Wash v. Wash
| Decision Date | 06 June 1905 |
| Citation | 87 S.W. 993,189 Mo. 352 |
| Parties | JOHN N. WASH v. ELDORADO WASH et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.
Affirmed.
J. B Harrison and Watson & Holmes for appellants.
Upon the right of the widow's election we submit the following authorities: Fosher v. Guilliams, 120 Ind. 172; In re Vance, 12 L.R.A. 227; 11 Am. and Eng. Ency. Law (2 Ed.), 57-120; Garn v. Garn, 135 Ind. 687. The object of the statute is complete when the widow signs and acknowledges the declaration and that is the operative act and under the Indiana authorities if she delivers the same to a third party, whether recorded or not at the time of delivery, and he deals with her interest as elected, she is estopped and her election is made, and he may file the instrument within the statutory period and prevent the bar of her election.
Charles E. Morrow for respondent.
The election of the widow was not made as required by statute. It was not filed in the recorder's office at all. Only a certified copy was filed after her death. R.S. 1899, sec 2943; Allen v. Harnett, 116 Mo. 278; Daudt v. Musick, 9 Mo.App. 169; In re Gunyon's Estate (Wis.), 55 N.W. 152. An election to be valid must comply with all the requirements of the statute. Kemp v. Holland, 10 Mo. 295; Allen v. Harnett, 116 Mo. 287. It must be completed by the widow in her lifetime. The right to elect is strictly personal and cannot be exercised by anyone succeeding to her interests. Welch v. Anderson, 28 Mo. 293; Davidson v. Davis, 86 Mo. 440; Bradford v. Wolfe, 103 Mo. 398; Hamilton v. O'Neill, 9 Mo. 11; Sherman v. Newton, 77 Mass. 307; Crozier's Appeal, 90 Pa. St. 384; In re Gunyon's Estate (Wis.), 55 N.W. 152; Fosher v. Gulliams, 120 Ind. 172. The right of election expires with her. It must be actually filed in her lifetime. In re Gunyon's Estate (Wis.), 55 N.W. 152; Crozier's Appeal, 90 Pa. St. 384; Allen v. Harnett, 116 Mo. 278. The privilege is rigidly personal. So strictly have these statutes been construed, that where the widow is insane and no provision made for anyone acting for her, the privilege is so rigidly personal that it could not be exercised by her guardian. Crozier's Appeal, 90 Pa. St. 384; Pinkerton's Admr. v. Sargent, 102 Mass. 568; Atherton v. Corliss, 101 Mass. 44; R.S. 1899, sec. 2943. Even the recording act does not provide for certified copies being recorded. It was no notice to anyone. The evidence does not show that Watson was authorized to file the election in the recorder's office. But if he were so directed by her, it was a mere agency, and the death of the widow terminated his authority, and he could not do it for her after her death. Prior v. Kiso, 96 Mo. 303; In re Gunyon's Estate (Wis.), 55 N.W. 152; 4 "Cyc.," 953. Equity cannot help appellant. Allen v. Harnett, 116 Mo. 287; Houx v. Bates County, 61 Mo. 391; Moreau v. Detchemendy, 18 Mo. 522.
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 stepdaughter, 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 seized 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 quit-claim 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 a general denial, but admitted that Thomas A. Wash died intestate seized of the land described in the petition, 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 running the same, but was accounting to the probate court for the rent, and denies 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 plaintiffs 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, 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 1889, 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 the back of above paper is the following:
The plaintiffs next offered in evidence a certified copy of the said paper certified by the judge of the probate court to be a true copy of the same as it appeared of record in his office, which said certified copy of said paper, together with the certificate thereon, was filed for record in the office of the recorder of deeds of Phelps county, Missouri, on the 15th day of August, 1900. The evidence tended further to show that Thomas A. Wash died May 15, 1899; that letters of administration were granted on his estate July 10, 1899, and notice of the letters was published within thirty days thereafter. The original election itself was never filed in the recorder's office. This was practically all the evidence offered by the plaintiffs.
The defendants offered in evidence the testimony of J. A. Watson, Esq., who testified that he prepared the election of Mrs. Wash, and represented her during the administration of the Wash estate. After her election was executed he took it to Rolla and filed it with the probate judge; it was his recollection that he told Judge Neuman to record it, and make out a copy or something, that it had to be filed in the recorder's office, and left it at that time and paid no more attention to it until after the death of Mrs. Wash, when he went to Judge Neuman and inquired if he had filed it with...
To continue reading
Request your trial