Wash v. Wash

• Decision Date: 06 June 1905
• Citation: 189 Mo. 352,87 S.W. 993
• Parties: WASH v. WASH et al.
• Court: Missouri Supreme Court

87 S.W. 993

189 Mo. 352

WASH v. WASH et al.

Supreme Court of Missouri, Division No. 2.

June 6, 1905.

PARTITION — DOWER — ELECTION OF WIDOW — RECORD.

Rev. St. 1899, § 2943, provides that a widow's declaration to take an undivided one-half of her husband's real estate, subject to his debts, in lieu of dower, shall be acknowledged and filed in the office of the clerk where letters shall have been granted, within 12 months thereafter, and that such declaration shall also be filed in the recorder's office in the same county within 15 months after the granting of letters; otherwise she shall be endowed under other specified sections. Held, that where a widow's declaration under such section was duly executed and filed with the probate judge of the county where letters were issued on her deceased husband's estate, but was not recorded in the recorder's office within the time specified, or until after the widow's death, the declaration was ineffective.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Suit by John N. Wash against Eldorado Wash and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.

J. B. Harrison and Watson & Holmes, for appellants. Charles E. Morrow, for respondent.

GANTT, J.

This is a suit in partition, commenced in the circuit court of Phelps county on the 26th of April, 1901. The defendants were all served, either by publication or writs of summons. The cause was afterwards sent on change of venue to Greene county. In the latter court a guardian ad litem was appointed for the minor defendants. There is no controversy whatever as to the proof of the heirs of Thomas A. Wash, deceased. It is conceded by both parties that they are correctly stated in the petition. It is alleged that Thomas A. Wash died intestate in Phelps county on the 15th day of May, 1899, owning the land described therein, leaving S. Caroline Wash as his widow; and the other plaintiffs and defendants are his brothers and sisters and their descendants, except the defendants Pierre Watson and the Harrison Machine Works. Thomas A. Wash had no children. He married his brother's widow, and the defendant Eldorado Wash was both his niece and step-daughter; being the daughter of S. Caroline Wash by her former husband, William Wash, his brother. The petition alleged that S. Caroline Wash did not elect to take one-half of the lands whereof her husband died seised, in lieu of dower, as she might have done, and on the 23d of February, 1900, she died, leaving a will, set out in the petition, whereby she devised all the land described in the petition to her daughter, Eldorado Wash, and Pierre Watson. It was also alleged in the petition that suit had been instituted in the circuit court of Phelps county by some of her heirs to contest said will, and that there had been a decision in said court sustaining the same, and an appeal had been taken to the Supreme Court, and the same was pending therein; that since the death of said S. Caroline Wash said Pierre Watson had executed a deed of trust of said land to G. A. Miller, trustee for the Harrison Machine Works, to secure a note therein described; that on the 25th of September, 1900, Pierre Watson made a quitclaim deed to all the said lands to Eldorado Wash; that, as a matter of fact, said S. Caroline Wash only had a dower interest in said lands, and she could will no interest therein to Eldorado Wash and Pierre Watson, and for that reason Pierre Watson and the Harrison Machine Works had no interest in said land, and Eldorado Wash had only an undivided one-eighteenth which she inherited from her uncle, the said Thomas A. Wash. There was an allegation that the land could not be divided in kind, and there was a prayer for judgment, for rents and profits, and that they be decreed a lien and charge on the interest of Eldorado Wash, and for partition and sale. The answer of Eldorado Wash was general denial, but admitted that Thomas A. Wash died intestate, seised of the land described in the partition, and that S. Caroline Wash was his widow, and averred that S. Caroline Wash duly made an election to take one-half of the lands of Thomas A. Wash, subject to debts, and that she died February 23, 1900, and left the will set out in the petition, and that a suit was pending to contest the same in the Supreme Court; admitted a deed from Pierre Watson to herself, and alleged that she was the owner of one undivided half of said lands by virtue of the election of said S. Caroline Wash and the will of said S. Caroline Wash, and the deed from Pierre Watson to herself. She alleged further that the debts of the estate had not been paid, and for that reason partition could not be had. She admitted further that she was in possession of the lands and renting the same, but was accounting to the probate court for the rents, and denied that she had converted the same.

The only controversy in this case arises over the sufficiency of the election made by Mrs. S. Caroline Wash as the widow of T. A. Wash. The plaintiff offered a paper in evidence which was executed by said S. Caroline Wash on the 17th of August, 1899, and filed in the office of the probate judge or clerk of Phelps county, Mo., on the 28th of August, 1899. It is in words and figures as follows:

"Now this day comes Carrie Wash, widow of the said T. A. Wash, deceased, and shows to the court that said T. A. Wash died without any child or other descendants in being capable of inheriting, and that she elects to take as dower in the estate of T. A. Wash, and in lieu of dower under the provisions of sections 4513, 4515 and 4516 of the Revised Statutes of Missouri of 1899, all the real and personal estate which come to her husband in right of her marriage with him, as also all the personal property of said T. A. Wash which come to his possession with her written assent, and which remained undisposed of at the time of the death of said T. A. Wash; and said S. Caroline Wash elects to take in addition to the above and subject to the payments of the debts of said T. A. Wash, one-half of the real estate and personal estate belonging to the said T. A. Wash at the time of his death, all the above to be her absolute property. Witness my hand this 17th day of August, 1899. S. C. Wash.

"On this 17th day of August, 1899, personally appeared before me Carrie Wash, to me known to be the person described in, and who executed the foregoing instrument, and acknowledged that she executed the same as her free act and deed. Chas. Roster, Justice of the Peace."

On the back of above paper is the following:

"Estate of T. A. Wash, deceased. Election of property...