Null v. Howell

• Citation: 111 Mo. 273,20 S.W. 24
• Court: United States State Supreme Court of Missouri
• Decision Date: 01 July 1892
• Parties: NULL <I>et al.</I> v. HOWELL.

20 S.W. 24

111 Mo. 273

NULL et al. v. HOWELL.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

DOWER — ASSIGNMENT — LIMITATIONS — ADVERSE POSSESSION.

1. Possession by a widow of the mansion house of her husband, and her unassigned right of dower, do not prevent the heir from being seised of the property so that his widow should acquire dower therein.

2. An action for the assignment of dower, being an action for the recovery of real estate, is not barred unless the land has been in the adverse possession of another for 10 years.

3. A widow's possession of her husband's mansion house pending assignment of her dower is not adverse to the heir or the heir's widow.

Appeal from circuit court, Lincoln county; E. M. HUGHES, Judge.

Action by Isabella Null and her husband against J. W. Howell for assignment of dower. Judgment for defendant. Plaintiffs appeal. Reversed.

W. H. Kennan, for appellants. Martin & Avery, for respondent.

MACFARLANE, J.

Action for assignment of dower in certain lands in Lincoln county, and for damages. Answer, general denial, and statutes of limitation. On the trial it was agreed that James Y. Howell, Sr., died in 1861, seised in fee of the lands in dispute, and in the actual possession thereof, leaving his widow, Louisa Howell, and two children, James Y. Howell, Jr., and defendant, J. W. Howell, surviving him. The widow and children continued the occupancy of this land and the residence thereon after the death of the husband and father. Dower was never assigned to the widow. In March, 1876, James Y. Howell, Jr., married plaintiff, and she and her husband lived together until his death, May 2, 1878. The widow of James Y. Howell, Sr., died March 2, 1889. Defendant has been in the exclusive possession since her death. Plaintiff was married to C. M. Null, May 22, 1879, and has never relinquished her dower in said land. Upon this state of facts the court gave a declaration of law to the effect that under the pleadings and the agreed facts plaintiffs are not entitled to recover.

Counsel have argued but two points, and are agreed on all other legal propositions. It is agreed that James Y. Howell, Jr., inherited from his father an undivided one half the land in dispute, subject to the rights of the widow of his father. Defendant insists — First, that James Y. Howell, Jr., never, during his marriage with plaintiff, had such seisin in the land as invested her with a right of dower therein; and, second, if he had such seisin, that plaintiff's right of action accrued upon the death of her husband, James Y. Howell, Jr., May 2, 1878, and when this suit was commenced her right of action was barred by limitation.

1. The first question for consideration is whether the intervening quarantine and dower rights of the widow of James Y. Howell, Sr., prevented the seisin of his heir at law, the husband of plaintiff. We think not. The rule at common law is that the husband must be vested with the freehold and inheritance "at once and together," in order that the dower right of the widow should attach. Hence there could be no dower in lands assigned as dower. The interposition of the life estate of the widow would prevent the necessary seisin of the husband. 1 Scrib. Dower, (2d Ed.) p. 233, § 10; Id. p. 324; 5 Amer. & Eng. Enc. Law, 893; Warren v. Williams, 25 Mo. App. 23. If, therefore, the dower of the widow of Howell, Sr., had been assigned before plaintiff married Howell, Jr., then plaintiff would have taken no dower in the land so assigned, but she would have been entitled to dower in the lands remaining after the assignment. An intervening estate less than a freehold — such as estates for years — are mere chattel interests, and do not prevent the seisin of the husband, and the wife will be endowed of the lands held by another under such interests. 1 Scrib. Dower, p. 233, § 11. "If there be no assignment of dower to the ancestor's widow, the seisin or estate in possession which descended upon the heir is not defeated to any extent, and consequently his widow is entitled to dower in the entire premises." Id. p. 326. The right of the widow "to remain in and enjoy" the mansion house of her husband and "the plantation thereto belonging" barely reaches the dignity of a tenancy at will. BLISS, J., in speaking of such an interest, says: "It can hardly be called an estate,...