Schuster v. Schuster
| Decision Date | 21 April 1937 |
| Docket Number | 34614 |
| Parties | Mrs. Lowell Schuster and John Schuster v. Joe Schuster, Nannie Mellor, Henry Schuster, Frank Schuster, Guy Schuster, Gus Schuster, Ben Schuster, Ada Stith, L. A. Esser, Lizzie I. Day, Elnor Carlos, Adam Esser, Joe B. Esser, Jr., Frank Sandrock, Minnie McKinsey, Evelyn Field, Fred Schuster, Margaret Hoffman, Annie Miller, Mary Lammers, Sophia Lammers, John Schuster, Leona Meyers, Christina Wittman, William Schuster, Grace Quinlin, Hubert Schuster, Nellie Lammers, Florence Lammers, Catherine Bock, Irene Schweitzer, Alice Schuster, Minor, Alma Schuster, Minor, Martha Schuster, Minor, Mrs. Leo Volmer, Leonard Schuster, Ralph Schuster, Christina Schuster, Roberta Schuster, Mary Helen Schuster, Minor, Margaret Schuster, Minor, Frank Schuster, Minor, Raymond Schuster, Minor, Effie Schuster, Minor, Rosaline Schuster, Minor, Richard Schuster, Minor, Isabell Schuster, Minor, Citizens Bank and Pilot Grove Bank, Corporations, Defendants, Gus Schuster, Citizens Bank and Pilot Grove Bank, Corporations, Appellants |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court; Hon. Aubrey R. Hammett Judge.
Affirmed and remanded.
Pendleton & Martin and John H. Windsor for appellants.
(1) The court erred in holding that the respondent, Lowell Schuster had made her election to take one-half of the real estate under the provisions of Sections 325 and 329, Revised Statutes 1929. (a) When widow is entitled to dower under Sections 318 and 321-2, Revised Statutes 1929, and one-half of real estate under Section 325, Revised Statutes 1929, she must make her election under Section 329, Revised Statutes 1929. Secs. 318, 321, 322, 325, 329, R. S. 1929; Kolcke v. Kolcke, 208 S.W. 825, 276 Mo. 572. (b) The filing by the widow of her election in the probate court, and then filing and recording in the office of the recorder of deeds a certified copy of said election as filed in the probate court, said certification being made by the probate court does not comply with the provisions of Section 329, Revised Statutes 1929, and does not entitle the widow to the benefit of the provisions of Section 325, Revised Statutes 1929. Secs. 325, 329, 3039, 11543, R. S. 1929; 60 C. J., pp. 986, 988; Landis v. Hawkins, 234 S.W. 828. (c) The certified copy of the election filed in the probate court showing the filing of such election in the probate court, is not subject to being recorded in the office of the recorder of deeds. Secs. 3039, 11543, R. S. 1919; Secs. 548, 3030-3038, 3053, 11559, R. S. 1929. (d) The recording of an instrument not subject to being recorded does not give constructive notice and is of no effect whatever. Heintz v. Moore, 264 Mo. 226; Williams v. Butterfield, 182 Mo. 184. (e) There must be a substantial compliance with the provisions of the statute governing elections by widows. Price v. Woodward, 43 Mo. 253; Wash v. Wash, 189 Mo. 352; Allen v. Harnett, 116 Mo. 278; Castleman v. Castleman, 184 Mo. 444; McLain v. Mercantile Trust Co., 237 S.W. 508; Wallace v. Crank, 26 S.W.2d 601. (2) The court erred in holding that the land described in plaintiffs' amended petition could be partitioned. (a) Doweress may not sue the owners of the fees for partition, she not being a tenant in common, joint tenant or coparcener with them. White v. Summerville, 223 S.W. 101; Carson v. Heck, 222 S.W. 850. (3) The court erred in overruling the motion to strike out plaintiffs' amended petition. (a) When original suit for partition is brought by doweress, the filing of an amended petition in which one of the owners in the fee joins as a party plaintiff is a departure and a substitution of an entirely new cause of action and motion to strike the entire pleading should be sustained. Boyd v. St. L. Brewing Co., 5 S.W.2d 49; Beattie Mfg. Co. v. Garardi, 166 Mo. 142.
A. W. Walker, Roy D. Williams and W. W. Carpenter, Jr., for respondents.
(1) The suit is for partition of lands. There are two plaintiffs. It stands admitted that the plaintiff, John Schuster, owns an undivided interest in fee as a tenant in common and is a competent party to bring such suit. He was originally a defendant and became a plaintiff by amended petition which was filed with leave of court and before trial. The amendment made no change in the subject-matter of the suit and brought no new party into the case. The rule has become settled in Missouri that such amendments are allowable. Sec. 819, R. S. 1929; Syz v. Milk Wagon Drivers' Union, 24 S.W.2d 1082; Eulinberg v. Quick Payment Ins. Co., 261 S.W. 726; Craig v. Met. Life Ins. Co., 296 S.W. 211; Kepley v. Park Circuit, 200 S.W. 755; Lilly v. Tobbein, 103 Mo. 477; Commission Co. v. Milling Co., 136 Mo.App. 365; Gresham v. Talbott, 31 S.W.2d 766; 47 C. J. 171. (2) The second issue in the case, which does not affect partition and is only pertinent upon the question of distribution after the land is sold, is whether the other plaintiff, Mrs. Lowell Schuster, is entitled to an undivided one-half of the lands in fee under her widow's election or to a life interest in one-third under statute as dower. Her husband died childless and the question involved depends upon the construction of that part of Section 329 which reads as follows: "Such election shall be . . . filed in the office of the clerk of the court . . . where letters . . . shall have been granted; and such declaration shall also be filed in the recorder's office of the county," etc. Sec. 329, R. S. 1929. The section requires no recording but filing only. (a) To file a paper, ordinarily means, "the act of the party depositing the paper with the officer, for keeping, or the act of the officer in folding, endorsing and putting up the paper." State v. Clardy, 267 Mo. 371, 185 S.W. 187. (b) Strict conformity to Section 329 would require execution of the declaration in duplicate or the use of a certified copy from one office to the other. The statute does not require duplicates, so a certified copy is the method contemplated by the statute and is the only way said section can be complied with. Sec. 329, R. S. 1929. (c) An attested copy was competent evidence. Our statute says: "Copies from the records of proceedings of any court of record . . . attested by the clerk thereof with the seal of the court annexed . . . shall be received as evidence of the . . . proceedings of such court of record in any court in this state." Sec. 1700, R. S. 1929; Stevens v. Oliver, 200 Mo. 492. (d) Appellants attempt to draw from certain decisions cited and from Sections 3039 and 11543 of the recording acts, the inference that the law requires that the declaration be recorded; and that a certified copy is not permitted of record. (e) Sections 3039 and 11543 have no application here. Section 3039 of Chapter 22 does not exclude any instruments from record but provides for record of those acknowledged or proved according to that chapter; and Section 11543 expressly includes all instruments affecting real estate which are acknowledged or proved according to law. (f) The purpose of the statute (Sec. 329) is to give notice to interested parties. A strict compliance is not required and an extremely liberal construction is to be indulged. The mere lodging with the officer of a declaration is equivalent to a filing. Landis v. Hawkins, 234 S.W. 827.
Ferguson, C. Hyde and Bradley, CC., concur.
This is an appeal from an interlocutory judgment in an action for partition of lands situated in Cooper and Saline counties. Adam Schuster died, intestate, March 25 1934. It is admitted that at the time of his death Schuster was the owner in fee of the lands described in the petition and the interlocutory judgment. His wife, Mrs. Lowell Schuster, survived him. It is further admitted that Schuster "left no lineal descendants." Within the period limited by Section 329, Revised Statutes 1929, the widow executed the declaration prescribed by that section electing "to take one-half of the real and personal estate belonging to Adam Schuster, my husband, at the time of his death, absolutely, subject to the payment of his debts." [Sec. 325, R. S. 1929.] Thereafter the widow, alleging that she was "entitled to an undivided one-half interest" in the real estate of which her husband died seized of title in fee, described in the petition, commenced this suit in partition, in the Circuit Court of Cooper County. It is admitted that, except the two defendant banks who held liens on the interests of certain heirs, the defendants therein comprised all the collateral heirs of the deceased, Adam Schuster, being his nieces, nephews and children of deceased nieces and nephews. It is also admitted that the original petition, and the amended petition, hereafter referred to, "correctly set forth the relationship of the parties, plaintiff and defendant," to the decedent. At the February Term, 1935, of the Cooper County Circuit Court an amended petition was filed naming the same parties defendants except John Schuster, a nephew of the deceased, Adam Schuster, one of the defendants in the original petition, who joined in the amended petition as a plaintiff. The interest of the widow, plaintiff Mrs. Lowell Schuster, was alleged, as in the original petition, to be an undivided one-half interest and that of plaintiff John Schuster to be an undivided 1/190th. Thereafter the cause went, on change of venue, to the Circuit Court of Howard County where it was tried. A number of the defendants made default but the two defendant banks and certain other defendants contested. They took the position, which appellants advance here, that, for the reasons hereafter stated and discussed, the widow's election was void and ineffective so that she never, by virtue thereof, became entitled to an undivided one-half interest in fee in the...
To continue reading
Request your trial