Perry v. Perryman

• Decision Date: 31 March 1854
• Citation: 19 Mo. 469
• Parties: PERRY et al., Respondents, v. PERRYMAN et al., Appellants.
• Court: Missouri Supreme Court

19 Mo. 469

PERRY et al., Respondents,

v.PERRYMAN et al., Appellants.

Supreme Court of Missouri.

March Term, 1854.

1. Under the 13th section of the act concerning dower (R. C. 1845) a settlement, whether ante-nuptial or post-nuptial, to be a bar to dower, must be expressed on its face to be in discharge of dower.

Appeal from St. Louis Land Court.

M. Frissell, for appellants.

The deed of April 8, 1835, was a good jointure, and is a bar to the widow's dower, under the last clause of the 12th section of the act concerning dower (R. C. 1845). It is in the very words of the statute, unless it is necessary that the words “for the jointure of the wife” should be inserted in the deed. In the absence of these words, or words of similar import, in the deed, it may be alleged in the pleading, and proved at the trial, that the estate was, and was intended as a jointure, and to bar dower, as was done in this case. Vernon's case, 4 Mo. 1; Villars v. Beaumont, 2 Deyer, 146; Clancy on Rights, 212. The answer which was stricken out averred that Mrs. Perry had elected to take the provision by way of jointure. R. C. 1845, sec. 11. Any act which shows an intention to hold one estate in preference to the other, is an election.

C. D. Drake, with R. M. Field, for respondents.

Three questions arise. 1. As John Perry died childless, and his widow claims to be entitled to one-half of his estate absolutely, is that one-half to be regarded as dower? This involves the construction to be given to sections 3, 5 and 6, of the act concerning dower (R. C. 1845). It is contended that the provision made by section 3 is not dower but is in the nature of a rule of descent. Hinnershits v. Bernard's Executors, 13 Penn. State Rep. 518. 2. Supposing the “provision” contained in said third section to be dower, what effect is to be given to the deed? This is to be determined by the act of 1825, concerning dower. Section 5 of that act is, in effect, and almost in words, a re-enactment of a portion of sec. 6 of ch. 10 of the act of 27 Henry VIII., which was the origin of the modern jointure, and has been the subject of repeated adjudications. There can be no doubt that our legislature used the word “jointure,” in its established legal sense. Vance v. Vance, 21 Maine, 364. It is well settled, that no conveyance to or for the benefit of the wife shall operate as a jointure, to bar her dower in the other real estate of her husband, unless the estate limited to the wife be expressed or averred to be in satisfaction of her whole dower. And it must be so expressed in the instrument settling it, or it must appear by necessary implication from the contents of the instrument. 2 Blackstone, 137; 1 Greenleaf's Cruise, 216; 2 Flintoff on Real Prop. 197; 2 Crab on Real Prop. § 1220; 1 Stephen's Comm. 256; 1 Roper on Husb. and Wife, 465-6; 1 Hilliard on Real Prop. 187; Pearson v. Pearson, 1 Brown's Chan. Cases, 259: Adsit v. Adsit, 2 J. C. R. 448; 4 J. C. R. 9. Gordon v. Stevens, 2 Hill's Ch. Rep. 46. 3. In the absence of any thing in the terms of the deed, expressing or implying that it is made by way of jointure, can an intention that it should have that effect be established by parol evidence? Prior to the statute of Frauds and Perjuries (29 Charles II., ch. 3,) it was held in the affirmative in England, in two cases. But after the passage of that act, such evidence was held inadmissible, because it would have the effect of allowing a surrender of the wife's freehold title to dower, by parol, when the statute required such surrender to be in writing. 1 Roper on Husband and Wife, 466-7; Tinney v. Tinney, 3 Atkyns 8; 1 Bright on Hub. and Wife, 442-3. This view applies with force under our statute, which endows a widow of the third part of her husband's lands, to which she shall not have relinquished her right of dower in the manner prescribed by law; that is, by deed, in which she shall join her husband, and acknowledge that she relinquishes her dower. See also Swaine v. Perrine, 5 J. C. R. 482, 490.

SCOTT, Judge, delivered the opinion of the court.

This is a suit for the partition of the real estate of John Perry, deceased, begun by the respondents, Eliza M. Perry and others, his widow and a portion of his heirs, against the appellants, John T. Perry and others, heirs, and the representatives of the interest of the heirs of the deceased. John Perry died on the 4th day of September, 1850, without children, leaving the plaintiff, Eliza M. Perry his widow, who claims, as her dower in the real estate sought to be divided, one undivided half of it, absolutely.

The defendants by way of answer to the claim of the plaintiff, Eliza M. Perry, for dower in the premises sought to be divided, set up the fact, that on the 8th day of April, 1835, John Perry during his marriage with the plaintiff, his widow, settled upon her, as a jointure, a lot in the city of St. Louis, worth $1736, on which he afterwards expended upwards of $12,000 in lasting improvements; that this settlement, at its date, was a reasonable share of the estate of the said Perry, both real and personal, after deducting his debts; that from the time the settlement was made. Eliza M. Perry held the lot for her separate use, and enjoyed the rents and profits thereof until the death of her husband, and since his death, has been in possession of the same, and during the year 1850, after the decease of John Perry, she directed the trustees, under the settlement, to convey the lot to her and her heirs, which was accordingly done, whereby it is alleged she elected to hold the said jointure in lieu of a dower. The settlement alluded to was effected by a conveyance from J. B. C. Lucas to Jesse G. Lindell, Augustus Kerr and Beverly Allen, and to the survivors and survivor, of them and his heirs, in trust for...