Moran v. Stewart

• Citation: 33 S.W. 443,132 Mo. 73
• Parties: Moran, Appellant, v. Stewart et al
• Decision Date: 24 December 1895
• Court: United States State Supreme Court of Missouri

33 S.W. 443

132 Mo. 73

Moran, Appellant, v. Stewart et al

Supreme Court of Missouri, First Division

December 24, 1895

Appeal from Andrew Circuit Court.

Affirmed.

David Rea and James F. Pitt for appellant.

The case of Moran v. Stewart, 122 Mo. 295, can not be sustained on principle or authority and ought not to be adhered to. The rights of widows at least ought not to be imperiled until there is appropriate legislation.

P Mercer and Booher & Williams for respondents.

Defendant Samuel Stewart, is an heir of David Moran by virtue of the deed of adoption set out in plaintiff's petition and is a child capable of inheriting within the meaning of section 4518, Revised Statutes, 1889, and therefore appellant can not elect to take one half of the real and personal estate belonging to said David Moran at the time of his death absolutely, subject to the payment of debts, in lieu of dower. In re Clements, 78 Mo. 352; Reinders v. Koppelman, 68 Mo. 482; s. c., 94 Mo. 338; Sharkey v. McDermott, 91 Mo. 647; Davis v. Hendricks, 99 Mo. 478; Fasburg v. Rogers, 114 Mo. 122; Moran v. Stewart, 122 Mo. 295.

OPINION

Brace, P. J.

This is an appeal from the judgment of the circuit court of Andrew county sustaining a demurrer to plaintiff's petition.

The action is for the partition of certain real estate described in the petition, of which one David Moran died seized and possessed, who in his lifetime was twice married. The plaintiff, his second wife, as his widow, under the provisions of sections 4518, 4520, Revised Statutes, 1889, elected to take one half of the real and personal estate of her deceased husband at the time of his death, absolutely, subject to the payment of his debts, in lieu of dower; by virtue of which election she claims an undivided half of the real estate sought to be divided.

Prior to the intermarriage of the plaintiff with the said David Moran, and during the lifetime of his first wife, he and his first wife, Catherine Moran, by deed duly executed, acknowledged and recorded in pursuance of the provisions of the statute (R. S. 1889, chap. 29) adopted the defendants "as our children, heirs, and devisees, together with all the reciprocal relations of parents and children with rights of inheritance and succession to any and all our estate, personal and real, of which we or either of us may die seized to the same extent, and to all intents and purposes, as though the said Robert and Samuel Stewart were the natural children of the said David and Catherine Moran, and offspring of their own body. All parties having fully consented which is evidenced by the signatures hereto attached."

The said David Moran having died leaving the defendants, his children adopted as aforesaid, surviving him, ...