Pemberton v. Pemberton

• Decision Date: 31 January 1860
• Citation: 29 Mo. 408
• Parties: PEMBERTON, Plaintiff in Error, v. PEMBERTON et al., Defendants in Error.
• Court: Missouri Supreme Court

29 Mo. 408

PEMBERTON, Plaintiff in Error,

v.PEMBERTON et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1860.

1. A bequest of personal property by a husband to his wife would be no bar under the tenth section of the dower act of 1845, (R. C. 1845, p. 431), to her right of dower in the real estate of the husband.

2. Whether such a bequest would, if accepted, be a bar to the widow's right of dower in the residue of the personal estate must depend upon the intent and meaning of the will of the husband. If it is manifest from a fair construction of the will that the testator intended the bequest to be in lieu of dower, the widow must make her election; she can not accept the bequest and also claim dower as allowed by law.

3. If a husband bequeaths to his widow a slave belonging to his children by a former marriage, and makes those children his residuary legatees, they will be put to their election, either to relinquish the slave or to renounce the legacies; they can not take both under and against the will.

Error to Callaway Circuit Court.

In 1853 Edmund Pemberton, the husband of Jane Pemberton, the plaintiff, died, having made a will, which substantially is as follows: “Know all men, &c., that I, Edmund Pemberton, of, &c., do this 29th day of April, 1853, make my last will and testament as follows: First, my funeral expenses and all my just debts to be paid; second, I will and bequeath to my wife Jane Pemberton a certain portion of my land, commencing, &c., [describing a tract of about eighty-six acres, including the dwelling house,] to belong to her with all the appurtenances thereunto belonging during her natural life or widowhood, and then to belong to my three youngest children William R. Pemberton, Thomas M. Pemberton, Franklin P. Pemberton; thirdly, I also will my wife the household and kitchen furniture, with the exception of three beds, bedsteads and furniture; fourthly, one dun mare and colt, and one bay mule; fifthly, two cows and calf; sixthly, twenty head of hogs; she is to select them from the lot of hogs; seventhly, she is also to have fifteen head of sheep; she is to select them from my flock; eighthly, she is also to have my small wagon and harness; ninthly, she is also to have two diamond plows, one a two-horse plow, the other a one-horse plow, and two hoes; tenthly, she is also to have all the wheat that is cleared out and boxed up; eleventhly, I also will my wife Jane Pemberton my negro boy Lewis; twelfthly, all the corn that is in the crib at this time is to be used by and for the benefit of the family that remains on the farm the present year. The above named negro boy is at the death or marriage of my wife Jane Pemberton to belong to my three youngest children as the land. The above named beds are to be good feather beds, good bedsteads and furniture. The above named beds I will and bequeath, one to my son James R. Pemberton, one to my son Edmund P. Pemberton, one to my son Joseph H. Pemberton. All the produce that is raised on the farm the present year I will one-half to my wife Jane Pemberton, the other half to be equally divided between Edmund P. Pemberton and Joseph H. Pemberton. All the tobacco on hand, negroes, land, and all the property not heretofore named is to be sold at public auction, the proceeds thereof first to pay all my just debts, the balance to be equally divided between my six oldest children, John Q. Pemberton, James R. Pemberton, Edmund P. Pemberton, Joseph H. Pemberton, Martha A. Gilbert, Mary Bradley; and lastly, by these presents, I appoint my son Edmund P. Pemberton my whole and sole executor,” &c.

The widow Jane Pemberton seeks in the present suit to have dower assigned her in the proceeds of certain slaves, Abigail, Rachel, Sanders, and Martha, that had been sold by the executor of the will of said Edmund Pemberton. The defendants are the six oldest children of said Edmund Pemberton, being his children by a former marriage. They in their answer set up that said slaves belonged to them by virtue of a gift from their grandfather Nehemiah Hendley, the father of Edmund Pemberton's first wife, who, it is alleged, gave said slaves to his daughter Susan Pemberton for life with remainder to her children. Defendants also claim said slaves under the will of Edmund Pemberton. After the death of said E. Pemberton, the defendants recovered possession by suit of said slave Lewis from the widow Jane Pemberton, on the ground that said slave belonged to them under the gift of their grandfather and not to their father.

This cause was tried by the court without a jury; the court found for the defendants, holding the plaintiff barred of dower in the personalty by her election to take under the provisions of the will and her acceptance of the property devised to her.Jones & Hayden, for plaintiff in error.

I. The devise of the real estate and the several bequests of personal property and the slave Lewis do not bar the widow of dower in the personal estate. Such provisions, although accepted, do not preclude her from claiming dower in the personal estate. (2 Story Eq. § 1088; 1 White & Tud. L. Cas. 311; Co. Litt. 176, b.; 16 Mo. 242; 21 Mo. 519; 24 Mo. 176; 23 Mo. 398; 5 Mo. 183; 18 Mo. 389; 19 Mo. 469; 9 Mo. 10; 2 Sch. & Lef. 452; 8 Paige, 325; 5 Paige, 597; 5 Dana, 345; Riley's Ch. 205; 2 Yeates, 433; 4 Johns. Ch. 9; 10 Paige, 366; 1 Sandf. 325; 5 Hill, 206; 2 Denio, 430; 2 Hill, Ch. 46; 1 Speers' Eq. 322; 5 Dana, 345; Saxt. Ch. 217; 4 Hen. & Mun. 23; 4 Dess. 274; 1 Benn. 565; 4 Dall. 415; 3 Yeates, 10.)

II. If such devise and bequests bar her dower in the personal estate, she is entitled, in the case of the failure of the title to the slave Lewis, to have the deficiency made up out of the personal estate. (4 Kent Com. 54, 55; Plowden, 525; Litt. Sec. 287; Co. Litt. 185, b.; Perkins, § 526; Doctor & Student, 1, 2, 126, 300; 3 Co. 29, a.)

Ansell, for defendants in error.

I. The widow was barred of a right to dower in the personalty. She was put to her election. She can not claim under and against the will. (See 2 Story Eq. p. 440; 3 Yeates, 10; 7 Cow. 287; 3 Fairf. 138; 8 Gratt. 83; Addis. 350; 2 Yeates, 302; 27 Engl. L. & Eq. 154; 1 Den. & War. 94; 4 Monr. 265; 5 Monr. 58; 4 Dess. 146; 2 McCord Ch. 280; 7 Cranch, 370; 5 Call, 481; 1 Edw. 535; 3 Russ. 192; 2 Dana, 343.) The second instruction asked was properly refused. The petition does not allege any partial failure of the provision made for the widow in the will. There is nothing said about the slave Lewis in the petition.

SCOTT, Judge, delivered the opinion of the court.

This is a suit for the assignment of dower under the dower law of the code of 1845. The testator having devised both real and personal estate to his wife, the question arises whether that devise, if accepted, bars the widow's right to dower in both the real and personal estate. The tenth section of the dower act of the code of 1845, and which is continued in the present code, provides, if any testator by will shall pass any real estate to his wife, such devise shall be in lieu of dower out of the real estate of her husband whereof he died seized, unless the testator, by his will, otherwise declare. In the case of Halbert v. Halbert, 19 Mo. 453, it was held that the bequest of a slave to a wife, under the section just referred to, did not bar her dower in the real estate. The spirit of this decision is that the tenth section of the act relates to dower in the real estate only, and does not affect the wife's dower in the personalty. We are of the opinion that this is the obvious intention of the act, and that the section was designed only to extend to real estate, and left the...