the will was of record, accessible to the purchaser. He bought the land, and took the deed, without requiring her to relinquish dower, "being convinced in his own mind," as he stated, "that she had no dower." Held, that the widow was not estopped from subsequently claiming dower.

4. SAME — SALE OF INTEREST AND TITLE OF HUSBAND IN LAND — NO BAR TO CLAIM TO DOWER.

Another tract belonging to the husband's estate was put up for sale by the administrators, of whom the widow was one, and the auctioneer stated that a warranty deed and perfect title would be given, but the administrator present corrected him by saying that nothing would be sold except the title and interest of the decedent. The defendant, however, was not present when this statement was made. He purchased the land, and took an administrator's deed to it. The widow made no representations, and did not appear at all in the transaction. Held, that she was not estopped from afterwards claiming dower in the land.

Appeal from circuit court, Pike county.

Bruere & Hinman, for appellant. Macfarlane & Trimble, for respondent.

BRACE, J.

In the year 1872, James M. Martien died testate, seized of the following real estate situate in Audrain county, Missouri, to-wit: E. ½ of section 4, township 57, range 8 W., and the S. W. ¼ of section 34, township 52, range 8 W., leaving the plaintiff his widow. The testator by his will bequeathed to the plaintiff certain personal property and $100 in money, and made the following further provision, and no other, for his widow: "Sec. 3. Having purchased for my said wife the house and lot in the city and county of St. Charles with my own means, and caused the same to be conveyed to her and her heirs as evidenced by deed from James P. McKinney and wife, dated May 17, 1865, and recorded," etc., "to be held by her in lieu and discharge of her dower in my real estate, and the same having been accepted by her as such, I do in this my last will and testament make no further provision for her out of my real estate." The testator devised portions of his real estate to his children, — separate tracts to each for life, remainder to their heirs. All the residue he devised to plaintiff and one Reid, executors named in his will, in trust to pay debts, and for other purposes, and gave them express power to sell and convey. The said S. W. ¼ of section 34 he devised to two of his daughters, and the said E. ½ of section 4 was a part of the residue.

Plaintiff and Reid qualified as executors, and took charge of the estate. The executors resided in St. Charles county, and employed John P. Clark, a realestate agent living in Audrain county, to negotiate sales of land devised to them. For that purpose, in 1874 or 1875, Clark negotiated the sale to defendant of the said E. ½ of section 4, and on March 13, 1876, the executors executed and delivered to defendant a deed for said half section. Afterwards the estate passed into the hands of the public administrator of St. Charles county, who, on the seventeenth day of November, 1877, in pursuance of an order of the probate court, sold the said S. W. ¼ for the payment of debts of said testator at public sale to the defendant, and on the seventh day of March, 1878, executed to him a deed therefor. This action by the plaintiff, widow of said testator, for assignment of dower in said real estate, and for mesne profits, was commenced in the circuit court of Audrain county, December 27, 1882. As a bar to plaintiff's recovery, the defendant interposed three pleas: (1) The acceptance of a jointure in lieu of dower; (2) the acceptance of the provisions of testator's will in lieu of dower; (3) estoppel in pais.

The case was removed by change of venue to the circuit court of Pike county, and was tried by the court without a jury, and all the issues found for the plaintiff, except the issue on the plea of estoppel, which was found for defendant, and judgment rendered in his favor, from which he appeals to this court. The only question before us on the record is the action of the circuit court in finding for the defendant on the plea of estoppel; but, as the question of the plaintiff's right of dower in the land has been presented in the briefs and argument of counsel on each side, and this case will have to be remanded for further proceedings, we deem it not improper, having considered the matter, to express an opinion upon that right before passing to the consideration of the error complained of in the action of the circuit court, and which alone is directly presented by the record for review in this court. In regard to that right, it is only necessary to say that the deed from McKinney and wife to the plaintiff, being an absolute conveyance in fee of the real estate therein described to the plaintiff, containing no expression that it was to be in discharge of her dower in the real estate of her husband, did not have the effect of creating an estate of jointure, which she was by law required to renounce in order to have her right of dower in such real estate. Rev. St. 1879, §§ 2201, 2202; Perry v. Perryman, 19 Mo. 469; Dudley v. Davenport, 85 Mo. 463. That the testator by his will, having made no devise of real estate to his wife, and the bequest of personalty therein contained being voluntary and unconditional, she was not required to renounce the provisions of the will, or make an election in order to be endowed of the real estate whereof her husband died seized. Rev. St. 1879, §§ 2199, 2200; Halbert v. Halbert, 19 Mo. 453; Pemberton v. Pemberton, 29 Mo. 408; Bryant v. McCune, 49 Mo. 546. The recital in the will was no evidence by which plaintiff's absolute title in fee-simple in the real estate, conveyed to her by the deed of a stranger, could be converted into an estate of jointure; and the deed and will together, or separately, evidenced no such provision made for the wife out of the estate of the husband as required a renunciation of the provisions of the will of her husband in order that she might enjoy her right of dower in the real estate of which he died seized; and the circuit court in this case correctly held that plaintiff had right of dower in the real estate purchased by the defendant.

The testimony bearing upon the question of estoppel as to the 320-acre tract is substantially as follows:

John P. Clark, agent of the executors, testified: "I saw Reid and Mrs. Martien several times about the sale of lands belonging to the Martien estate, being employed by them to negotiate sales. I conversed with them about the title, as there were rumors to the effect that the title of deceased to the lands was defective. Both plaintiff and Reid authorized me to say to purchasers that the title was perfect. I continued to negotiate sales until the public administrator took charge of the estate. I negotiated the sale of the tract sold by the executors to defendant. It was the land he first purchased. I think it contained 320 acres. Defendant talked with...