Watson v. Watson

• Citation: 28 Mo. 300
• Parties: WATSON, Appellant, v. WATSON et al., Respondents.
• Decision Date: 31 March 1859
• Court: United States State Supreme Court of Missouri

28 Mo. 300

WATSON, Appellant,

v.WATSON et al., Respondents.

Supreme Court of Missouri.

March Term, 1859.

1. To entitle a widow to dower under the first section of the dower act (R. C. 1855, p. 668), it is not necessary that she should elect so to take. No election to take dower under the first section of the act can, as an election, take away her right to elect to be endowed under the eleventh section of said act. To overthrow this right, there must be a binding contract or such facts and circumstances as will work an estoppel in pais.

2. The institution of a suit by a widow to recover dower according to the first section of the dower act, and the declaration in the petition in such suit, which is signed and sworn to by her, that she thereby elects to take as her dower the third part of the lands of the deceased husband, will not take away her right to elect, within eighteen months after the grant of letters testamentary or of administration, to take dower under the eleventh section of said dower act.

Appeal from St. Louis Land Court.

Meany, for appellant.

I. The plaintiff was not estopped.

Gantt, for respondents.

The widow, in the most solemn and authentic manner, elected to have dower according to the provisions of the first section. She has no claim to the benefit of the eleventh section. She can not allege ignorance of law. She made her election between the provisions of the first and eleventh sections. No notice is required to be given to the widow to put her upon her election. She was sui juris, free from all disability. There is no limit whatever to the modes in which she may renounce the benefits of section eleven--express renunciation, nonclaim, and direct declaration of preference for and demand to have the alternative. An election can be exercised only once. When the party has chosen, his right is exhausted. (Bouvier, Law Dict. tit. Election; Co. Litt. 146, 136.)

SCOTT, Judge, delivered the opinion of the court.

On the 26th day of June, 1856, letters of administration on the estate of Ringrose J. Watson were issued. On the 18th September, 1857, Frances Watson, his widow, under the eleventh section of the act concerning dower, approved November 29, 1855, elected to take a child's part of the real estate, whereof her husband died seized or possessed, in lieu of the dower or provision made for widows by the first section of that act. This election was made in conformity to the requirements of the statute. Prior, however, to its being made, the widow had brought suit to recover her dower, in which she claimed it under the first section of the foregoing recited act. Her petition set out, among other matters, that “she was entitled to her dower interest, as widow, in said tracts of land; said dower interest being an undivided one-third interest therein for the term of her natural life, the same being the kind of dower which she hereby elects to take in the land.” This suit was brought to the March term, 1857; and afterwards, she having in the mean time made the election above mentioned under the eleventh section of the act concerning dower, the plaintiff, at the October term, 1857, filed an amended petition in which she claimed dower according to said election, alleging that at the time of filing her original petition she was ignorant of her true rights and interests in the premises, and had been misinformed as to them by an attorney at law whom she consulted. The defence was that the widow was concluded by the election she had made in her original petition, and that a subsequent election was of no effect, she having already made one. Of this opinion was the...