Wigley v. Beauchamp

• Decision Date: 28 February 1873
• Citation: 51 Mo. 544
• Parties: CHARLES WIGLEY, Appellant v. MARY F. BEAUCHAMP, Respondent.
• Court: Missouri Supreme Court

51 Mo. 544

CHARLES WIGLEY, Appellant

v.MARY F. BEAUCHAMP, Respondent.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Livingston Circuit Court.

Collier, Harris & Samuel, for Appellant.

I. Respondent on electing to take a child's part in the real estate of her husband, thereby renounced her dower in such real estate, and a child's share therein, so elected by her to be taken, became and was a fixed and an absolute estate in fee simple.

Such interest is not dower, but in lieu of, and a substitute therefor, and she thus became a tenant in common with her two minor children, with a similar fixed and ascertained interest. And in such case, no action on her part for the assignment and admeasurement of her interest or for damages would or could lie under any of the provisions of the statute regulating dower, nor would such action be at all necessary.

II. If this view of the case be correct, respondent's said interest in her husband's real estate is bound by the attachment levied thereon in this cause, and it makes no difference that snch estate is not separated, and divided from that of her two minor children. (Drake At. § 241; McMechan and Griffing, 9 Pick., 537; Crosby vs. Allyn, 5 Me, 453; Argyle vs. Dwinel, 29 Mc., 29; Still vs. Swan, Littel's Sel. Cas., 156.)

McFerran and Warder, for Respondent.

I. The dower interest of the defendant in the estate of her deceased husband before assignment was not liable to seizure on execution or attachment, and such seizure upon attachment, upon publication of notice against defendant as a non resident, conferred no jurisdiction upon the Court of the subject matter of the suit; and the Court below committed no error in rendering final judgment dismissing the suit. (Orrick vs. Pratt, 34 Mo., 226; Watson vs. Watson, 28 Mo., 300; Waller vs. Mardus, 29 Mo., 25; 2 Scribn. Dow., 37.)

EWING, Judge, delivered the opinion of the court.

This was a suit by attachment against the defendant Mary F. Beauchamp, widow of James Beauchamp, deceased, to recover four thousand twelve and 61-100 dollars for goods, wares and merchandise alleged to have been sold and delivered to her. The ground of the attachment was non-residence. The cause was taken by change of venue from the Common Pleas Court of Livingston county to the Circuit Court of said county.

The answer denies the indebtedness and alleges that she, the defendant, is the widow of Jas. Beauchamp, and that the only property attached or which purports to be attached as appears by the sheriff's return, is the property in which she has a dowr interest only as widow of said Beauchamp, and in which her dower interest has never been assigned or admeasured to her, and that said dower interest is not subject to attachment. That the suit was instituted by attachment only, and by publication of notice, and that the property so seized is not subject to attachment, and the seizure thereof conferred no jurisdiction.

Plaintiff filed a replication alleging that defendant had duly made her election to take and be endowed absolutely in a share in such lands equal to the share of a child, of such deceased husband, subject to the payment of his debts, in lieu of the one-third part^a1 of the lands of which her husband died seized, &c.

A demurrer to this replication was filed by defendant and sustained by the court and the cause is here by appeal.

The only question presented by the record, is as to the effect of the election, made by the defendant. Did it vest in her a title in fee to an undivided one-third part of the real estate described in the return?

This question was passed upon by this court in the recent case of Matney vs. Graham, (50 Mo., 559.) That was an action of ejectment and the question arose upon an instruction given by the court to the effect, that the fact, that a widow had elected to take her dower in the lands of her husband under the third section of the act in reference to dower in this state, was not sufficient to show that she had any...