Phillips v. Presson

• Decision Date: 18 February 1903
• Citation: 72 S.W. 501,172 Mo. 24
• Parties: PHILLIPS et al. v. PRESSON et al.
• Court: Missouri Supreme Court

72 S.W. 501

172 Mo. 24

PHILLIPS et al. v. PRESSON et al.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

DECEDENT'S ESTATE—WIDOW'S QUARANTINE — UNASSIGNED DOWER — ASSIGNABILITY — HOMESTEAD—RIGHTS OF MINOR HEIRS.

1. A widow's right to quarantine is a possessory right, which may be assigned, and on which an action of ejectment may be defended.

2. Under the express provisions of Rev. St. 1899, § 2934, a widow's right to unassigned dower is alienable.

3. Under Rev. St. 1899, § 3620, providing that, on the decease of the owner of a homestead, his widow and minor children are entitled to the possession of the premises until the youngest attains his majority, the right of infant heirs to the occupation of a homestead cannot be defeated by the alienation by the widow of her quarantine, dower, and homestead rights.

Appeal from circuit court, Mississippi county; H. C. Riley, Judge.

Action by Ora Phillips and others against D. C. Presson and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

R. B. Oliver and Russell & Deal, for appellants. W. H. Miller and W. C. Russell, for respondents.

BRACE, P. J.

This is an action in ejectment to recover the possession of the E. ½ of the N. W. ¼ of section 9, township 25, range 15, in Mississippi county. The petition is in common form; the answer, a general denial. The trial was before the court without a jury, on an agreed statement of facts. Judgment for the plaintiffs, and defendants appeal.

The plaintiffs are the minor children of J. J. Phillips, deceased, who died seised of the premises, which were his homestead. The defendants are in possession of the premises, holding the same under a deed from Mrs. Martha Phillips, the widow of said deceased, whose dower has never been assigned to her, conveying to them all her interest therein; and the only question in the case is, which party has the better right to the possession of the premises? On the death of her husband, Mrs. Phillips became invested with three cognate rights in and to the premises —the rights of quarantine, of dower, and of homestead. Rev. St. 1899, §§ 2933, 2954, 3620. Her quarantine gave her the right to the possession of the premises until her dower therein was assigned her. Section 2954, supra. At common law, and in many of the states, the right of quarantine is not assignable. 10 Am. & Eng. Encyl. of Law (2d Ed.) p. 148, and notes. And such is also the case with the right of unassigned dower. Id. p. 147, and notes. But by a long and uniform line of decisions in this state the doctrine is well established that a widow's right of quarantine is a possessory right, on which an action of ejectment may be maintained or defended, and that this right is assignable, and carries with it all the incidents that belonged to it prior to the transfer. Stokes v. McAllister, 2 Mo. 163; Jones v. Manly, 58 Mo. 559; State v. Moore, 61 Mo. 276; Brown v. Moore, 74 Mo. 633; Gentry v. Gentry, 122 Mo. 202, 26 S. W. 1090; Fisher v. Siekum, 125 Mo. 165, 28 S. W. 435; Carey v. West, 139 Mo. 146-176, 40 S. W. 661. And since 1889, by express statutory provision, the widow's right to unassigned dower is also alienable. Rev. St. 1899, § 2934; Rev. St. 1889, § 4514. So that the defendants, by their deed from Mrs. Phillips, acquired all her quarantine and dower rights in the premises, stand in her shoes, and sustain the same relations to this property that she did before the transfer was made. And if the plaintiffs had...