Overfield v. Overfield

• Decision Date: 04 September 1930
• Docket Number: No. 28199.,28199.
• Citation: 30 S.W.2d 1073
• Parties: ELIZABETH OVERFIELD, Appellant, v. GEORGE OVERFIELD ET AL.
• Court: Missouri Supreme Court

30 S.W.2d 1073

ELIZABETH OVERFIELD, Appellant, v. GEORGE OVERFIELD ET AL.

No. 28199.

Supreme Court of Missouri. Division One.

September 4, 1930.

Appeal from Scotland Circuit Court. — Hon. James A. Cooley, Special Judge.

REVERSED AND REMANDED (with directions).

Hudson V. Smoot and John B. Smoot for appellant.

(1) Under the Homestead Act of 1865, and in force when the husband died, the widow took an estate in fee simple to the extent of a homestead. Wagner's Statutes, sec. 5, p. 698; Skouter v. Wood, 57 Mo. 38; Davidson v. Davis, 86 Mo. 440; Burgess v. Bowles, 99 Mo. 543; Van Sycker v. Beam, 110 Mo. 589. (2) Under the administration acts in force when the husband died, the widow, in addition to the property and allowance provided by Sections 33 and 34, Wagner's Statutes, page 88, was entitled to other personal property not exceeding the appraised value of $400. (3) The personal property given the widow by Sections 33, 34 and 35, Wagner's Statutes, page 88, goes to her absolutely, and the husband has no power to dispose of it by will. Hasenritter v. Hasenritter, 77 Mo. 223. (4) The doctrine of election has no application where the property received by the widow under the will is not greater than she would have the right to take under the homestead and administration laws in force at the time of her husband's death. Burgess v. Bowles, 99 Mo. 543, 548; Stoepler v. Silberberg, 220 Mo. 258; In re Goessling's Estate, 230 S.W. 618. (5) If there is no property on which the will would operate as against a widow's absolute statutory rights, there would be no consideration for an election by her, and the reason on which the doctrine of election rests would fail. No formal renunciation of the will would be necessary in such case to confirm her title to the property which the law itself gave her. Hasenritter v. Hasenritter, 77 Mo. 162; Stoepler v. Silberberg, 220 Mo. 258; Burgess v. Bowles, 99 Mo. 543. (6) Under the Homestead Act of 1865 defining the homestead as consisting of a dwelling house and appurtenances and the lands used in connection therewith, it is not necessary that the lands be contiguous or physically connected so long as they be used in connection with the dwelling and its appurtenances. Haggard v. Haggard (Mo. Sup.), 233 S.W. 18.

C.C. Fogle for respondent.

SEDDON, C.

Action for the ascertainment and determination of title to 140 acres of real estate in Scotland County, Missouri, described as the southeast quarter of the southeast quarter of section 9; the northwest quarter of the southeast quarter, and the east three-eighths of the southwest quarter of section 16, all in township 66, range 11, west of the fifth principal meridian.

Plaintiff (appellant), Elizabeth Overfield, is the widow of Franklin T. Overfield, Sr., who died testate in the month of July, 1868. Franklin T. Overfield, Sr., at the time of his death, was the owner in fee simple of the above described lands, comprising 140 acres in area, upon which lands he and his wife, the plaintiff herein, resided, with their minor children, at and prior to the time of the death of Franklin T. Overfield, Sr. The defendants (respondents) are the children, and the heirs and devisees of deceased children, of said Franklin T. Overfield, Sr., who was the common source of title.

The petition is conventional in form, and alleges that plaintiff is the absolute owner of the fee simple title in and to the described lands; that the defendants claim and assert some right, title, claim, or interest therein; wherefore, plaintiff prays that the titles, estates and interests of the plaintiff and the defendants, respectively, in and to said real estate be ascertained, determined, defined and adjudged by the court.

Certain of the defendants filed separate answers, alleging, in substance, that defendants are the owners, in fee simple, of undivided interests in and to the described lands, subject, however, to the life estate of plaintiff therein, and that plaintiff, by her acts and conduct in the administration of the estate of her deceased husband, had elected to take and accept the provisions in her behalf made by the will of her deceased husband, under the provisions of which will plaintiff was entitled to a life estate only in the described lands.

Plaintiff, by her reply to the separate answers of defendants, alleges that the provisions in her behalf made by the will of her deceased husband were less in amount and value than the amount and value of property, real and personal, allowed to plaintiff, as the widow of the said Franklin T. Overfield, Sr., by the homestead and administration laws of Missouri in force and effect at the time of the death of her husband, Franklin T. Overfield, Sr., and alleges that the described lands, constituting the statutory homestead of Franklin T. Overfield, Sr., passed to, and vested in, plaintiff and became her absolute property in fee simple, and that plaintiff is the absolute and sole owner thereof, and that defendants, or any of them, have no right, title, or interest therein.

It was expressly agreed and stipulated in writing by the parties, upon the trial, that Franklin T. Overfield, Sr., acquired and was seized of the fee simple title to the 140 acres of land in controversy by virtue of a warranty deed from Nicholas Arthurs and wife, dated April 25, 1865, the expressed consideration of said warranty deed being $1900; that the said Franklin T. Overfield, Sr., made and published his last will and testament on July 10, 1868, wherein he devised and bequeathed to his wife, Elizabeth Overfield (the plaintiff herein), for and during her life, all the property, real and personal, that testator owned and possessed, it being furthermore provided in said will that, at the death of the wife, the real property of testator shall be equally divided among the heirs of testator, and wherein Elizabeth Overfield was nominated as the sole executrix of said will; that said Franklin T. Overfield, Sr., died on the ____ day of July, 1868, a resident of Scotland County, "seized of the fee simple title to the said real property, which was all of the real property that he owned at the time of his death, and upon which he, the said Franklin T. Overfield, Sr., and the plaintiff herein, Elizabeth Overfield, as husband and wife, then resided and made their home, of which lands there were 140 acres, more or less;" that the last will and testament of Franklin T. Overfield, Sr., was duly admitted to probate in the County Court of Scotland County on August 1, 1868; and that Elizabeth Overfield was duly appointed executrix of said will on March 3, 1869, by the County Court of Scotland County, in accordance with the provisions of said will.

The evidence discloses that the lands in controversy comprise two separate and segregated tracts, forty acres thereof being situate in Section 9, Township 66, Range 11, and the remaining 100 acres thereof being situate in Section 16, Township 66, Range 11. The 40-acre tract is some three-fourths of a mile distant from the 100-acre tract. At the time of the death of Franklin T. Overfield, Sr. there was a small log house upon the 100-acre tract, which constituted the dwelling house of Franklin T. Overfield, Sr., his wife and minor children. The record before us contains the following express admission, made upon the trial of the action: "It is further admitted that the 40 acres of land described in the petition was (were) used in connection (with, and) as part of the whole 140 acres of land."

The evidence further shows that plaintiff, as the nominated executrix of the will of her deceased husband, Franklin T. Overfield, Sr., caused the will to be probated in the County Court of Scotland County; took charge of the personal property of decedent for the purpose of paying the debts against decedent's estate; and filed in the County Court of Scotland County an inventory of the estate, setting forth the real and personal property belonging to decedent at his death. No appraisement of the value of decedent's property, real or personal, was made in the course of administration of said estate, nor does the record herein disclose that plaintiff, as executrix, made final settlement of the administration of the estate of her deceased husband. The inventory of the estate, filed by plaintiff, as executrix, in the County Court of Scotland County, recites that the real property belonging to Franklin T. Overfield, Sr., at his death comprised the 140 acres of land in controversy, against which land there was an unsatisfied mortgage indebtedness of $309.32. The inventory recites that the personal estate of Franklin T. Overfield, Sr., consisted of two promissory notes in the principal sums of $40 and $50, respectively; two horses; two cows; three heifers: one steer; two calves; ten sheep; ten hogs; 34 fowls; 100 bushels of wheat; 190 bushels of oats; 50 bushels of corn; 500 pounds of salted pork; a few farming implements; and a small amount of household and kitchen furniture. The inventory listed the debts of Franklin T. Overfield, Sr., exclusive of the mortgage indebtedness aforementioned, as aggregating the principal sum of $289.75.

The uncontroverted evidence tends to show that the pecuniary value of the real estate of decedent, in the year 1868, was $5 to $10 per acre, and therefore the value of decedent's real estate, at the time of his death, did not exceed $1400. The uncontroverted evidence further tends to show that the pecuniary value of the personal estate of decedent, at the time of his death, in the year 1868, after deducting the unsecured debts against decedent's estate, was approximately $343.

It further appears from the uncontroverted evidence herein that plaintiff has remained in continuous occupancy and possession of the 140 acres of land in controversy, constituting the statutory homestead of her deceased husband, residing thereon and using the same until the commencement of the instant action, and that plaintiff has...