Register v. Hensley

• Decision Date: 31 October 1879
• Citation: 70 Mo. 189
• Parties: REGISTER et al., Appellants, v. HENSLEY.
• Court: Missouri Supreme Court

70 Mo. 189

REGISTER et al., Appellants,

v.HENSLEY.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GBUBB, Judge.

AFFIRMED.

Allen H. Vories for appellants.

1. The devise to Mrs. Register was in lieu of dower, as the will did not otherwise provide. Wag. Stat., § 16, p. 541. The will vested in her a life estate until she availed herself of the provisions of the 16th section and renounced the devise in her favor. This could only be done by an election in writing. Hence, she held under the will until her renunciation was made, and had not the election been made, she would have continued to hold a life estate in the land in controversy. The will created the interest in the land, and it required her election to change that interest or the nature of the estate. This election was not made and declared until August, 1875. Her husband died in October, 1874. Under the amendment of the homestead act which had taken place in the interval, (March 18th, 1875,) the widow took a homestead for life only, instead of one in fee. But as it required the election to vest in her the homestead estate, and such election creating an interest different from or other than the devise, no interest could pass until the election was made, which determined the character of the estate. Hence, the law of 1875, being in force at the date of Mrs. Register's election, is the law by which her homestead is governed, instead of the law in force when her husband died. Hamilton v. O'Niel, 9 Mo. 11; United States v. Grundy, 3 Cranch 337; 1 Coke on Littleton, p. 523; Matney v. Graham, 50 Mo. 564; Welch v. Anderson, 28 Mo. 298.

2. By her election Mrs. Register renounced all the provisions of the will in her favor, both land and personal property. But prior to that time she had elected to take under the will, and had received of the personal property $400 worth, which she continued to hold as her own, and never offered to return. She cannot hold a part and renounce the balance. If the widow renounce the will, she must restore what she has received under it. 2 Story Eq. Juris., §§ 1077, 1088 to 1097. In Bretz v. Matney, 60 Mo. 444, the widow had not received any part of the legacy or done any act inconsistent with her right to renounce, by which any one had been or could have been injured. Newman v. Hook, 37 Mo. 207; Rutherford v. Tracy, 48 Mo. 325; Moreman v. Talbot. 55 Mo. 392; Watson v. Watson, 28 Mo. 302.

Silas Woodson and Thomas & Tyler for respondents.

The law in force at the death of Francis Register vested in his widow an absolute title in fee. Skouten v. Wood, 57 Mo. 399; Gragg v. Gragg, 65 Mo. 346; Brown v. Brown, 68 Mo. 388. Her right to a homestead did not grow out of her renunciation of the will, but existed prior to such renunciation, by virtue of law, as an incident to the marriage contract. Burke v. Barron, 8 Iowa 134; Russele v. Rumsey, 35 Ill. 374. When the will was admitted to probate the widow had the undoubted right to reject its provisions in her favor and take a fee simple title to the land in controversy under the law, or accept its provisions for her benefit and take a life estate under the will. Not only this, but she had by statute twelve months in which to fully advise herself as to what her rights were under the law. The appellants contend that she lost these rights, not by any act of omission or commission on her part, but by virtue of a statute subsequently passed, within the twelve months, and that this subsequent statute took away the right of election by giving the widow the same estate in the lands that the will gave her. This is beyond the legislative power. Riddick v. Walsh, 15 Mo. 537; Kennerly v. Mo. Ins. Co., 11 Mo. 209.

2. The personal property devised to the widow and delivered to her, did not exceed in value $400; and upon the renunciation of the will this property remained absolutely hers. The renunciation did not change in any respect her right or title to the personalty, which was as absolute under the law as under the will. It simply changed the source from whence she derived that title; hence the law does not require the nugatory act of returning the property to the administrator and then receiving it back from him. The right to it was absolute and vested in her immediately upon the death of her husband. Hastings v. Myers, 21 Mo. 519; Bryant v. McCune, 49 Mo. 546.

NORTON, J.

This was an action of ejectment to recover from defendants a tract of land in Buchanan county, in the State of Missouri. The petition is in the usual form. Defendants answered, putting in a general denial. The case was tried on an agreed statement of facts, which is as follows:

That prior to October, 1874, Francis Register was the owner in fee simple of the land in controversy, and lived on the same, having his dwelling house there; that prior to that time he had married one Matilda Hensley, who survived him as his widow; that in October, 1874, said Register died, leaving plaintiffs, who were adults and married, as his only children by a former wife; that said deceased left a will, by which he devised to his wife, Matilda, for and during her natural life, the land in controversy; also, as her absolute property, a large amount of personal property worth $400, and all the balance of his property he devised to plaintiffs; that in the month of October, 1874, said will was duly proved up, and letters of administration, with the will annexed, were granted by the probate court of the proper county in October, 1874, to one John C. Register; that the personal property under the will, which was devised to his wife, was immediately turned over to her, and which she never returned or offered to return to the administrator, or any one else; that in August, 1875, said widow, in due form of law, executed an instrument in writing, which was filed in the probate court of Buchanan county, in which court said letters had issued, renouncing all the provisions of said will in her favor; that in August, 1875, after such renunciation, she petitioned the probate court of Buchanan county, aforesaid, to set apart her homestead and dower in the real estate of her husband; that her husband had died seized and possessed of 240 acres of land in said ...