Landis v. Hawkins

HIGBEE, P. J. This is an action for partition. Tbe petition, filed October 23, 1918, states in substance that John M. Hawkins died June 17, 1917, intestate and without issue, seized in fee of 41 acres m Monroe County, leaving bis widow, Willie A. Hawkins, and seven brothers and sisters surviving him as bis only heirs; that tbe widow, on July 12, 1917, duly executed and filed in tbe Eecorder’s office ber election to take one-half of all tbe real and personal estate of ber deceased husband, according to tbe provisions of Section 351, Eevised Statutes 1909, and thereafter, on October 8, 1917, she conveyed *166 all her interest in said real estate to plaintiff; that Henry M. Hawkins, a brother of the deceased, also conveyed his interest in said land to plaintiff,- and that by reason of the foregoing plaintiff is entitled to eight-fourteenths of said real estate and the homestead interest of Willie A. Hawkins, and that the defendants, the other brothers and sisters of the deceased, are each entitled to one-fourteenth interest therein; all subject to said homestead. The answer denies that the widow made a valid election to take one-half of the real and personal estate of her deceased husband, and avers that the defendants are each entitled to an undivided one-seventh interest in said land, subject to the homestead of the widow, and that the plaintiff is entitled to a one-seventh interest (being that purchased from Henry M. Hawkins) and that he is the owner of the dower and homestead int,crest of the widow, but admits all the other averments of the petition. The court found the facts as stated in the petition and rendered an interlocutory judgment for partition and for the sale of the land as prayed in the petition, from which the defendants appealed. On the trial plaintiff offered in evidence the widow’s declaration of election, to which the defendants objected on the ground that it showed on its face that it was executed and-filed in the Recorder’s office “before any administration opened; shows on its face that it was filed after the administration closed and after the time for filing in the probate court expired. ’ ’ Penn Brace, probate judge, was called by the plaintiff and testified that he wrote the declaration and took Mrs.' Hawkins’s acknowledgment thereto on July 12, 1917; that letters of administration were issued July 30, 1917, and the declaration was filed in the Recorder’s office July 12th, the day it was executed. “It was actually filed in the probate court July 30, 1917, the day that the letters were taken out; the mark was put on the paper the other day. It was last Monday.” The declaration was then read in evidence over the defendants’ objection. *167 The declaration was endorsed as filed in the probate court July 30, 1918. Judge Brace, being recalled, testified that Mrs. Hawkins, who was in feeble health, and Mr. Hayden, who was looking after her business in all matters, came to his office July 12, 1917; they estimated the amount of the personal estate of the deceased would not be more than what the law allowed the widow as her absolute property. No administration was contemplated at that time. “I suggested the filing of this election, and it was on that advice that it was filed in the Recorder’s office. Judge Hurd was in the office, I think last Saturday, and was looking for this paper, and I had changed the papers when the final settlement was made before distribution and it was in the box where originally kept. I then discovered there was no filing mark on the paper, although it had been lodged in the office at all times during the administration and was before the court and the court had cognizance of it at all times. Mr. Fuller discovered this fact. At his suggestion on last Jdonday, the court being in session, I made an order on my minutes ordering this to be filed as of July 30, 1917, at which time it was lodged in the court. Mr. Hayden left it with me on July 30, 1917; filed there to go into the record of the court. It was then in my possession officially as probate judge and with the papers on that date.” By Judge Hurd: “Q. Well then, you don’t remember whether this was delivered to you before the 30th of July or not? A. It positively was, but not in my official capacity. “Q. Did you ever have a request from Mrs. Hawkins to file that election in your court? A. I take it that I did.. The filing mark 1918 is an error; it should be 1917.” This is a fair summary of all the evidence. *168 Filing Before Letters. *167 I. Under Section 321, Revised Statutes 1919 (Sec. 351, R. S. 1909, as amended Laws 1913, p. 90), Mr. Hawkins having died without issue, his widow had a vested *168 right to elect to take one-half of the real and personal estate belonging to her husband at the time of his death, subject to the payment of his debts. Section 325, Revised Statutes 1919, (Sec. 357, R. S. 1909), requires the declaration of election to be filed in the office of the clerk of the court in which letters testamentary or of administration shall have been granted within six months after the grant of same; and such declaration shall also be filed in the Recorder’s office of the county in which letters testamentary or of administration were granted within nine months after the grant of the same, otherwise the widow shall be endowed under the provisions of the preceding sections of Article 15. It is contended by the appellant that the widow’s election is unauthorized and void under the statute, it having been made and filed in the Recorder’s office before the granting of letters of administration. In other words, it is contended that the true meaning of the statute is that the right of election is suspended and must wait upon the granting of letters testamentary or of administration, and that the declaration is a nullity if filed before their issue. We cannot agree to this theory. Section 2, Revised Statutes 1919, provides that the probate court may refuse to grant letters of administration on the estates of deceased persons not greater in amount than is allowed by law, as the absolute property of the widower, widow or minor children under the age of eighteen years. At the time Mrs. Hawkins made her election the probate court, having this section in view, did not contemplate the granting of letters. They were issued a few days later at the instance of the brothers and sisters of the deceased. *169 In many instances the heirs of deceased persons prefer to settle estates without the annoyance and expense of an administration. This they have a perfect right to do. In all such cases, if appellant’s contention Be right, it would follow that the widow’s right of election woüld be cut off. The statute is remedial and should be liberally construed so as to accomplish its evident purpose. The common sense construction of Section 325 is that it is a statute of limitation. This court has 'so construed this section of the statute. In Keeney v. McVoy, 206 Mo. 42, l. c. 60, Lamm, J., said: “These statutes may be said, in a sense, to be statutes of limitation on a widow’s right to elect. The limitation begins to run when letters of administration are taken out on her husband’s estate, and ends twelve or,fifteen months thereafter.” At page 55, Judge Lamm also said': “It has been aptly said that the part taken by the widow under her right of election is her ‘ election dower, ’ i. e., her dower from choice as distinguished from her dower without choice. [Citing cases.] And, as has been said, we see no reason why the grace and favor of -extremely liberal construction, indulged in aid of common law dower, may not be indulged in aid of election dower; nor why an illiberal and sour construction should he invoked to defeat the latter any more than the former. The law favoreth life, liberty and dower. [14 Bac. 345.] And election dower may well repose in the bosom of this friendly maxim. ” Appellant’s contention is too technical. It would, in many instances, thwart the very purpose of the statute. Qui haeret in litera, haeret in cortice. Date of Filing: Erroneous indorsement. II. It is also contended that the declaration of election was not filed in the office of the clerk of the probate court, within the statutory period. The evidence is clear that it was filed in that office on July 30, 1917, notwithstanding the fact that Judge Brace-failed t0 g0 indorse it at the time. It was filed when it was lodged m the proper office with the intention that it should become operative as an election under the statute. Nor does *170 the fact that Judge Brace thereafter, by mistake, indorsed a wrong date of filing on the paper preclude plaintiff from showing the true date. Judge Brace had the right, when he discovered the error, to correct it so that it would speak the truth. [Grubbs v. Cones, 57 Mo. 83; State v. Pieski, 248 Mo. 715, 719.] The objection to the admission of the declaration in evidence was properly overruled. No other errors are complained of in appellant’s brief. The evidence clearly warranted the learned trial court in finding the issues for the plaintiff. The judgment is affirmed and the cause remanded for further proceedings. All concur.