White v. Summerville
| Decision Date | 19 June 1920 |
| Citation | 223 S.W. 101,283 Mo. 268 |
| Parties | AGNES E. WHITE v. MAUD RUTH SUMMERVILLE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Arch A. Johnson, Judge.
Reversed and remanded.
G. G Lydy for appellants.
(1) The petition shows that the lands are not subject to partition and sale. The court erred in ordering the sale of all the lands as in cases of partition, because Sec. 2559, R. S 1909, defining the estates subject to partition, limits the right of partition to cases where lands, tenements, or hereditaments are held in joint tenancy, tenancy in common or coparcenary. The dowress, before admeasurement of her dower is not a joint tenant, nor a tenant in common, nor a coparcener. Her right rests in action only, and she takes in severalty. McClanahan v. Porter, 10 Mo. 462; Belfast Inv. Co. v. Curry, 264 Mo. 499; Waller v. Mardus, 29 Mo. 25; 2 Scribner on Dower (2 Ed.), p. 27; Jodd v. Ry. Co., 259 Mo. 239. An unassigned dower right is not an estate in lands. Jodd v. Ry. Co., 259 Mo. 239; Weatherford v. King, 119 Mo. 58; Farnsworth v. Cole, 42 Wis. 403; Witthaus v. Schack, 105 N.Y. 322; Gooch v. Atkins, 14 Mass. 378; Greenleaf Cruise, chap. 3, sec. 1, note; 10 Am. & Eng. Ency. Law (2 Ed.), p. 146; 5 L. R. A. 520, note; 14 Cyc. 961. And a mere dower right is not sufficient to sustain a petition for partition, at the instance of the dowress. Hurste v. Hotaling, 20 Neb. 178; Ullrich v. Ullrich, 123 Wis. 175; Reynolds v. McCurry, 100 Ill. 356; Wood v. Clute, 1 Sanf. Ch. (N.Y.) 199; Kissel v. Eaton, 64 Ind. 248; Kelsea v. Cleaves, 117 Me. 236; White v. White, 16 Grat. (Va.) 264, 80 Am. Dec. 706; 21 Am. & Eng. Ency. Law (2 Ed.), 1155; 30 Cyc. 180; Freeman on Co-tenancy and Partition (2 Ed.), secs. 456-431-432. (2) The act approved April 8, 1905, now Sec. 8499, R. S. 1909, containing a life annuity table, for estimating the present value of life interests, does not give the widow the right of election to require the owners of the fee to pay a gross sum in lieu of her dower, and the court erred in construing said section as though it did give such right. It has been expressly ruled that the life tenant cannot maintain a proceeding for the sale of the land in order to have the present value of his life interest computed and paid to him in cash. Atkinson v. Brady, 114 Mo. 200; Stockwell v. Stockwell, 262 Mo. 671; Hayes v. McReynolds, 144 Mo. 354. (3) The prevailing rule is that, independent of legislative authority, the courts cannot, without the consent of the parties, allow a gross sum in lieu of dower. Herbert v. Wren, 7 Cranch. (U.S.) 370; Francis v. Garrard, 18 Ala. 794; Francis v. Hendricks, 28 Ill. 64; Bonner v. Peterson, 44 Ill. 259; Blair v. Thompson, 11 Gratt. (Va.) 441; Jarrell v. French, 43 W.Va. 456; Ellguth v. Ellguth, 250 Ill. 214; Lee v. James, 81 Ky. 446.
F. B. Williams, Val Mason and Watson & Page for respondent.
(1) Equity has jurisdiction of dower. 1 Pomeroy, Equity Jurisp. (3 Ed.) sec. 280; 4 Pomeroy, Equity Jurisp., sec. 1382; 5 Pomeroy, Equity Jurisp., sec. 6; 6 Pomeroy, Equity Jurisp., sec. 691; Menifee v. Menifee, 8 Ark. 9; 14 Cyc. 979; Devorse v. Snider, 60 Mo. 235. (2) The statute, R. S. 1909, sec. 8499, creates in the dowress a right to have her dower computed in money, she being willing to accept a gross sum in lieu thereof. Dougherty v. Dougherty, 204 Mo. 228; Millard v. Beaumont, 194 Mo.App. 79. The courts have permitted a dowress, at her own suit, to have her dower commuted to a gross sum, applying the tables of mortality in the computation, and have made the same a lien upon the whole estate. Dougherty v. Dougherty, 204 Mo. 228; Brown v. Brown, 35 Mich. 415; Hogg v. Hensley, 100 Ky. 719; Fitts v. Craddock, 39 So. 506; Carlin v. Mullery, 83 Mo.App. 39; Gucker v. Kopp, 152 N.Y.S. 370. (3) There being no remedy provided by statute for the enforcement of this right, equity will supply the remedy, under the influence of the maxim, "Equity will not suffer a right to be without a remedy." 16 Cyc. 133; Albany County v. Durant, 9 Paige (N.Y.) 182; Balch v. Beach, 95 N.W. 135. (4) Dower is a legal, equitable and moral right, favored in a high degree by law and next to life and liberty held sacred. 14 Cyc. 885; Mandel v. McClave, 46 Ohio St. 407; In re Alexander, 53 N.J.Eq. 96; Bishop v. Boyle, 91 Ind. 169. (5) Partition is a proper proceeding in which to assign dower, and also homestead, and the rights of the parties can be adjusted in this suit. Colvin v. Havenstein, 110 Mo. 583; Weatherford v. King, 119 Mo. 58. (6) The uncontradicted evidence shows that the plaintiff is entitled to dower in all the lands described in her petition, and the decree of the court to this effect must be affirmed regardless of the validity of appellant's contentions that the decree is erroneous in ordering the lands sold for the purpose of paying her a gross sum in lieu of dower in kind.
OPINION
In Banc
The purpose of this action, so far as the controversy on the appeal is concerned, is to procure the sale of four parcels of land, of which James M. White, late of Greene County, Missouri, died seized on October 31, 1909, and to have the value of plaintiff's dower interest in said lands ascertained according to the Mortality Statutes of this State, and paid to her in money. Alternative reliefs were prayed in the petition, i. e., first, that the value of plaintiff's dower interest be ascertained and adjudged a lien on the lands until paid; second, that said dower interest be set off to plaintiff in kind, and the portion set off, sold, etc. The court below found, in the judgment, these facts: that said James M. White died on the date mentioned, seized of the four tracts of land, describing them; that plaintiff was the widow of the deceased and nineteen years old when he died; that defendants Maud Ruth Summerville, Mary Elizabeth Speaker and Estella Eugenia White were the only heirs at law of the deceased; that the defendant Jay F. Summerville was the husband of Maud Ruth Summerville and the guardian of the person and curator of the estate of Estella Eugenia White, who is of unsound mind, and John W. Speaker was the husband of Mary Elizabeth Speaker; plaintiff was entitled to a dower interest in the real estate, which has never been set off or assigned to her; she was not in possession of any of the land and had never received any rents or profits therefrom; she was willing to accept a gross sum in lieu of her dower. Wherefore it was considered, adjudged and decreed that a gross sum of money be paid to plaintiff by defendants in lieu of her dower interest in said lands; and as all the parties could not agree as to their value, the land should be sold and the "gross sum be estimated according to the value of the annuity at six per cent on one-third of the proceeds arising from the sale of the real estate, during the probable life of the plaintiff, according to the tables of mortality as contained in Chapter 82, Sections 8499 to 8501, Revised Statutes 1909, inclusive." The sheriff was ordered to sell the lands in separate tracts to the highest bidder for cash in hand, or at the option of the purchaser, one-half cash and the balance in secured notes, and to deliver to the purchaser a deed "conveying all of the right, title and interest of the plaintiff and defendants, of, in and to the real estate above described and by him sold." That after paying the costs of the action and of the sale, etc., plaintiff should be paid out of the proceeds "the gross sum above provided for," the remainder "to be paid to Maud Ruth Summerville, Mary Elizabeth Speaker, and Jay F. Summerville, guardian of the person and curator of the estate of Estella Eugenia White, a person of unsound mind, in equal parts or one-third each." From that judgment defendants appealed.
The first of the tracts of land involved in the action contains fifty acres and lies near the City of Springfield. The second tract contains ninety-five acres, and also lies near said city. The third tract is a lot in Hobart's First Addition to said city (Lot 3, Block 4), and the fourth tract consists of the west half of Lot Seven, and the east fourteen feet of lot Eight, Block Thirty-seven, of the original plat of North Springfield, in the City of North Springfield.
The petition averred the first tract was worth about five hundred dollars, the second about four hundred dollars an acre, or more than forty thousand dollars; the third, four hundred dollars, and the fourth $ 3500; averred further than none of the tracts produced any net income except tract four, on which there is a livery barn which rents for thirty dollars a month. The petition said further that Tract Two, although of large value, did not yield enough income to pay the taxes against it, and could only be made to produce a net income by dividing it into town lots and erecting buildings thereon; that if dower in kind was assigned to plaintiff out of Tract Two, the same would be worthless to her because the land could not be made to yield any income in its present condition; that dower in kind in said tract would have no substantial market value, because a life estate cannot be sold on the market; that she would be unable to improve her dower if assigned to her in kind, because she could not borrow money on her dower interest with which to improve the dower estate; that dower out of the rents and profits could not be assigned to her, for the land did not yield any; further, that to set apart her dower in kind would do great injury to her interest and would defeat the intent of the law relating to dower, by depriving her of a beneficial interest in the lands.
The answer charged the plaintiff with collecting rents and profits from the lands, and...
To continue reading
Request your trial