Wallace v. Crank

• Decision Date: 02 April 1930
• Docket Number: 28174
• Citation: 26 S.W.2d 601,324 Mo. 1114
• Parties: Edith Wallace et al. v. J. A. Crank et al., Appellants
• Court: Missouri Supreme Court

26 S.W.2d 601

324 Mo. 1114

Edith Wallace et al. v. J. A. Crank et al., Appellants

No. 28174

Supreme Court of Missouri

April 2, 1930

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Reversed and remanded (with directions).

McKay & McKay for appellants.

(1) Section 1 of the Act approved March 29, 1921, Laws 1921, page 119, abolishing tenancy by curtesy and providing in lieu thereof the widower shall have the same share in the real estate of his deceased wife as is provided by law for the widow in the real estate of her deceased husband, with the same rights of election and the same limitations thereto repeals Sec. 320, R. S. 1919, by implication. O'Brien v. Trust Co., 5 S.W.2d 74; Thomas v. McGee, 8 S.W.2d 71. (2) The husband's rights under Sections 321 323 and 325, R. S. 1919, being purely statutory, his election must be made in substantial compliance with the same, or failing in his lifetime to do so, he is endowed under Sec. 315, R. S. 1919, for and during his natural life. Price v. Woodford, 43 Mo. 247. (3) The husband's right to elect is personal and will not descend to his heirs. Welch v. Anderson, 28 Mo. 293; Davidson v. Davis, 86 Mo. 444; Castleman v. Castleman, 184 Mo. 432; Goesling v. Goesling, 287 Mo. 674.

Orville Zimmerman and Langdon R. Jones for respondents.

The definite provision of the election statute which stated that, upon a failure to elect, a widow should be endowed under Sections 345, 347 and 348, R. S. 1909, was taken out of the statute, and the words in lieu thereof, "Otherwise she shall be endowed under the provisions of the preceding sections of this article," substituted by the Legislature in 1919, and in the different amendments such language still appears in this section. Laws 1919, p. 104; Sec. 325, R. S. 1919; Laws 1921, pp. 111, 112. The election statute, now Sec. 325, R. S. 1919, prior to 1919 did not contain the words "otherwise she shall be endowed under the provisions of the preceding sections of this article," but instead of these words and in lieu thereof, the language of the statute was, "otherwise she shall be endowed under the provisions of Sections 345, 347 and 348." Sec. 355, R. S. 1909; Laws 1913, p. 91; Laws 1917, pp. 100, 107. Sections 345, 347 and 348 (now Secs. 315, 317 and 318, R. S. 1919) solely referred to the wife's dower interest in the real estate or lands of her husband, and these sections gave her no interest whatever in his personal estate. Provision is now made in our law unaffected by any election rights (and this same provision was also in our law before the amendment to Sec. 325 by the 1919 Legislature) for giving the widow an interest in the personal property of her deceased husband, if she had a child or children or other descendants. Sec. 349, R. S. 1909; Sec. 319, R. S. 1919. Provision was also made for permitting the wife, in lieu of dower of the one-third part of the lands, to take a child's part in her husband's real estate. This provision was the same prior to the 1919 amendment to Sec. 325 as it is now. It will be noted that this section was repeated in 1921 as shown on page 119, Laws 1921, but it was re-enacted in its original form in 1927, as will appear by reference to Laws 1927, page 99. Sec. 356, R. S. 1909; Sec. 324, R. S. 1919. In the Statutes of 1909, Section 356, giving the widow a child's part in the real estate of her husband in lieu of her one-third, did not precede but followed the statute requiring the election, and which was numbered in the 1909 Statutes as Sec. 355. In 1919 the provisions in Sec. 355, to-wit, "Otherwise she shall be endowed under the provisions of Sections 345, 347 and 348," were expressly stricken out, and in 1919 words in lieu thereof were placed in the election statute as follows: "Otherwise she shall be endowed under the provisions of the preceding sections of this article." Secs. 355, 356, R. S. 1909; Laws 1919, pp. 98, 104. It will then be noted that in the 1919 revision, instead of Sec. 356, R. S. 1909, following the election statute as changed and re-enacted in 1919, the position of the statute giving the right to a child's part were changed in such 1919 revision so that same preceded Sec. 325 instead of following it as it did under the law prior to the 1919 change in the election statute. Secs. 355, 356, R. S. 1909; Secs. 324, 325, R. S. 1919. It will be noted that inasmuch as Sections 345, 347 and 348, R. S. 1909, referred solely to an interest in lands, and since Sec. 349, R. S. 1909, only gave the widow an interest in the personal estate of her deceased husband in the event she had a child or children or other descendants, and since Sec. 356, R. S. 1909, gave the widow, in the event there was a child or children or other descendants, a child's part in the lands in lieu of her one-third dower, as the law existed prior to the amendment of the election statute in 1919, the childless widow of a man whose estate consisted principally of personal property, if she failed to elect under the law as it formerly existed, would be wholly cut out of any interest in the personal estate. The childless widow under the law as it existed prior to the amendment to Sec. 325 in the year 1919, if she thought to elect would get a one-half interest in both the real and personal estate under Sec. 351, R. S. 1909, now Sec. 321, R. S. 1919. We are not unmindful of the fact that where the widow took the child's part or where she elected to take half, the same was then subject to the payment of the husband's debts while her common law dower was not. The provisions of the election statute as it existed prior to the amendment of 1919, worked a hardship in many cases where the husband died without a child or children or other descendants, and where his property consisted chiefly or altogether of personal estate, and where the widow made no election.

OPINION

Atwood, P. J.

This is a proceeding to partition real estate submitted on the pleadings and agreed facts. Plaintiffs, who appear here as respondents, alleged in their petition that Sally J. Wallace was the owner of certain real estate; that she predeceased her husband, W. H. Wallace, dying intestate without surviving descendants; that no child was ever born of her union with W. H. Wallace; that W. H. Wallace died intestate on the day of May, 1926, the owner of an undivided one-half interest in said real estate; that he left plaintiffs, who were his daughters, as his sole surviving heirs at law; that plaintiffs were entitled to an undivided one-eighth interest each in said real estate; that defendants were the collateral heirs of the said Sally J. Wallace and were entitled to an undivided one-twelfth interest each in said real estate.

Defendants, who appear here as appellants, filed answer admitting all of plaintiffs' above allegations except those describing the interests of the parties, denying each and every other allegation in said petition contained, and further alleging that said W. H. Wallace never made any election to take one-half of the estate left by his deceased wife in his lifetime, as provided by statute. Further, answering defendants alleged that they were the fee simple owners of said land, and alleged facts upon which they prayed the court to try and determine the title to the real estate in question and render judgment in ejectment. Plaintiffs thereupon filed reply, admitting that W. H. Wallace never made any election of any kind, and also filed motion for judgment on the pleadings.

The case was submitted on the pleadings and agreed facts that Sally J. Wallace died intestate on or about the day of May, 1923, seized and possessed in fee simple of said real estate; that she left surviving her as her sole heirs at law, W. H. Wallace, her husband, and her brothers and sisters, J. A. Crank, Jesse Crank, John Crank, Fannie Tolle, Rose Schweinfurth and Dell Stephens, defendants herein; that Sally J. Wallace and W. H. Wallace had no children born alive of their union and that W. H. Wallace never made any election to take one-half of the estate left by his deceased wife Sally J. Wallace in his lifetime as provided by statute; that the plaintiffs herein, to-wit, Miss Edith Wallace, Mrs. Clyde Price, Mrs. Anna Wallace Bollivar, and Mrs. Blon W. Houlihan are the sole surviving children and heirs at law of W. H. Wallace, deceased. Partition was decreed in accordance with the allegations and prayer of plaintiffs' petition, the land ordered sold, and defendants have appealed from the judgment rendered and here ask that the judgment be reversed and the cause remanded with directions to set aside the judgment and decree heretofore entered and enter judgment dismissing plaintiffs' petition.

Section 320, Revised Statutes 1919, is as follows:

"When a wife shall die without any child or other descendants in being capable of inheriting, 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."

If this section had been in full force and effect when Sally J. Wallace died on the day of May, 1923, her husband, W. H. Wallace, would then have been seized of an undivided one-half interest in the real estate in question, and on his death in 1926 plaintiffs, as his sole surviving children and heirs at law, would have become the owners of this undivided one-half interest as decreed by the trial court. But in O'Brien v. Sedalia Trust Co., 319 Mo. 1001, 5 S.W.2d 74, and Thomas v. McGhee, 320 Mo. 519, 8 S.W.2d 71, we ruled that this section was repealed by implication upon the passage of the following act approved March 29, 1921 (Laws 1921, p. 119):

"The estate which a widower may have in the real estate of his deceased wife known as 'tenancy by the...