Spurlock v. Burnett

• Decision Date: 02 July 1904
• Citation: 81 S.W. 1221,183 Mo. 524
• Parties: SPURLOCK et al. v. BURNETT et al.
• Court: Missouri Supreme Court

81 S.W. 1221

183 Mo. 524

SPURLOCK et al. v. BURNETT et al.

Supreme Court of Missouri, Division No. 2.

July 2, 1904.

DESCENT AND DISTRIBUTION—RIGHTS OF SURVIVING HUSBAND—TESTAMENTARY DISPOSITION BY WIFE—EFFECT—STATUTES—RETROACTIVE EFFECT—CONSTITUTIONALITY.

1. Rev. St. 1899, § 2938, providing that, when a wife shall die without any descendants, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife's debts, and section 2939, providing that, when the husband shall die without any descendants, his widow shall be entitled 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, are companion sections, intended to place both husband and wife on an equal footing with respect to their rights in the other's estate; and the interest given to the husband in the former section and that given to the wife in the latter are equally beyond the power of the other to defeat by will.

2. Rev. St. 1899, § 2938, providing that, when a wife shall die without any descendants, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife's debts, applies only to property owned by the wife and undisposed of by her at the time of her death.

3. Rev. St. 1899, § 2938, providing that, when a wife shall die without any descendants, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife's debts, applies to property acquired before its passage by a then married woman, but is not for that reason unconstitutional.

Appeal from Circuit Court, Atchison County; H. C. Timmonds, Special Judge.

Action by John E. Spurlock, executor of Mary A. H. Burnett, deceased, and others, against Rodney Burnett, Jr., and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

John P. Lewis, for appellants. L. D. Ramsay, for respondents.

BURGESS, J.

This case was before this court upon a former occasion, and is reported in 170 Mo. 372, 70 S. W. 870, wherein the facts are fully stated. The judgment was then reversed, and the cause remanded, in order that the legatees under the will might be made parties. After the judgment was reversed and the cause remanded, all of the heirs of Mary A. H. Burnett were made parties plaintiff, and they filed an amended petition. Thereafter Rodney Burnett died, and, his death being suggested and admitted, an amended petition was filed, making all of his heirs parties defendant.

Upon the trial of the cause the court made the following finding of facts, and rendered the following judgment and decree:

"Now, at this day, the above-entitled cause coming on to be heard, and all the plaintiffs and the defendants appearing by their respective attorneys and announcing ready for trial, and the cause being submitted to the court upon the pleadings, the admissions, and evidence, the court doth find the following to be the facts, to wit: The plaintiff John E. Spurlock is the duly qualified and acting executor of the last will and testament of Mary A. H. Burnett, deceased, who died in January, 1899, in Atchison county, Missouri. That the defendant John D. Dopf is the duly qualified and acting executor of the last will and testament of Rodney Burnett, deceased, who died in said county and state in March, 1903. At the time of the death of said Mary A. H. Burnett, she owned the following described real estate, situated in said county and state, to wit: The east half of the northwest quarter of section No. twenty-seven (27) in township No. sixty-four (64), of range No. forty-one (41), and lots No. one and two (1 and 2) in block No. two (2) of Bischoff's Addition to the town of Rock Port; also personal property of the value of about twenty-five hundred dollars ($2,500). By the terms of her last will she bequeathed to said Rodney Burnett twenty-five dollars ($25) in full and in lieu of all and every interest, if any, which he might have in her property, both real and personal. At the time of the death of said Mary A. H. Burnett, she and said Rodney Burnett were husband and wife, although not then living together, they having been duly married in the year 1878. Said Mary A. H. Burnett died without any child or other descendant in being capable of inheriting. No child was ever born of said marriage. Both of said wills were duly probated, and within twelve months after the death of said Mary A. H. Burnett, and within twelve months after the probate of said will of said Mary A. H. Burnett, her widower, said Rodney Burnett, renounced the provisions of said will, and elected to take under the provisions of section 2938 of the Revised Statutes of Missouri of 1899. By said will of said Mary A. H. Burnett, said John E. Spurlock, as executor thereof, was authorized and directed to sell all the real and personal property of said testator, Mary A. H. Burnett, and, after the payment of all her debts and expenses of administration, and the legacy of $25 to her husband, aforesaid, the net remainder of her estate was bequeathed as follows: One half to Bishop Hartzell, Bishop of the African Mission, who is the plaintiff Joseph C. Hartzell, and, of the other half, $200 was bequeathed to the plaintiff Triphena Kirkham, and the remainder was...