Moseley v. Bogy

• Decision Date: 17 November 1917
• Citation: 198 S.W. 847,272 Mo. 319
• Parties: VIOLET BOGY MOSELEY v. BERNARD P. BOGY et al; BERNARD P. BOGY, Appellant
• Court: Missouri Supreme Court

198 S.W. 847

272 Mo. 319

VIOLET BOGY MOSELEY v. BERNARD P. BOGY et al; BERNARD P. BOGY, Appellant

Supreme Court of Missouri

November 17, 1917

Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.

Affirmed.

S. T G. Smith for appellant.

(1) A married woman cannot by will dispose of her real property except subject to the rights of the husband to his curtesy therein. Sec. 536, R. S. 1909. (2) Where a man and woman are married and issue capable of inheriting is born of said marriage, the husband, by operation of law, immediately becomes vested of a freehold estate in all real property of which the wife was seized at the time of her death. Myers v. Hansbrough, 202 Mo. 495; Donovan v Griffith, 215 Mo. 149; Kennedy v. Koopman, 166 Mo. 87; Fitzgerald v. Brennan, 57 Conn. 743; Foster v. Marshall, 22 N.H. 491; In re Folwell's Estate, 59 A. (N.J.) 467. (3) A provision in a will of a wife in favor of her husband will never be presumed to be in lieu of curtesy unless such a design is unequivocally expressed. Bryant v. Buford, 49 Mo. 546; Hasenritter v. Hasenritter, 77 Mo. 162; Richardson v. DeGiverville, 107 Mo. 422; Burnley v. Thomas, 63 Mo. 392; Pemberton v. Pemberton, 29 Mo. 408; 1 Jarman on Wills (6 Ed.), p. 547. (4) Where a testatrix owns a partial interest in real estate and devises the "whole of my estate," all that passes by her will is that part of the fee simple which is left in the testatrix by the law after the curtesy right of the husband has been cut out of the fee simple, and such a devise does not convey, or attempt to convey, the curtesy right of the husband. Myers v. Hansbrough, 202 Mo. 495; Donovan v. Griffith, 215 Mo. 149; Pratt v. Douglas, 38 N.J.Eq. 510; Penn v. Guggenheimer, 76 Va. 839. (5) Where a testatrix has only a partial interest in real estate and in her will employs general words in disposing of same, such as "my whole estate," "all my lands," "all my estate," no case of election arises which requires a devisee holding a part of the property to elect whether he will take under the will or keep what he already has. Keas v. Gross, 92 Mo. 647; Penn v. Guggenheimer, 76 Va. 839; Tony v. Spragins, 80 Ala. 541; Charch v. Charch, 57 Ohio St. 561; Pratt v. Douglas, 38 N.J.Eq. 510; 1 Pomeroy on Eq. Jur., sec. 473. (6) The word "my" in a will used to describe property disposed of is expressive of restriction to the extent of the interest of the testator only. Sauvage v. Wanhop, 143 S.W. 259; Emery v. Haven, 67 N.H. 505; Estate of Mumford, 1 Myrick Prob. R. 134; Thomas v. Blair, 111 La. Ann. 683. (7) If the court should find that this case is a case for an election, it appearing that the appellant Bernard P. Bogy has never exercised his right of election, then he is still entitled to elect as to which he will take, his curtesy right, or the half given by the will of his wife, Eleanor M. Bogy. Pratt v. Douglas, 38 N.J.Eq. 510; Shuster v. Morton, 187 S.W. 2; Stone v. Cook, 179 Mo. 534.

Arthur G. Moseley and W. W. Herron for respondent.

(1) The action for partition in this case should be sustained, although it might be held that the defendant has title by curtesy. R. S. 1909, sec. 2559; Atkinson v. Brady, 114 Mo. 202. (2) The rules of law with reference to curtesy and dower are closely analogous in this State, and a construction placed upon the rights of the party in the one instance will, when it can be done, be placed upon the rights of the party in the other. R. S. 1909, secs. 120, 360, 361, 535, 536; Teckenbrock v. McLaughlin, 246 Mo. 717; Moore v. Hurd, 76 Kan. 826; Everett v. Kresky, 92 Iowa 333. (3) Estates given by will are always regarded as vesting immediately unless the testator has clearly manifested an intention that they should be contingent upon a future event. Schofield v. Allcott, 120 Ill. 374. An intervening life estate in one of the donees was not contemplated by the testatrix making this will, and consequently not intended by her; an intervening life estate would delay the enjoyment of the provisions made in the will for the benefit of the three donees and cannot but be antagonistic to the provisions of the will and the intention of the testatrix as shown thereby. (4) Where the surviving husband who otherwise would be entitled to a curtesy in the lands of his deceased wife is left a part of her lands in the will, he is obliged under the law to elect whether or not he will take under the will or under the law, for he cannot take under both. Casler v. Gray, 159 Mo. 595; Young v. Boardman, 79 Mo. 186; Stone v. Cook, 179 Mo. 534, 64 L.R.A. 287; Fox v. Windes, 127 Mo. 511, 48 Am. St. 648; 1 Woerner, Am. Law of Adm. (2 Ed.), p. 500; Wood v. Trust Co., 265 Mo. 511; Schuster v. Morton, 187 S.W. 2; Clark v. Clark, 132 Ind. 25; Robertson v. Schard, 142 Iowa 500; Clark's Appeal, 79 Pa. 377; McBride's Estate, 81 Pa. 305; Severson v. Severson, 68 Ohio 656; Aschenford v. Chapman, 81 Kan. 312; Pearson v. Darrington, 32 Ala. 240; Allen v. Boomer, 82 Wis. 371; McReynolds v. Jones, 30 Ala. 101. (5) The will must be accepted as a whole. The donee cannot accept the part that is in his favor and reject the portion that may be against him. Wood v. Trust Co., 265 Mo. 211; Stoeckler v. Silberberg, 220 Mo. 270; Davidson v. Davis, 86 Mo. 444; O'Brien v. Ash, 169 Mo. 300; Cunningham v. Cunningham, 30 W.Va. 604; Stone v. Cook, 179 Mo. 534; Ditch v. Sennott, 117 Ill. 367. (6) The appellant by his acts in probating the will, qualifying under it as executor, as well as by other conduct with reference thereto, elected to take under the will, and now cannot relinquish. Davidson v. Davis, 86 Mo. 440; Allen v. Allen, 124 N.C. 334; Allen v. Boomer, 82 Wis. 372; Smith v. Wells, 134 Mass. 11; Mitchell v. Vest, 136 N.W. 1055; Craig v. Conover, 80 Iowa 358; In re Frank's Estate, 66 N.W. 919; Appeal of Coe, 64 Conn. 352; In re Melot's Estate, 231 Pa. 520; Hyde v. Baldwin, 17 Pick. (Miss.) 307; Weeks v. Patten, 18 Me. 47; Martin v. Battey, 87 Kan. 582; Hoggard v. Jordan, 14 N.C. 610; 6 Am. & Eng. Ann. Cas. 634; Schuster v. Morton, 187 S.W. 2. (7) Under the Married Woman's Act a husband has no vested estate in his wife's separate property during her life. Evans v. Lobdale, 6 Houst. (Del.) 215. (8) In the construction of a will the intention of the testator must prevail unless it is contrary to some rule of law. Borland on Wills, p. 296; Burnet v. Burnet, 244 Mo. 497. (9) The estate by curtesy is derived by the husband through his wife and contemplates a continuation of the estates of the wife in the husband during his life and makes no break in the succession, whereas title by will is an alienation and constitutes a passing of the title. 1 Washburn on Real Property, p. 159; Hayes v. Barrniger, 169 F. 224.

WHITE, C. Bond and Walker, JJ., concur; Graves, C. J., Faris and Woodson, JJ., concur in separate opinion by Graves, C. J.; Blair, J., dissents; Williams, J., dissents, and adopts the opinion of Roy, C., as his dissenting opinion. ROY, C., dissenting.

OPINION

In Banc.

WHITE C.

The plaintiff sued in ejectment for a one-fourth interest in certain real estate in the city of St. Louis, and in a second count of the petition demanded partition of the same alleging that the plaintiff was entitled to an undivided one-fourth interest in fee simple in the premises; the defendant Bernard P. Bogy to an undivided one-half interest, and the defendant Bernard P. Bogy, Jr., to an undivided one-fourth interest. Plaintiff is the daughter, and defendant Bernard P. Bogy, Jr., is the son, of Eleanor M. Bogy, deceased, and defendant Bernard P. Bogy is the surviving husband of Eleanor M., and the father of Violet and Bernard P., Jr. Plaintiff claims under the will of her mother who died June 10, 1904. Defendant Bernard P. Bogy in his separate answer asserts his right to possession of the property in dispute, by virtue of his curtesy.

The plaintiff in reply set up the will of Eleanor M. Bogy, alleged that Bernard P. Bogy accepted its provisions, and elected to take under it, and further alleged that by such acts he was estopped to claim any interest in the real estate contrary to its provisions. The first clause of the will is as follows:

"First. Should I die leaving surviving me my husband and a child or children, then it is my will that my whole estate, real and personal, be divided between my husband and children, in the proportion of one half to my husband and one half to my child or children."

The third clause is as follows:

"Third. Should I die leaving surviving me neither husband nor children, then and in such event I give, devise and bequeath my whole estate, both real and personal, to my mother Ann E. Griffith."

The fourth clause appoints Bernard P. Bogy executor and requests that he may serve without bond. The judgment of the circuit court was in accordance with the prayer of the petition.

I. If it was the intention of the testatrix by the first clause of the will to give her husband an undivided one-half interest in fee simple in the premises and to her children an undivided half interest in fee simple, and that intention clearly appears, then Bernard P. Bogy was put to his election as to whether he would claim under the will or claim his curtesy devolved upon him by operation of law. The two claims are inconsistent. The children could not have their fee simple interest if his curtesy should be carved out leaving them only a remainder, and he would not have a vendible, fee-simple, half interest in the property if he simply held his life estate in the whole.

The principle applicable here has been considered and discussed in all its important phases in recent adjudications of this court. The rule announced by this court may be stated thus Where a testator by will attempts to dispose of property which the will...