Spurlock v. Burnett

• Citation: 70 S.W. 870,170 Mo. 372
• Parties: SPURLOCK v. BURNETT.
• Decision Date: 02 December 1902
• Court: United States State Supreme Court of Missouri

70 S.W. 870

170 Mo. 372

SPURLOCK v. BURNETT.

Supreme Court of Missouri, Division No. 2.

December 2, 1902.

HUSBAND AND WIFE — HUSBAND'S INTEREST IN WIFE'S ESTATE — ACTION — PARTIES.

1. Rev. St. § 658, provides that, when a complete determination of a controversy cannot be had without the presence of other parties, the court may order them to be brought in. Section 4518a provides that when a wife shall die without any child or descendants in being, capable of inheriting, her widower shall be entitled to one-half of her estate absolutely, subject to her debts. A wife's will gave her husband a very small legacy, and he claimed an interest in the realty, and filed a paper purporting to be a renunciation of the will. The executor of the wife, who claimed that the statute was not applicable, sued to quiet title. Held that, all the legatees in the will of the wife not being parties, it was error for the court to enter judgment without bringing them in.

Appeal from circuit court, Atchison county; Gallatin Craig, Judge.

Suit by John E. Spurlock, as executor of Mary A. H. Burnett, against Rodney Burnett. From a judgment for defendant, plaintiff appeals. Reversed.

Jno. P. Lewis, for appellant. L. D. Ramsey, for respondent.

BURGESS, J.

This is a proceeding in which the plaintiff, Spurlock, as executor of Mary A. H. Burnett, deceased, sues to quiet title to certain land described in the petition, and to invoke the aid of the court in the administration of her estate. The facts are but few, and as to them there is no controversy. They are briefly stated by plaintiff as follows: Mary A. H. Burnett died January 23, 1899, leaving, in real and personal property, about $10,000. She had been married to defendant, Rodney Burnett, about 22 years, but had been separated (though not divorced) from him for 10 years before her death. She died testate and without children or descendants. She was a widow at the time of her marriage to Rodney Burnett; her former husband's name being Thos. L. Holland, who had left a will, under a construction of which the Atchison circuit court, at September term, 1899, held that between $4,000 and $5,000 of her estate — more than she had supposed — properly belonged to said Thos. L. Holland's estate. This reduced her property to between $5,000 and $6,000, in both real and personal property. Under her will she required all her property, real and personal, to be sold and converted into money as soon as it could judiciously be done; and after paying her debts and two or three legacies, one of which was $25 to her husband, she required the balance of her estate to be divided into two equal parts. One half she gave to charitable purposes, and the other half she distributed to certain of her relatives. She left several pieces of real property. The will, as stated, gave full power to the executor to sell the lands, — in fact, required him to do so. No children were ever born of the marriage with Rodney Burnett. Her will gave him the $25 in lieu of all interest of every kind, if any he had, in her estate. Rodney Burnett filed in the probate and also in the recorder's office an instrument purporting to be a renunciation of the provisions of the will in his favor, and asserting a claim to one-half of the real and personal property, subject to the debts, of which his wife died seised. There is nothing to show for whose fault they were living separate. Not long before her death, deceased desiring to sell 120 acres of her land, and said Burnett desiring to sell 80 acres of his land, they, by mutual agreement, signed each other's deed; she releasing her dower in his land, and he joining with her in her deed. Out of the 120 acres, which was conveyed by her to one John A. Rhoades at $6,500, an 80, or two-thirds, was afterwards held to belong equitably to the Thos. L. Holland estate, as above mentioned. Defendant, Burnett, sets up his claim to one-half of the estate under an act passed in 1895, purporting to amend the dower law, called "section 4518a," which provides that, "when a wife shall die without any child or descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging to...