Murawski v. Murawski

• Decision Date: 01 March 1948
• Citation: 209 S.W.2d 262,240 Mo.App. 533
• Parties: Pauline J. Murawski, Appellant, v. Edward R. Murawski, Respondent
• Court: Kansas Court of Appeals

209 S.W.2d 262

240 Mo.App. 533

Pauline J. Murawski, Appellant, v. Edward R. Murawski, Respondent

Court of Appeals of Missouri, Kansas City

March 1, 1948

Appeal from Circuit Court of Jackson County; Hon. Allen C. Southern Judge.

Judgment Affirmed.

Walter W. Calvin and Henry L. Jost, Jr., for appellant.

(1) The real estate in question, having been acquired, during coverture, by and in the name of the respondent and the appellant, as husband and wife, the respondent unquestionably, became seized of an estate of inheritance therein; and, therefore, the court erred in holding, as in effect it did, that the appellant had no right of dower in the respondent's undivided one-half interest therein. Section 318, Revised Statutes of Missouri, 1939; American Jurisprudence, Volume 17, page 700, et seq. Vantage Mining Company v. Baker, 170 Mo.App. 457, 155 S.W. 466; Kober v. Kober, 324 Mo. 379, 23 S.W. 2d 149; In re Bernays' Estate, 344 Mo. 135, 126 S.W. 2d 209 122 A. L. R. 169. (2) Appellant, by obtaining a decree of divorce from the respondent, for his fault or misconduct, did not, thereby, lose her right of dower in his undivided one-half interest in the real estate in question, because upon the granting of such decree, he immediately became seized of an estate of inheritance therein; and, for that reason, the court erred in holding, as in effect it did, that the appellant had no right of dower therein. Section 331, Revised Statutes of Missouri, 1939; Arnold v. Arnold, (Mo.) 222 S.W. 996; Crenshaw v. Crenshaw, 276 Mo. 471, 208 S.W. 249; North v. North, 339 Mo. 1226, 100 S.W. 2d 582, 109 A. L. R. 1061. (3) The court erred in holding, that by reason of her having instituted said action in partition, she thereby lost, or waived, her right to assert her dower interest in the respondent's undivided one-half interest therein. Section 331, Revised Statutes of Missouri, 1939; Lientz v. Schotte, 295 Mo. 333, 243 S.W. 890. (4) Dower, being favored by the law, as a reward for chastity, the courts should exercise an astute and vigilant attitude in preserving the same, and no construction or interpretation of a statute should be adopted to shear a widow of her right to dower, or any beneficent provision granted in the place thereof; and, the court by its assuming, as it did, an antagonistic attitude against the appellant's right of dower, committed prejudicial and reversible error. Donaldson v. Donaldson, 249 Mo. 228, 155 S.W. 791; Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825; Chrisman v. Linderman, 202 Mo. 603, 100 S.W. 1090, 10 L. R. A. (N. S.) 120; 40 Am. Juris. Sec. 127, p. 108; 47 C. J. Sec. 536, p. 485.

Rufus Burrus for respondent.

(1) No issue of dower was tendered by plaintiff in her petition, nor by defendant in his answer; therefore, the trial court, and this Court on appeal, cannot consider that issue. Mo. R. S. A., Sec. 1081, 1082 and 1083; Utterback v. New York Life Ins. Co., 191 S.W. 2d 421, l. c. 428; Weiner v. Mutual Life Ins. Co., 179 S.W. 2d 39, l. c. 41; Vermillion v. Prudential Ins. Co. of America, 93 S.W. 2d 45, l. c. 50; Moore v. Dawson, 277 S.W. 58, l. c. 61. (2) If the plaintiff had any dower interest which she then wished to claim, she could and should have so stated. Mo. R. S. A., Sec. 1709. (3) Having failed to allege any dower interest in addition to her tenancy in common, plaintiff was barred thereafter to make a claim therefor. Mo. R. S. A., Sec. 1750. (4) A wife who secured a divorce from her husband for his wrong has no dower to property which she and her former husband held as an estate by the entirety prior to the divorce. Joerger v. Joerger, 193 Mo. 133; Russell v. Russell, 122 Mo. 235.

OPINION

Cave, P. J.

This is an action to partition certain real estate. Plaintiff (appellant) alleged that she and the defendant were the owners, as tenants in common, of Lot 45, Westbrook Plaza, Kansas City, which was subject to a certain deed of trust therein described; that the real estate was not susceptible of partition in kind and prayed that the same be sold, the balance due on the deed of trust be paid, and the net proceeds be divided between plaintiff and defendant according to their respective interests. Defendant's answer admitted all the allegations in plaintiff's petition and joined in the prayer that the real estate be sold and the proceeds divided between the parties.

The court found that plaintiff and defendant were tenants in common; entered interlocutory decree of partition; ordered the lot sold, subject to the mortgage lien, and appointed a special commissioner to make said sale and to report the same to the court.

After this interlocutory decree was entered, plaintiff filed a motion to set the same aside for the reason that at the time the lot was purchased plaintiff and defendant were husband and wife and the title to the same was taken in their joint names, "thereby creating a tenancy by the entirety"; that on October 10, 1945, plaintiff was awarded a decree of divorce from the defendant because of his fault or misconduct, and alleges that since the divorce was granted her because of the fault or misconduct of her husband, she has inchoate right of dower in his undivided one-half interest in the real estate here involved; that the court had erred in failing and neglecting to ascertain and declare her dower interest in the husband's undivided one-half interest at the time of the interlocutory decree.

The court overruled that motion and she perfected her appeal to the Supreme Court. That court transferred the cause here for lack of jurisdiction. Murawski v. Murawski, 203 S.W.2d 714.

Plaintiff contends that the court erred in holding that she did not have inchoate right of dower in defendant's interest in the property, while defendant asserts that such ruling is correct. There are other questions urged and discussed, but they all revolve around the vital question whether the plaintiff, at any time, had dower interest in the property, the title to which was held by her and her husband as tenants by the entirety. There are no disputed facts.

It is conceded the effect of the divorce decree was to destroy the tenancy by entirety and to vest in each of the parties title to the property as tenants in common. Sec. 331, R. S. 1939; Murawski v. Murawski, supra; Joerger v. Joerger, 193 Mo. 133; Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49, l. c. 55, and cases there cited. The question is, did the wife, at any time, have an inchoate right of dower in the property?

By Sec. 318, dower attaches to certain property. The material part of that section reads: "Every widow shall be endowed of a third part of all the lands whereof her husband * * * was seized of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished her right of dower, * * *". (Italics ours). The term "estate of inheritance" has an accepted and settled meaning in law. It means an estate that will descend to a man's heirs by the simple operation of law, and it may be an absolute or fee-simple estate; it does not include an estate for the life of the husband, or other lesser estates. Casteel v. Potter, 176 Mo. 76.

An inchoate right of dower prior to the death of the husband is a contingent right, and in no sense vested, but a mere expectancy or possibility incident to the marriage relationship contingent on survival. First National Bank v. Kirby, 269 Mo. 285. While inchoate dower is contingent and uncertain, nevertheless, it possesses the elements of property and a wife may maintain an action for its protection. Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149.

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