Wood v. Conqueror Trust Co

• Decision Date: 30 June 1915
• Docket Number: No. 17376.,17376.
• Parties: WOOD v. CONQUEROR TRUST CO. et al.
• Court: Missouri Supreme Court

178 S.W. 201

265 Mo. 511

WOOD v. CONQUEROR TRUST CO. et al.

No. 17376.

Supreme Court of Missouri, Division No. 1.

June 30, 1915.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Eurnie I. Wood against the Conqueror Trust Company, administrator of Charles B. Wood, deceased, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

On March 20, 1912, plaintiff filed in the above circuit court her petition, containing two counts. The second count was thereafter dismissed. Personal service was had on defendant, Conqueror Trust Company, as administrator with the will annexed of the estate of Charles E. Wood, deceased, and service was obtained on all the other defendants by publication, in due form and under proper order of the court. We have adopted appellant's statement of the case, which reads as follows:

"The petition alleges that plaintiff is the owner in fee of an undivided one-fourth of certain real estate therein described, situated in Jasper county, Mo., and that defendants claim some title, estate, or interest therein adverse to the estate and title of plaintiff, and asks the court to try, ascertain, and adjudge the title and interest of plaintiff and defendants, respectively, therein.

"At the time of his death, February 17, 1908, Charles E. Wood was the owner in fee of an undivided one-half of said real estate. He died testate. At the time of making his will, August 27, 1907, and thereafter continuously until his death, he was a resident of and domiciled in the District of Columbia, U. S. A. Plaintiff is his widow and resided with her husband until his death, and has since continued to reside in the District of Columbia.

"The will of Charles E. Wood gives to the widow $35,000 in cash, and also to his trustee $200,000, to be by it invested and the income therefrom paid to the widow in equal quarter annual installments during her natural life, and upon her death the principal thereof to revert to his estate. There was also given to the widow absolutely their residence property in Washington, D. C., and all the household furniture, goods, and chattels therein contained. There was also devised to the trustee named in the will two parcels of real estate in Lebanon, Ohio, in trust for the use and benefit of the widow for her natural life, she to receive the rents, issues, and profits thereof, with power in her to dispose of the real estate by will These are the only provisions for the widow made in and by the will. The will then bequeaths to relatives, friends, and former employés various sums of money, aggregating approximately $320,000. The residue of testator's estate is then given to the defendant, American Security & Trust Company, in trust for the use and benefit of the J. G. Kellogg Sanitarium, of Battle Creek, Mich., the same to be used by the trustee, under the direction of the beneficiary, in the erection and maintenance of a sanitarium at or near Atlantic City, N. J. The trustee and beneficiaries under the will are made defendants herein.

"On May 28, 1908, this will was duly probated in the District of Columbia, and administration then and there duly granted on the estate of deceased. A duly authenticated copy of said will and of the original probate thereof was duly filed, recorded, and probated in the probate court of Jasper county, Mo., on March 15, 1911, and the same, together with probate thereof, was, on March 18, 1911, recorded in the recorder's office in said Jasper county.

"Said Charles E. Wood died without issue, or the descendants of issue, surviving him capable of inheriting. Defendant Conqueror Trust Company was appointed administrator with the will annexed by the probate court of said Jasper county, and thereafter, on July 22, 1911, served upon the plaintiff notice that the real estate above mentioned was included in its inventory filed in the matter of the estate of said deceased, and of the provisions of sections 345, 351, 352, 353, 355, 360, and 361 of the Revised Statutes of Missouri for 1909. On September 9, 1911, the plaintiff filed in the probate court of said Jasper county her certificate of election to take under section 351 of said Revised Statutes her dower in said real estate absolutely, subject to the payment of the debts of deceased, and declared that she would not accept the provisions made for her in said will in lieu of her dower interest in said real estate under the provisions of said section. Said certificate of election appears on page 47 of the printed record, and was duly recorded in the office of the recorder of deeds, in said Jasper county, on September 9, 1911.

"At all times from and after the date of the execution of said will, the statute or code law of the District of Columbia relating to wills and the interpretation thereof, the widow's dower rights and election or renunciation rights relating thereto, were embodied in the sections appearing in printed record, page 19, and were substantially as follows:

"Every devise of land or any estate therein, or bequest of personal estate to the wife of the testator, shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will.

"A widow shall be barred of her right of dower in the land by any such devise or bequest, unless within six months after administration granted on her husband's estate she file a written renunciation. By renouncing all claim to a bequest of personal property made her by the will of her husband she shall be entitled to one-third part of his personal estate which shall remain after payment of his debts.

"If the will devise and bequeath a part of both real and personal estate to the wife, she shall renounce the whole, or be otherwise barred of her right to both real and personal estate.

"If the will devise only a part of the real estate, or bequeath only a part of the personal estate, the devise or bequest shall bar her of only the real or personal estate, as the case may require: provided, if the devise of both or either be expressly in lieu of her legal share of one or both, she shall accordingly be barred unless she renounce as aforesaid.

"Plaintiff never at any time filed in any court in the District of Columbia a written renunciation of her rights under said will, or any election to take under the law in lieu of the provisions of said will. She has received and holds and enjoys all the provisions of said will in her behalf, to wit, the homestead in Washington with all furniture, etc., $35,000 in cash, and the income from the trust fund of $200,000 and from the Lebanon, Ohio, real estate.

"As between the plaintiff and all defendants who appeared in answer the facts are admitted, and, as against the defendants not answering, full proof was made. The only question is whether, under the undisputed facts, plaintiff is the owner of an undivided one-fourth interest in the real estate, being one-half of the interest owned by her husband at the time of his death, subject to the payment of his debts, or whether the provisions of the will in her behalf, under the conditions stated, deprive her of her right of dower in Missouri, and to elect in what form she will take her dower, under our statutes."

Henry M. Foote, Frank W. Hackett, of Washington, D. C., and Geo. J. Grayston and A. E. Spencer, both of Joplin, for appellant. James R. Caton, of Alexandria, Va., and Kelsey & Cameron, of Joplin, for respondents.

RAILEY, C. (after stating the facts as above).

The real purpose of this action is to recover dower in the real estate located at Joplin, Mo., described in petition. On August 27, 1907, plaintiff's husband, Charles E. Wood, while a resident of the District of Columbia, made a will, in which he gave to plaintiff $35,000 in cash, and also to his trustee $200,000 to be by it invested and the income paid to plaintiff during her life. There was also given to plaintiff absolutely their residence property, located in Washington, D. C., with all the household furniture, goods, and chattels therein contained. There was also devised to the American Security & Trust Company, trustee named in said will, two parcels of real estate in Lebanon, Ohio, in trust for the use and benefit of plaintiff, for her natural life, she to receive the rents, issues, and profits thereof, with power in her to dispose of said property by will.

The foregoing are the only provisions made for plaintiff in said will. Testator died, while a resident of Washington, D. C., on February 17, 1908, without issue or the descendants of issue surviving him capable of inheriting. No real or personal property, in this state, was given to plaintiff, by said will. She filed her election on September 9, 1911, in the probate court of Jasper county, Mo., electing to take one-half of the real estate of her said husband in this state, under section 351, Revised Statutes of Missouri for 1909. Said written election also contains the following:

"And I, the said widow, do hereby further declare, under section 361 of said statutes, that I will not accept the provisions made for me in the said will of my late husband in lieu of my right of dower herein claimed under the provisions of said section 351 of said statutes."

On May 8, 1908, said will was duly probated in the District of Columbia, and administration duly granted there on the estate of deceased. On March 15, 1911, a duly authenticated copy of said will and of the original probate thereof were duly filed, recorded, and probated in the probate court of Jasper county, Mo., and on March 18, 1911, were recorded in the recorder's office of said county.

Plaintiff never at any time filed in any court in the District of Columbia a written renunciation of her rights under said will, or any election to take under the law in lieu of the provisions of said will. She has received and holds and enjoys all the provisions of said will in her behalf., to wit,...