Waters v. Herboth

• Decision Date: 25 November 1903
• Citation: 77 S.W. 305,178 Mo. 166
• Parties: WATERS et al. v. HERBOTH.
• Court: Missouri Supreme Court

77 S.W. 305

178 Mo. 166

WATERS et al. v. HERBOTH.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

WILLS—WIFE'S TESTAMENTARY RIGHTS—STATUTES—CONSTRUCTION.

1. Laws 1895, p. 169, enacts that, if a wife die without "child or other descendants in being capable of inheriting," her widower shall be entitled to one-half her estate. Section 2939, Rev. St. 1899, provides that, if a husband die "without any child or other descendants in being capable of inheriting," his widow shall be entitled to one-half of his estate. Section 4603, Rev. St. 1899, gives a married woman the right to dispose of her estate by will, subject to the rights of her husband, if any, to his curtesy therein. The chapter on "Administration" (sections 105, 107, Rev. St. 1899) gives certain articles and $400 to the widow in case the husband die intestate; and section 111 gives the husband certain enumerated articles in case the wife die intestate; and section 2 of such chapter provides that if there is no more in the estate than the articles enumerated, and the amount of money mentioned, there shall be no administration. Held, that the interest given the husband by Laws 1895, p. 169, is one that the wife cannot defeat by will; such law and section 2939, Rev. St. 1899, being intended to form one law, establishing the relative rights of husband and wife in the property of each other under the same conditions, and sections 105, 107, 111, Rev. St. 1899, not being designed to affect final distribution.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Judicial proceedings on settlement of the estate of Virginia E. Herboth, deceased. From a judgment of distribution, August Herboth appeals. Reversed.

Hickman P. Rodgers, for appellant. N. D. Thurmond, for respondents.

VALLIANT, J.

Appellant was the husband of Virginia E. Herboth, who died in 1897, without ever having had a child; leaving a will purporting to dispose of all her property. When the probate court came to make a final distribution, the husband claimed one-half the estate, in spite of the will, by virtue of the act of the General Assembly entitled "An act to amend chapter 55 of the Revised Statutes of Missouri, 1889, entitled `Dower,' by adding a new section thereto, to be known as section 4518a," approved March 2, 1895. Laws 1895, p. 169. The matter was carried by appeal to the circuit court, where the judgment was adverse to the husband's claim; that court holding that the act of 1895 was unconstitutional. The husband appeals.

Before the matter came on for final distribution in the probate court, the husband, as executor, had instituted in the circuit court a suit against the distributees and legatees, the object of which was to obtain an interpretation of the will. That suit resulted in a decree to the effect that the will did not recognize the right of the husband to one-half the estate under that statute, but did recognize the possibility of such a right, and provided that a legacy therein of $1,500 to him, and a release therein directed of a deed of trust debt for $2,000 which he owed the testatrix, should be conditioned on his not being entitled to one-half the estate under the statute, and that, if it should turn out that he was so entitled and claimed it, then the legacy of $1,500 and the release of the $2,000 debt should become void. It was also declared by the decree that the will expressly gave the husband, in addition to the $1,500 legacy and the release of the $2,000 debt, all that part of the estate that he would have taken if there had been no will under the act of the General Assembly of date April 8, 1895 (Laws 1895, p. 35), which is now section 111, Rev. St. 1899, in the chapter on "Administration." There was no appeal from the decree, and it is to be taken as the final adjudication of that subject. It was after the decree in that case that this cause came on for adjudication of the rights of the parties on the final distribution of the estate, when, as above said, the circuit court held that the act of March 2, 1895, was invalid, and that the husband was entitled to only what the will gave him; hence this appeal.

In O'Brien v. Ash, 169 Mo. 283, 69 S. W. 8, the constitutionality of the act of March 2, 1895, which is now section 2938, Rev. St. 1899, was in question, and the court decided that the act was constitutional and valid. That decision by this court was not rendered before that judgment...