Seibel v. Seibel
| Decision Date | 09 April 1925 |
| Docket Number | 24665 |
| Parties | SEIBEL v. SEIBEL et al |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied June 5, 1925.
Byrne E. Bigger, of Laclede, for appellants.
Rendlen & White, of Hannibal, for respondent.
This is an action to determine title and for partition. From a judgment for plaintiff, as prayed in the petition, the defendants have appealed.
Samuel Seibel, the common source of title, died testate January 9 1917, survived by his widow, Kathrina Seibel, and by three children Louisa Seibel, John Seibel, and Katie McDonald, wife of Winthrop McDonald. The will, which was duly probated, devised testator's real estate to his wife during her natural life, with remainder in fee, share and share alike, to each of his three children. John Seibel died in August, 1917 intestate and without issue, leaving his widow, the plaintiff, surviving him.
The court, by its judgment, found and determined that plaintiff was entitled to one-half of the one-third interest of her husband, John Seibel, at the time of his death, subject to the life estate of his mother, Kathrina. The court also determined and defined the several interests of the other parties, and adjudged that partition be made accordingly.
It is conceded that plaintiff is not entitled to common-law dower in the premises under section 315, R. S. 1919, because John Seibel, on account of his mother's intervening life estate, was not seized of an estate of inheritance at any time during their marriage. John Seibel died without a child or other descendant capable of inheriting. It is contended that since plaintiff did not file an election to take her dower, as provided in section 315, or as provided in section 321, she is precluded from taking any interest in the premises.
This section 321 provides that --
'When the husband shall die without any child or other descendants in being, capable of inheriting his widow shall be entitled: * * * Second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband's debts.'
In Von Arb v. Thomas, 163 Mo. 33, 43, 63 S.W. 94, 96, it is held that, if a widow is not entitled to dower in her husband's estate under the statute or common law 'she could not elect to be endowed of a half in fee subject to debts.' And it is contended that, as this holding was unreversed at...
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