Mount v. Valle

• Citation: 19 Mo. 621
• Parties: MOUNT, Plaintiff in Error, v. VALLE, et al., Defendants in Error.
• Decision Date: 31 March 1854
• Court: Missouri Supreme Court

19 Mo. 621

MOUNT, Plaintiff in Error,

v.VALLE, et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1854.

1. Under the act of 1825, a widow's dower was barred by an administration sale to pay her husband's debts.

2. The failure to file the accounts and lists with a petition for an administration sale, will not render the sale void, especially where the petition itself contains a statement of the condition of the estate.

Error to St. Louis Circuit Court.

This was a petition filed by Eleanor Mount, in February, 1852, to recover dower in certain real estate in the city of St. Louis, of which her husband, Britton Mount, died seized in February, 1832. The defendants claimed title under an administration sale, after the death of Mount, to pay debts due from the estate.

On the 9th of August, 1833, Daniel Busby, administrator of Britton Mount, filed a petition praying for an order of sale of the real estate in controversy to pay debts. The petition stated that the proceeds arising from the sale of the personal property of the deceased amounted to $432.64; that the debts already allowed against the estate amounted to $1311.87 1-2, leaving a balance of $968.11, for the payment of which there were no assets in his hands; and that other debts were due from the estate which had not yet been presented for allowance, which would nearly, if not quite, balance the debts inventoried as due to the estate. No separate accounts or lists were filed with the petition. On the same day, the court made an order of publication. On the 5th of November, 1833, upon proof of the publication of the order, according to law, the court made an order of sale. The sale was made and confirmed. The defendants showed title under the sale. The administrator accounted for the proceeds, and upon final settlement the plaintiff received a distributive share of the estate. The court below declared that the sale was a bar to the widow's dower, and gave judgment accordingly. The plaintiff brings the case here by writ of error.S. A. Holmes, for plaintiff in error.

1. No title passed by the administration sale, because the petition filed by the administrator was not accompanied by the proper accounts, lists and inventories. This point did not arise in the case of Overton v. Johnson, 17 Mo.

2. The widow's dower was not affected by the administration sale. Although her dower may be subjected to the payment of debts, it cannot be reached in this way. R. C. 1825, vol. 1, tit. “Administration,” § 46. Ib. § 67. The title to dower becomes consummated upon the death of her husband, and when assigned, the widow is in under the husband and not the heir. That her right was not to be held in abeyance until final settlement may be seen by reference to the Revised Code, 1825, tit. “Dower,” § 9; 1 Hilliard Abr. 68, 72 and cases there cited; Ib. 76; 4 Mass. 388.

3. The fact that the widow received her distributive share of the estate does not affect her rights here. Wyatt v. Brown, 8 S. & M. 365.

R. M. Field, for defendants in error.

GAMBLE, Judge, delivered the opinion of the court.

The plaintiff, whose husband died in 1832, claims dower in property of her husband, which was sold by his administrator, under an order of the county court of St. Louis county, in 1832, to pay the debts of the intestate.

The defendants rely upon the sale, and upon the fact that the widow settled with the administrator, and received her portion of the surplus arising from the sale of the real estate, after paying the debts.

1. A widow was not entitled to dower under the code of 1825, which was in force at the time of the death of the plaintiff's husband, “until all just debts due or to be due by her deceased husband, shall have been paid.” R. C. 1825, 333, sec. 1. The same proviso in which this language is used, makes a sale of real estate of the husband, under execution in his life-time, a bar to her dower in the estate so sold. In whatever mode, under the law, the property is disposed of for the payment of the husband's debts, the widow could have no right to dower therein. If it was sold after his death by a proper proceeding, in order to pay his debts, her dower is as effectually barred, as if it had been sold on execution in his life-time.

2. We next...