Schorr v. Etling

• Decision Date: 09 July 1894
• Citation: 27 S.W. 395
• Parties: SCHORR v. ETLING.
• Court: Missouri Supreme Court

27 S.W. 395

SCHORR v. ETLING.

Supreme Court of Missouri, Division No. 1.

July 9, 1894.

DOWER — ELECTION — CONSTRUCTION OF WILL.

1. Where a testator, after having made a will, giving his wife a life estate in certain real and personal and all his "mixed" property, acquires a homestead, the wife may take both the provisions made for her by the will and her homestead estate; as to require an election on her part in such case the testator's intention to exclude her homestead right must be manifest from the will.

2. A homestead will not pass under a clause of a will devising all the testator's "mixed" property, though it has not been disposed of in the will.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by Henry Schorr against Christian Etling. There was a judgment for plaintiff, and defendant appeals. Reversed.

This suit is ejectment to recover a certain lot in the city of St. Louis. The rights of the parties depend upon the construction of the will of Adam Schorr, deceased, and of the homestead law which was in force in 1872. The testator, by the first three clauses of his will, gives to his wife, Regina, three distinct parcels of land in St. Louis, describing each of them. By the fourth clause he gives her four shares of corporate stock "and all mixed property I may be possessed of at time of my death, and, after her death, all real, personal, and mixed property of whatever she, the said Regina Schorr, may be possessed of at the time, shall be equally divided between my next relations and her next relations or heirs; that is to say, after the payment of all just debts and funeral expenses." This will was dated May 20, 1861. The land in dispute was not specially devised under the will; in fact it was not acquired by the testator until 1866. The evidence tended to prove that after its acquisition it was used by the testator and his wife as a homestead until his death, which occurred in 1872, and was within the value and quantity allowed by law for a homestead. There were no children by the marriage of Schorr and wife, and no relatives of the wife are known. Plaintiff, who is the nephew and only heir at law of the testator, claims title under the will. Defendant claims under a deed from the widow, who died in 1885. The widow accepted the provisions made for her by the will. Under the evidence the court found for the plaintiff, and judgment was rendered accordingly, and defendant appealed.

John Johnston, for appellant. J. F. & J. E. Merryman, for respondent.

MACFARLANE, J. (after stating the facts).

This court, in a recent case involving the title to one of the parcels of land specifically devised, held that the will in question gave to the widow of the testator a life estate only in that land, with remainder to the heirs of himself and his wife, Regina. Schorr v. Carter, 25 S. W. 538. Plaintiff must recover also in this case if the life estate in this after-acquired property passed to the widow under the will. If, on the other hand, the title passed to the widow under the homestead law, then defendant must recover. The homestead law of 1865, which was in force at the death of the testator in 1872, gave to the widow a fee to the land occupied as a homestead by her deceased husband. Skouten v. Wood, 57 Mo. 383. Unless, then, Mrs. Schorr, by accepting the provisions of the will, defeated her right to homestead, she took an absolute title to the land in controversy by virtue of the homestead law; and defendant, claiming under a deed from her, is entitled to the possession. Under our statute, a devise of real estate is declared to be in lieu of dower unless a different intention is expressed by the testator. In such case the widow will not be endowed unless she shall renounce the provisions made for her by the will. Rev. St. §§ 4527, 4528. The homestead law of 1865 contains no such provisions, and that of 1875 in express terms excepts the estate of homestead from the laws relating to devises. At common law, a devise of real estate by a husband to his wife was held to be in addition to dower, unless from the terms of the will, expressed or necessarily implied, the intention to exclude the right of dower can be gathered. 2 Scrib. Dower, 440. As before stated, this rule has been changed by our statute. It has been held by this court, and is the well-settled law in this state, that the widow cannot, by the will of her husband, be deprived of the rights secured to her under the homestead law of 1875. The homestead passes to the widow by operation of law, and is expressly excepted from the operation of the will of her husband. "The will of the husband must yield to the will of the legislature." Kaes v. Gross, 92 Mo. 659, 3 S. W. 840; Rockhey v. Rockhey, 97 Mo. 76, 11 S. W. 225; Kleimann v. Gieselmann, 114 Mo. 444, 21 S. W. 796; Burgess v. Bowles, 99 Mo. 550, 12 S. W. 341, and 13 S. W. 99. The homestead law of 1865, not exempting the rights of the widow from the operation of the will of the husband, she can be excluded from her homestead by devises made by him, provided she accepts the provisions made for her in lieu thereof. Hence it has been held that the doctrine of election should be applied in determining whether she shall have her homestead by right under the statute, or the benefit of the will. Burgess v. Bowles, supra; Davidson v. Davis, 86 Mo. 442; Meech v. Meech, 37 Vt. 419. It is said in the case last cited, in construing the statute which was adopted under our act of 1865, that the dower and homestead laws are so much alike, and being for the same general objects, "that no distinction can be made as to the rules applicable to them when the question of election between them and a will arises." The homestead, as dower,...