Warren v. Williams

• Decision Date: 23 February 1887
• Parties: MARTHA W. WARREN ET AL., Defendants in Error, v. ELMA M. WILLIAMS ET AL.; MARIA E. GREEN, Plaintiff in Error.
• Court: Missouri Court of Appeals

25 Mo.App. 22

MARTHA W. WARREN ET AL., Defendants in Error, v. ELMA M. WILLIAMS ET AL.; MARIA E. GREEN, Plaintiff in Error.

Court of Appeals of Missouri, St. Louis.

February 23, 1887

APPEAL from the Cape Girardeau Court of Common Pleas, ROBERT L WILSON, Judge.

Affirmed.

SAM. M. GREEN, for the plaintiff in error: The common law respecting dower proper, and its incidents, has been changed in this state, and is repugnant and inconsistent with the statute law. Rev. Stat., sects. 2186, 3117; Kelley's Probate 351; Bryant v. McCune, 48 Mo. 548. The life estate of the widow of William Williams, and the fee-simple title of his children to his real estate, vested immediately at his death. Rev. Stat., sect. 4003; Wommack v. Whitmore, 58 Mo. 448. That was sufficient to create the inchoate right of dower in the plaintiff in error which became consummate at the death of Thomas J. Williams. There was no exercise of acts of ownership, nor absolutely any ownership in Louisa L Williams. Bryant v. Christian, 68 Mo. 98. There may be seizin in deed without entry. 4 Mass. 546; 7 Mass. 494; 15 Mass. 546.

R. H. WHITELAW and FRANK E. BURROUGH, for the defendants in error: Dower does not attach to an estate in remainder or reversion. 1 Bishop on Married Women, sects. 273, 4, 5, 6, 7, and cases in note 5, p. 181 et seq.; 1 Washburn on Real Prop. 154, and cases cited in notes; 4 Kent's Commentaries, *30-40. The word seizin, as used in reference to dower, means the common law rule of the right to immediate enjoyment. It is there used in its ancient common law sense. 1 Bishop on Married Women, sect. 250, p. 167.

OPINION

THOMPSON J.

This was a proceeding for partition among the heirs of William Williams, deceased. The sole question which arises on the record is, whether Maria E. Green is entitled to a portion of the proceeds of the sale for partition, in lieu of a dower interest in the lands, as widow of Thomas J. Williams, son of William Williams. William Williams devised his estate to his widow for life, the remainder to his children, and thereafter died. Before the death of his widow, his son, Thomas J. Williams, died, leaving a widow, Maria E. Williams, who subsequently inter-married with Samuel N. Green. After the death of Thomas J. Williams, the widow of William Williams died, and thereupon this proceeding for partition was brought by the heirs of William Williams.

The court made an interlocutory decree, settling the interests of the parties, in which Maria E. Green was adjudged entitled to a dower interest, as the widow of Thomas J. Williams, and ordered sale for partition. After the coming in of the sheriff's report of the sale, and at a subsequent term of the court, the court made a reformed decree, distributing the proceeds, which excluded the right of Maria E. Green to a dower interest, as widow of Thomas J. Williams. Exceptions were duly saved to so much of this decree as denied the dower interest of Mrs. Green, and she has brought the question by writ of error to this court.

I. It is plain that Mrs. Green has no interest, by way of dower, in the fund for distribution. By the common law the widow was dowable only in lands of which her husband was seized of an estate of inheritance during the coverture. Our statute has not changed, but has confirmed, this rule of the common law. Rev. Stat., sect. 2186. The word " seizin," as used in our statute, implies either...