Martin v. Jones
| Decision Date | 21 February 1911 |
| Citation | 134 S.W. 1097,155 Mo.App. 490 |
| Parties | ELVIRA MARTIN, Respondent, v. ARTHUR E. JONES, Executor, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Shelby Circuit Court.--Hon. Nat. M. Shelton, Judge.
Judgment affirmed.
Harry J. Libby for appellant.
(1) The general principal of election rests upon the obligation imposed upon a party to choose between two inconsistent and alternate rights or claims, where there is a clear intention on the part of the person or statute creating them that the taker should not enjoy both. It is an extension of the law of equitable estoppel. Graham v. Roseburg, 47 Mo. 111; Ball v. Ball, 165 Mo. 327; Fox v. Windes, 127 Mo. 512; 2 Story's Eq. Juris. (13 Ed.), sec. 1080; 2 Herman on Estoppel and Res Adjudicata, sec. 1028, p. 1156. (2) The widow having elected under the provisions of sec 2939, chapter 21, to take in lieu of the provisions of the will, and of dower proper, must take the estate and interest thereby created for her, subject to all its inconveniences and burdened with all its burdens. Fox v. Windes, 127 Mo. 512; Ellis v. Ellis, 119 Mo.App. 63; Chinn v. Stout, 10 Mo. 709. (3) The statutes sections 107 and 108 and section 2939, are in pari materia and must be considered and construed together. Sutherland Stat. Const., secs. 283-4; Looney v. Browning, 112 Mo.App. 670; Westerman v. K. of P., 196 Mo. 670; State ex rel. Brown v. Klien, 116 Mo. 259; Andrew Co. ex rel. v. Schell, 135 Mo. 31; Springfield v. Starkie, 93 Mo.App. 70; St. Louis v. Howard, 119 Mo. 41. (4) The widow of a childless testator who renounces the provisions of her husband's will and elects in lieu thereof to be endowed under the provisions of sec. 2939, R. S. 1899, of one-half the real and personal property of which her husband died seized, subject to the payment of his debts, waives her present right to the $ 400 of personalty allowed under sec. 107, article V, chapter 1, R. S. 1899, and becomes as to such an ordinary distributee. Sec. 2939, R. S. 1899; Chinn v. Stout, 10 Mo. 709; Griffith v. Canning, 54 Mo. 284; Kelley on Probate Law, sec. 424.
V. L. Drain for respondent.
(1) The claim of respondent is not a demand within the meaning of the Administration Statute. Hence the court did not err in awarding a "full judgment." Bryant v. McCune, 49 Mo. 546; In re Alrici's Estatt, 122 S.W. 761; Bramwell v. Adams, 146 Mo. 70. (2) The absolute property which the statute awards the widow vests at the death of the husband. It is not subject to the claims of creditors or the rights of distributees. The claimant in this case is clearly entitled to it. Secs. 105-108, R. S. 1899; Register v. Henly, 70 Mo. 195; Steers v. Taylor, 72 Mo. 656; Comerford v. Coulter, 82 Mo.App. 363; Glenn v. Gunn, 88 Mo.App. 423; Ellis v. Ellis, 119 Mo.App. 63. The right to it is not affected by the election of the widow. In fact the election of a childless widow does not apply to the personal estate at all. Bryant v. Christian Adm'r, 58 Mo. 98; Glenn v. Gunn, 88 Mo.App. 423; Brown v. Tucker's Estate, 117 S.W. 96; Waters v. Herboth, 178 Mo. 166.
This is a proceeding for the widow's $ 400 allowance out of the personal estate of her deceased husband. The finding and judgment were for plaintiff and defendant prosecutes the appeal.
The controversy originated in the probate court of Shelby county, but thereafter found its way into the circuit court by appeal. Plaintiff is the widow of William Parker Martin, deceased, who departed this life testate, without a child or other descendents in Shelby county, about 1909, and defendant is the executor of the estate of her deceased husband under appointment in the will. It appears deceased left an estate of about $ 26,000, which he disposed of by will, but there is nothing therein suggesting that plaintiff should not be entitled to the widow's absolute allowance under the statute, even though she accepted its terms. Plaintiff renounced the will immediately after its probate, by filing her declaration in writing duly executed and in proper form in the proper offices, in accordance with the statute. As her husband died without a child or other descendant living, plaintiff, after renouncing the will, elected, in accordance with section 353, Revised Statutes 1909, to take in lieu of her dower, discharged of debts, one-half of the real and personal estate belonging to her husband at the time of his death, absolutely, subject to the payment of the husband's debts, under the provisions of section 351, Revised Statutes 1909. Her election so made is manifested by a declaration in writing acknowledged and duly filed, etc., in all respects in conformity to section 355, Revised Statutes 1909. The election so made and manifested in writing was consummated about eight months after letters testamentary were granted to defendant, executor, under the will. Immediately thereafter, plaintiff asserted her right under the statutes. [Secs. 116, 117, R. S. 1909] to choose personal property of her deceased husband's estate as hers absolutely, not to exceed $ 400; and she made her claim thereto before such property had been distributed or sold, but defendant executor refused to accede to the demand on him, for the reason it was premature. Defendant executor asserted that by renouncing the will and electing to take one-half of her deceased husband's estate subject to the payment of debts, plaintiff's right to her absolute allowance became conditioned upon the fact that all debts were paid and and therefore postponed her to the status of an ordinary distributee of the estate. It appears that, though the estate inventoried about $ 26,000, only $ 20,000 of the amount was solvent, and demands to the amount of $ 6000 had been allowed against it in the probate court at the time plaintiff elected to take one-half of the real and personal property subject to debts. Furthermore, in addition to the demands thus allowed, a suit had been filed in the circuit court of Shelby county against the decedent's estate asserting a demand to the extent of $ 17,500. In view of these facts, the question as to whether or not plaintiff had a present right to the $ 400 allowance as absolute property or whether she was postponed in the circumstances of the case to the status of an ordinary distributee after the payment of debts became material and affords the subject of an earnest controversy.
It should be said that the court is profoundly grateful to counsel on either side for the diligent and painstaking manner in which they have briefed and argued the case, for both the main question and the sidelights thereon have been greatly elucidated by competent and discriminating lawyers, with a degree of accuracy and precision that is commendable. As a result of these efforts, we have read many authorities, and ascertain that, though there is conflict in the cases, the rule of decision seems entirely clear on the statutes.
The precise question presented for decision here was considered by our Supreme Court in Griffith v. Canning, 54 Mo 282, in which the position assumed by defendant executor was sustained and that case does not appear to have been expressly overruled. All of the material features of the present controversy are indentical with those involved in that case, and whatever may be our view of the law on the subject, it would be the duty of the court to determine this controversy in accord with the decision of the Supreme Court there given, were it not for the fact that subsequent decisions of that tribunal have totally repudiated and overturned its doctrine. In that case, the widow of a childless husband, after having renounced the will, as here, elected under the statutes (so far as material, identical with those now in force) to take one-half of the husband's real and personal property subject to debts, in lieu of the dower right which otherwise obtained in her favor as to lands, and thereafter asserted her claim as well to the $ 400 allowance out of the personal property, as here. On these facts, the Supreme Court denied the right of the widow as then present to the $ 400 allowance and said by her election she became as to the personalty only an ordinary distributee. The court declared the effect of the election to take one-half of the husband's real and personal property totally changed the attitude of the widow toward her husband's estate, and said that if no election had been made her present right to the absolute allowance of $ 400 would be clear, as such right to $ 400 was parcel of her dower, but by the election, the widow voluntarily released all dower rights and assumed the position as to the personal property of an ordinary distributee after the payment of...
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