McFadin v. Board

• Decision Date: 24 May 1905
• Citation: 87 S.W. 948,188 Mo. 688
• Parties: McFADIN et al. v. BOARD.
• Court: Missouri Supreme Court

87 S.W. 948

188 Mo. 688.

McFADIN et al. v. BOARD.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

ELECTION TO TAKE IN LIEU OF DOWER — HOMESTEAD.

Rev. St. 1899, § 3621, providing that, if the widow's interest in the homestead equal a third interest for her life in all real estate of which her husband died seised, no dower shall be assigned her, has no effect to deprive her of her homestead interest under any circumstances, where she elects to take a child's part in lieu of dower.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Laura A. McFadin and husband against Lucy B. Board. Judgment for plaintiffs. Defendant appeals. Reversed.

Fry & Rodgers, for appellant. P. H. Cullen, for respondents.

BRACE, P. J.

This is an action for partition and assignment of dower, which was tried below on an agreed statement of facts, from which it appears that on the 5th day of July, 1902, Thomas Board died seised of a farm of 179½ acres in Audrain county, of the value of $4,936.25 (subject to a mortgage thertofore executed by him and his wife, amounting to $2,033), a homestead in the city of Mexico of the value of $1,500, and some other lots in said city, of the value of $300. He left surviving him his widow, the said defendant, Lucy B. Board, and one child by her, the plaintiff, Laura A. McFadin, his only heir at law. Thereafter the widow elected to take a child's part in lieu of dower in the real estate of which her husband died seised, and the trial court found that, having so elected, she had no homestead interest in any of the real estate of which her husband died seised, and upon this finding the judgment was entered, from which the defendant appeals.

By section 3621, Rev. St. 1899, it is provided that: "The commissioners appointed to set out such homestead shall, in cases where the right of dower also exists, also set out such dower, and they shall first set out such homestead, and from the residue of the real estate of the deceased shall set out such dower, but the amount of such dower shall be diminished by the amount of the interest of the widow in such homestead; and if the interest of the widow in such homestead shall equal or exceed one-third interest for and during her natural life, in and to all the real estate of which such housekeeper or head of a family shall have died seized, no dower shall be assigned to such widow." The learned trial judge reached his conclusion, as appears by his opinion reproduced in the...