Welch v. Anderson

• Decision Date: 31 March 1859
• Citation: 28 Mo. 293
• Parties: WELCH et al., Plaintiffs in Error, v. ANDERSON, Defendant in Error.
• Court: Missouri Supreme Court

28 Mo. 293

WELCH et al., Plaintiffs in Error,

v.ANDERSON, Defendant in Error.

Supreme Court of Missouri.

March Term, 1859.

1. To entitle a widow to dower under the third section of the dower act of 1845 (R. C. 1845, p. 430), it was necessary that she should make her election so to take in the mode prescribed by the seventh section of said act; otherwise she would be entitled to dower under the first section.

2. The right of the widow in such case to elect is strictly personal; it is not transmissible by descent.

3. The widow and the heirs may, by agreement and without a formal election by the widow, determine the kind and quality of estate she shall take as dower.

4. Suits for partition may be maintained in behalf of those having equitable titles only.

Error to Lincoln Circuit Court.

Demurrer to a petition for partition. The petition was an amended and supplemental one filed October 20th, 1857, in a suit for partition originally instituted, August 21, 1854, by Susannah Anderson, widow of Ransom T. Anderson, deceased, against the heirs of said R. T. Anderson. Susannah Anderson having died, her heirs filed an amended and supplemental petition. This petition is in substance as follows: “Plaintiffs state that to the October term, 1854, of the Lincoln circuit court Susannah Anderson filed her petition against said defendants, which petition is as follows--‘plaintiff states that in the year 1852, Ransom T. Anderson departed this life intestate and without issue of his body, leaving the following named persons his only heirs, to-wit, Susannah Anderson his lawful widow, Jeremiah Anderson his father, and James Anderson, Harrison Anderson, Sarah Cochran, Julia Williams and Mary Anderson, his brothers and sisters in equal degree; that he died seized in fee simple of the following described real estate, situated in the county aforesaid, to-wit: [describing it] containing in the aggregate four hundred and eighty-five acres; that plaintiff as widow aforesaid is entitled to one equal half of said land, and each of said defendant heirs to one equal sixth part of the other one-half thereof; that the debts against the estate of said Ransom T. Anderson are paid, and no reason exists why partition of said lands should not be made according to the rights of the parties. Plaintiff therefore asks that each of said defendants be duly notified of this suit and that the court will adjudge partition of said lands among said parties according to their respective rights, and appoint commissioners to make said partition.'

Plaintiffs further state in this their amended supplemental petition that on the petition aforesaid a summons for the said defendants, Jeremiah Anderson, James Anderson, Harrison Anderson and James Williams and Julia Williams his wife, issued, directed to the sheriff of the county aforesaid, which summons was duly served on each of them; that another summons issued for the defendants Sarah Cochran and Mary Anderson, directed to the sheriff of St. Charles county, in which said two defendants then lived; but said sheriff of St. Charles failing to return said summons in due time as commanded, the defendant James Anderson, in order to prevent delay of the suit, went to St. Charles and obtained from said two defendants a waiver of notice, and the same was filed in open court, as the records of the case will show; that it appearing to the court, on the filing of said waiver, that each of said defendants in the cause had notice of the suit, and all failing to appear and defend the same, the court rendered judgment of partition of said lands by default, and appointed commissioners such partition to make;” that the said partition was made on the 7th of May, 1855; that after said partition was made, but before report thereof to the court, the said Susannah Anderson died, leaving plaintiffs her only sons, who were duly made parties to the suit; that on the filing of the report, defendants moved the court to set aside it and the judgment of partition for several causes--one of which was the want of legal notice; that the court overruled the motion and confirmed the report; that the defendants appealed to the supreme court, which reversed the judgment and remanded the cause; [see Anderson v. Anderson, 23 Mo. 379;] that after the death of said Ransom T. Anderson, to-wit, October 16, 1852, the said Susannah Anderson, his widow, took out letters of administration on his estate and was about to proceed with said administration as by law directed; that said defendants suggested to her that said administration would cause delay in the partition and distribution of said estate, would be very expensive and wholly unnecessary, as all the parties in interest were of full age and could by agreement pay the debts of said estate and determine the respective rights of each by agreement; “that said parties then agreed that said administration should be abandoned and not carried into the court last aforesaid for confirmation or rejection; that said widow should pay one-half the debts of the estate, including one-half the expense of settling and making distribution and partition thereof, and have one equal half of the estate, both real and personal, as by law in such case provided; that said parties then employed Charles Wheeler, Esq., to reduce said contract to writing, and on the 15th day of November, 1852, he wrote the articles of agreement which said parties executed on said day, and a copy of which is herewith filed, the original being filed at the office of the clerk of the court last aforesaid, with the other papers of said estate. Plaintiffs know that said Susannah Anderson believed at the time she executed said contract that it embraced the entire estate, both real and personal, and they have no doubt that said defendants also believed it. Plaintiffs further state that the omission to include said real estate or the said Susannah's interest therein, was, as they believe and charge the fact to be, an innocent omission and contrary to the intention of both parties aforesaid; that said Susannah Anderson paid one-half of the debts of the estate, including expense of settlement, and performed every part of her said agreement in good faith; that she by consent of defendants brought her said action of partition, alleging therein that she was entitled to one equal half of said real estate; that Jeremiah, James and Harrison Anderson, and James Williams and wife were duly summoned as defendants in the cause and had delivered to them a true copy of the petition, in which she distinctly claimed the interest aforesaid, yet they suffered judgment of partition to be rendered against them by default and partition to be made according to the petitioner's prayer; that the administration of said estate being abandoned by the agreement aforesaid, it was not carried into court, and consequently the said Susannah was thereby deprived of the benefit of the notice to make her election of the interest which she would take in said estate, which it would have been the duty of the court to give her had the administration been within its jurisdiction; that defendants, well knowing that...