Stokes v. O'Fallon

• Citation: 2 Mo. 32
• Parties: STOKES v. O'FALLON, EXECUTOR, AND STOKES.
• Decision Date: 31 May 1828
• Court: United States State Supreme Court of Missouri

2 Mo. 32

STOKES

v.O'FALLON, EXECUTOR, AND STOKES.

Supreme Court of Missouri.

May Term, 1828.

APPEAL FROM ST LOUIS CIRCUIT COURT.

M'GIRK, C. J.

This was a bill in chancery for dower, for a discovery, and for marshalling assets, &c. The record shows, that the complainant was the lawful wife of William Stokes, who was an alien. That in 1818, Stokes took the preparatory steps towards naturalization. That in 1823, Stokes died, possessed of considerable real and personal estate. That before his death, he made his last and testament, devising and bequeathing his whole estate, real and personal, to O'Fallon, in trust, for the benefit of Ann Stokes, his illegitimate daughter. That Stokes left no lawful issue. That the personal estate is absorbed in the payment of debts, and the principal part of the real estate also. It also appears that the complainant, at the time of Stokes' death, was an alien. The complainant claims, first, to be endowed of one half of the personal estate of which the testator was owner at the time of his death--before payment of debts; and that inasmuch as this fund has been used up in the payment of debts, that the remaining lands may be charged with half, and sold or applied to raise an equivalent, to the use of the widow absolutely. The answer admits the chief things charged in the bill, and denies the right of the complainant to have any share of the personal property, in exclusion to the payment of debts out of that fund; and insists that an alien wife is not entitled to be endowed. The Circuit Court, on this state of things, dismissed the complainant's bill, with costs.

The error assigned, embraces the whole matter on the record. I will first consider the question:--whether, by the laws of this State, as they stood at the time of Stokes' death, in September, 1823, an alien widow could be endowed? And then I will consider the question:--whether a widow's share of the personalty, where the estate is solvent, is to be deducted from the whole assets as they stood at the death of an intestate? or whether that share shall be deducted from the remaining assets after the payment of debts?

In this case, before I proceed to the main question, I will notice the fact, that in the will, Stokes is silent as to the widow, which silence by the act of the Legistature of 1st December, 1821, concerning wills and testaments, according to my reading of the 4th section of that act, declares, that when any person shall make a will, and die, leaving a widow, &c., making no mention, in the will, of the widow; that as to her, he shall be deemed to die intestate. So that so far as respects this widow's right to be endowed, I will consider it as a case of intestacy.^(a)

I will consider the question whether an alien widow can be endowed. By the act of 6th December, 1820, aliens residing in any part of the U. S. or Territories, who shall have made a declaration of their intention of becoming citizens of the U. S., by taking the necessary oath in due form of law, are declared capable of acquiring and holding real estate in the same manner, and to the same extent, that citizens of the U. S. can do. This act establishes the capacity of the complainant's husband to hold a thing out of which a citizen's widow would be endowed.

I think it is clear from a review of several acts of the Legislature, passed at different periods of time, that the Legislature never intended to exclude alien widows from dower; it is true, that by the common law, an alien could not be endowed, and the reason given for it, is, because an alien could not hold land. The act passed 19th January, 1816, says, the common law of England, which is of a general nature, and not contrary to the laws of this Territory, shall be the rule of decision--so that there can be no doubt that at common law, the alien widow could not be endowed, unless that part of it which prohibits it was contrary to the laws of Missouri.

The most recent act in force, on the subject of descents of real estate, at the time of Stokes' death, is, the act to direct descents and distributions, passed 11th January, 1822, which says,...