McFarland v. Baze's Adm'r

• Decision Date: 31 January 1857
• Citation: 24 Mo. 156
• Parties: MCFARLAND AND WIFE, Respondents, v. BAZE'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

24 Mo. 156

MCFARLAND AND WIFE, Respondents,

v.BAZE'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

January Term, 1857.

1. The right of a widow to $200 worth of personal property, under section 30, of article 2, of the administration act (R. C. 1845, p. 77), will pass by a deed of such widow relinquishing to the administrator of her deceased husband's estate, all her “right, title and interest of dower in said estate;” and that without reference to the question whether there is or is not a consideration for the assignment.

Appeal from Barry Circuit Court.

This was an application by Wm. McFarland and wife originally to the County Court of Barry county (whence an appeal was taken to the Circuit Court), for an order upon the administrator of one J. H. Baze's estate, requiring him to pay over to plaintiffs $225, the proceeds of the sale by said administrator of personal property belonging absolutely to the widow of defendant's intestate, who had since intermarried with plaintiff McFarland, and who joined with her husband McFarland in this suit. The bill of exceptions states that the defendant, “after laying the proper foundation,” offered in evidence the following instrument, executed by the widow of Baze, defendant's intestate, before her intermarriage with McFarland: “State of Missouri, county of Barry. Know all men by these presents that I, Elizabeth Baze, widow and relict of Jesse H. Baze, deceased, late of Barry county, do by these presents relinquish all my right, title and interest of dower in said estate, and make over the same to John Baze, administrator of said estate, in order that the same may be applied to the payment of the debts of the deceased, and for the benefit of the minor heirs of said deceased. In testimony whereof, I have hereunto set my hand and seal this 8th day of August, 1854. [Signed] Elizaabeth Baze. (Seal.)”

The refusal to permit said instrument to be read in evidence constitutes the error complained of.

T. P. Wright, for appellant.

W. Horne, for respondent.

LEONARD, Judge, delivered the opinion of the court.

The two hundred dollars' worth of a deceased husband's personal property, which is allowed to the widow by the 30th section of the administration law, is expressly spoken of in the statute as part of her dower in his estate, and vests in her immediately upon her husband's death, discharged of the lien of the debts. (Hastings v. Myers, 21 Mo. 519.) This property was, therefore, within the very words of the deed of assignment, and passed thereby to the administrator upon the trusts there declared, unless there be some other objection to the efficacy of the transfer besides the sufficiency of the description to embrace it.

It has been suggested that this interest was a mere right in action, and, therefore, incapable of being...