McCreary v. Lewis

• Decision Date: 14 March 1893
• Citation: 21 S.W. 855,114 Mo. 582
• Parties: McCreary et al., Appellants, v. Lewis et al
• Court: Missouri Supreme Court

21 S.W. 855

114 Mo. 582

McCreary et al., Appellants, v. Lewis et al

Supreme Court of Missouri, Second Division

March 14, 1893

Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and Remanded.

James Orchard for appellants.

(1) The widow is entitled to dower when there is a seizin by the husband during the marriage, and unless it is relinquished by the wife in the manner prescribed by law it becomes absolute at the husband's death, and the husband by no act of his during his lifetime could defeat it. Revised Statutes, sec 4525; Grady v. McCorkle, 57 Mo. 172. (2) Is the widow estopped by any act of hers? We think not. She had the right to accept the notes as a part of her dower in the personal property. She had a right to do so and would not be estopped from claiming dower although she had knowledge that the notes were given for the purchase money. Martin v Norris, 90 Mo. 465; Dudley v. Davenport, 85 Mo 462. (3) If the grantees accepted the administrators deed and paid the purchase money without requiring the widow to relinquish her dower, then that is a full compliance with the contract and the original contract becomes void, and the deed is the evidence of the contract as said contract is merged in the deed, and the court should have so decided the law. Wheeler v. Ball, 26 Mo.App. 443; Herryford v. Turner, 67 Mo. 295.

Olden & Orr for respondents.

We submit that if the petition herein states a cause of action so as to give plaintiffs any standing in this court, that this case must stand or fall upon the pleadings and agreed statement of facts, letters and receipts read in evidence. There is no principle better settled than that a doweress may be barred of her right to claim dower by such conduct as will amount to an estoppel in pais. Hart v. Giles, 67 Mo. 175; Sweaney v. Mallory, 62 Mo. 485; 2 Scribner on Dower, 251-257; 4 Kent [9 Ed.] 287. Dougrey v. Tapping 4 Paige, 94, was a case where the land of an intestate was sold by administrator and administratrix under order of court, the mere silence of the doweress who was the administratrix to assert her claim at the sale worked an estoppel. In Smiley v. Wright, 2 Ohio 506, the widow was present at the sale of her deceased husband's land, and consented to the sale freed from dower, and she was held to be estopped, notwithstanding her ignorance of her rights. The case of Ellis v. Diddy, 1 Ind. 561, was not unlike the case at bar. In that case it was pleaded that the widow concurred in the application for the order for the sale by the court, and received a portion of the purchase money as her dower. The plea was held good. In Walling v. Burgess, 22 N.E. 419, the widow of a deceased partner received the proceeds of the sale of the realty of the firm in excess of what was required to pay firm debts, and she was estopped from claiming dower as against the purchasers and their vendees under the sale. In Stoney v. Bank, 1 Rich. Eq. 275, when the executrix, who was also the widow, filed a petition for sale of the land, and made no claim of dower, she was held barred. To the same effect is Thomas v. Harris, 43 Pa. St. 231, where the widow was also administratrix. Courts of equity should view with disfavor claims like that of the plaintiffs, which can only tend to disturb titles and retard improvements, and which, if allowed, in the language of Judge Scott, would "make the dead sin in their graves." Gregg v. Wells, 10 Ad. & E. 98; Niven v. Belknap, 2 Johns. 588.

OPINION

Gantt, P. J.

This is an action for dower in a lot in West Plains, Howell county, and for rents during the time the widow claims she was deforced of her right.

The petition alleged the marriage of the plaintiff, Clara J. McCreary, to A. I. Guthrie, in his life time; that he was seized in fee simple of the lot described in the petition during their marriage and his ownership thereof till his death. It alleges his death and her survivorship as his widow, her subsequent marriage to J. A. McCreary; the sale of one half of her dower right in said lot to her co-plaintiff Van Wormer, the present ownership of the fee by defendants, James and Ida Lewis, and that Blackiston has a mortgage of $ 900 on the lot.

Defendants for answer aver that Guthrie in his lifetime in the year 1885 sold said lot to Hilliard & Frazier for $ 200, and gave them a title bond for a good and sufficient warranty deed; that Frazier & Hilliard executed their joint promissory notes to Guthrie for the purchase money for said lot and entered into possession under their bond for a deed; that after Guthrie's death J. T. Hale was duly appointed, and qualified as his administrator; and among other proceedings in said administration it was shown to the probate court that Guthrie had made said sale and given bond for a deed; that Frazier & Hilliard had taken possession, and made lasting and valuable improvements and had fully complied with their contract by paying the purchase money, and thereupon said court ordered said administrator to convey said lot to them by a good and sufficient deed, which he did; that these defendants are the grantees of Hilliard & Frazier. They further aver that the money so paid by them was paid to said Clara J. as a part of her dower in the personal estate of her husband; that final settlement of her husband's estate has been made; that she is estopped from claiming dower in the lot. They also aver that there were no improvements on the lot when they purchased it.

The cause was submitted to the court upon the pleadings, the following agreed statement, letters and receipts:

"First. That A. I. Guthrie was the owner in his lifetime of the land described in plaintiff's petition; that he sold said lands to the grantor of the defendants herein and executed a title bond agreeing and binding himself, his heirs and executors and administrators to execute a good and sufficient warranty deed or deeds on the payment to him of the sum of $ 200 which was evidenced by two promissory notes executed to said A. I. Guthrie for $ 100 each.

"Second. That Clara J. McCreary, one of the plaintiff's herein, was the wife of the said A. I. Guthrie, deceased, at the time of the sale of said lands and from that time up to the time of his death; that she has, since the death of said Guthrie, intermarried with J. A. McCreary.

"Third. That said Clara J. McCreary (nee Guthrie) did not join with her husband in the execution of said title bond and never at any time signed, executed or acknowledged any instrument conveying said lands to anyone.

"Fourth. That at the time of the death of the said A. I. Guthrie no part of said $ 200 had been paid, and no deed had been executed by the said A. I. Guthrie, but that said A. I. Guthrie held said notes at time of his death.

"Fifth. That after the death of said A. I. Guthrie the said notes were held by Clara J. McCreary (nee Guthrie) as a part of her dower, and that the money was paid to her on said notes, and that she knew and had personal knowledge that the notes were given for the purchase money of said lands, and had knowledge that the money was the proceeds of the sale of said real estate described in plaintiff's petition, and that her husband had executed the bond in question, and that the notes were given in consideration of said bond and sale.

"Sixth. That after the death of Guthrie, J. T. Hale was appointed administrator of his estate to carry out the contracts for the sale of the land, and did execute to the grantors of said Guthrie a deed conveying the interests of said Guthrie in said lands by order of the probate court, under section --, Statutes, 1879, but that the widow of said Guthrie did not join in said deed."

Defendants then introduced the following letters and receipts:

"Peru, March 12, 1886.

"Mr. J. T. Hale.

"Dear Sir: -- In answer to your note, I will say, as to Hilliard & Frazier, I will discount both of their notes $ 10 if that will pay them both off at once. That is the best I can do with them. If you can do any better with them you will please do it, and oblige,

"Clara J. Guthrie."

"Pocahontas, Arkansas, March 27, 1886.

"J. T. Hale, Esq., West Plains, Mo.

"Dear Sir: -- Yours of date March 18, 1886, is at hand and contents noted. Since the transfer of this note I have married Miss Clara J. Guthrie. The note executed to A. I. Guthrie by Hilliard & Frazier I send you for collection, and when paid, forward money to Mrs. Clara J. McCreary, by postoffice order on Pocahontas, Randolph county, Arkansas.

"Respectfully,

"J. A. McCreary."

"June 30, 1886.

"$ 163.00.

"Received of J. T. Hale, one hundred and sixty-three dollars, balance due on Hilliard & Frazier notes to A. I. Guthrie, deceased.

"Clara J. McCreary."

"Peru, Arkansas, February 17, 1886.

"$ 25.00.

"Received of J. T. Hale, my attorney at West Plains, twenty-five dollars on Hilliard & Frazier note.

C. J. Guthrie."

This was all the evidence offered. Thereupon the plaintiffs asked the court to give the following declarations of law:

"Number 1. The court declares the law to be that, if the said A. I Guthrie, deceased, during his lifetime bargained and sold the said north half of lot 8 in block 1 in the city of West Plains, Missouri, and...