Sparks v. Dorrell

NIXON, P. J. The question involved in this case is whether, under the facts and circumstances presented by the record, the representative of the widow of H. M. Simcox, deceased, is entitled to take the personal property provided by the will of IT. M. Simcox and also — 183 — statutory dower under section 2939, Eevised Statutes 1899, or whether the two rights are so inconsistent and incompatible' as to require an election by the widow. Section 2948, Eevised Statutes 1899, provides that if any testator shall by will pass any real estate to his wife, such devise shall be in lieu of dower out of the real estate of her husband. It is apparent on the face of this statute that its provisions are restricted to real estate and in no wise impair any rights that the widow may have in the personal property of the testator. This section is' followed by section 2949 which provides for an election on the part of the widow by a renunciation of the provisions of the will, provided she desires to be endowed otherwise then under the terms of her husband’s will. Section 2933 is a provision for the widow’s dower and enacts that she may be endowed of a third part of all the lands whereof her husband died seized. This is' a provision which protects what is called her common law dower in real estate, and; has no relation whatever to any dower or other right of the widow in the personal estate of her deceased husband. Under the provisions of section 2939', the widow, in case the husband dies without children, may be endowed, first, of all the real and personal property which came to him in right of the marriage, and the personal property which came to him with the written assent of the wife undisposed of; second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of her husband’s debts. Section 2941 provides for an election by the widow by virtue of which she is allowed to take her dower as provided in section 2933 — which is a dower in real estate — discharged of debts, or, under the provisions of section 2939, that is, one-half of the real and personal estate, absolutely, subject to the payment of the husband’s debts. None of the enumerated sections of the statutes make any specific provision that the widow shall make — 184 — an election in any case in which she claims the right to personal property in her husband’s estate. They are confined exclusively to her interests in real property, and the effect is to change the rule of the common law in cases of devise of real estate. At common law, a devise of real estate by a husband to his wife was held to be in addition to dower unless the terms of the will expressed or necessarily implied the intention to exclude the right of dower. This rule of the common law as to real estate was changed by the provisions of our statutes. [Schorr v. Etling, 124 Mo. l. c. 46, 27 S. W. 395.] But as to the personal property, the beneficent spirit of the common law remains in full force and effect. It follows that unless the intention of the testator is expressed in his will to exclude the widow’s rights in other personal property, they will not be excluded, and she can claim both the benefits given her by the law and those given her by her husband’s will. Where a husband dies childless, his widow, under section 2939, Revised Statutes 1899', may take one-half of his personal property, subject to the payment of his debts, and is not required, in order to 'do so, to file her election according to the provisions of section 2943. The election required by that section relates only to dower proper, that is, dower in real estate, and does not apply to the personal estate. [Brown v. Tucker Estate, 135 Mo. App. 598, 117 S. W. 96.] In the case at bar the executor of the estate of Lulu Simcox Howell made claim in the probate court for the entire estate, personal and real, of H. M. Simcox, deceased, claiming both under the will and under the law. But, after the appeal, when the case was tried in the circuit court, the executor amended his petition and changed his claim to one-half of the intestate propex'ty. While the change of the petition bespeaks the modesty of the claimant, it does not change the law or in any way impair the rights of the deceased widow. If the right was given her by the statute, sec — 185 — tion 2939, to one-half of the entire estate of her deceased husband, by reason of his dying childless, subject to debts, then such right became vested, whether he died testate or intestate, and could not be shifted by any election to take only one-half of the personal property not disposed of by will, as the election that the widow was required to make is between rights, not between benefits. The will under consideration makes no provision that the legacies given to the widow, or other provisions in the will for the widow, should be in lieu of statutory dower or otherwise. The question, therefore, whether the bequests made to her are a bar to her right to dower in the residue of the personal property must depend upon the meaning and intent of the will of the husband upon consideration of all its provisions. If it is manifest from a fair construction of all its terms that the testator intended the bequests to be in lieu of dower, then the widow must make her election, and she cannot accept the bequests under the will and also claim dower as allowed by law. [Pemberton v. Pemberton, 29 Mo. 408.] In the Pemberton case, Judge Scott approvingly quoted the language of Judge Marshall.: “It is a maxim of a court of equity not to permit the same person to hold under and against a will. If, therefore, it be manifest, from the face of the will, that the testator did not intend the provision it contains for his widow to be in addition to dower, but to be in lieu of it; if this intention, discovered in other parts of the will, must be defeated by ■the allotment of dower to the widow, sbe must renounce either her dower or the benefit she claims under the will.” The doctrine of election as applied to wills is founded upon the principles of equity jurisprudence, that one who is the recipient of a beneficial interest under a will is assumed to have ratified its other recitals; that a devisee cannot take under the will and against it, but is put to an election. The principle as thus announced is, that he who accepts a benefit un — 186 — der a will must adopt all its contents and conform to all its provisions and renounce every right incompatible or inconsistent with it. [Story’s Equity, section 1077; 7 German on Wills, 386; Schley v. Collis, 13 L. R. A. 567; Hasenritter v. Hasenritter, 77 Mo. 162.] H. M. Simcox left an estate consisting of personal property of the value of $30,000, and real estate, including the homestead, of the value of $3000'. By his will H. M. Simcox devised all his real estate,-valued at $3000', and bequeathed household goods and other property valued at $398, and $15,000 cash to his widow, Lulu Simcox, a total of $18,398. Other bequests were made as follows: To G. B. Dorrell, son-in-law, $2000', and a horse appraised at $100, to Ralph Simcox, nephew, $1000'; to Mary Whittaker, sister, $500’; to William Simcox, nephew, $500; to J. C. Zink, nephew, $500; to W. T. Zink, nephew, $500'; to Margaret New-all, niece, $500; to Maple Park Cemetery, $50; and property consisting of former wife’s clothing, pictures, etc., to three sisters of former wife, appraised at $35; total $5685;- making a total devised and bequeathed of $24,083, or leaving a residue of $8917 undisposed of by said will, subject to the costs of administration and the widow’s $400 statutory allowance and her one year’s support. On application made by the widow, soon after her appointment as executrix, the following property was claimed by and delivered to her under and by virtue of terms of the will: All the real estate, valued at $3000; legacies under the will; $15,000; legacy, household goods, etc., $398; statutory allowance,' $400; allowance for one year’s support, $800 ; total received by the widow, $19;598. It appears from this statement that the total personal estate of the testator was $30,000'; that the specific legacies and bequests to parties named in the will other than the wife .was $5685; that the widow received out of the personal estate in bequests made to .her by her husband, together with other allowances, $16,598. If, in addi — 187 — tion to this, she be allowed to take under section 2939, Revised Statutes 1899, the full one-half of his personal estate, absolutely, subject to debts, she would receive in addition to what was given her under the will a further sum of $15,000, making a total amount of $31,508, or the sum of $1598 more than the entire personal estate, without deducting any sum for costs of administration. Under this condition of the estate, it is apparent that if this rule of construction of the law should he applied and enforced, the other legatees enumerated in the will (by which will the testator bequeathed other specific legacies amounting to $5685) would receive nothing by its provisions, and to that extent the full operation of the will of the testator would be impaired and defeated. We therefore find that some of the provisions of the will are absolutely inconsistent and incompatible with the widow’s claim of statutory dower, and that its provisions as to other legacies would be totally defeated if she were endowed under the statute with one-half of the personal estate and also allowed to take under the will. The provisions of the will and allowances of the statute as to dower (section 2939) being inconsistent, the widow was put to an election between the two, and having elected to take under the will, she has received her full share of her husband’s estate given her by the law. The judgment of the trial court, being for the right party, it is hereby ordered that it be affirmed. All concur.