Hornsey v. Casey

Scott, Judge, delivered the opinion of the court. The right of election in the wife, exercised and carried out as has been practiced in this case, would be productive of great injustice to purchasers. The rights of a purchaser should not depend on any secret intent of his vendor which is not communicated to him, and of which he has no knowledge. No case has arisen, where the marriage continued until it was dissolved by death, in which the wife complained that her right of election had been affected by any disposition of his property made by her husband in his lifetime, and we see no reason why the divorced wife should be in a better situation than the wife who continued such until the dissolution of the marriage by death. The case of Stone v. Stone, (18 Mo. Rep.) was founded on a complaint that the disposition of his property by the husband had defeated the right to dower, not merely the right of an election. The same remark is applicable to the case of Davis v. Davis, (5 Mo. Rep.) In giving the right of election to take 548 one half of the property undisposed of, the law never intended to impose any restraint on the husband’s right of disposition» A mere right of election on a contingency, gives no such interest as will authorize the party entitled to the election to complain that the contingency has been prevented on which the right of election arises. The law gives as dower the right to one third of the husband’s estate, in all lands possessed during the coverture. On the contingency of the husband’s dying without children, the widow may elect instead thereof to take one half of the estate absolutely, of which no disposition has been made.. Now, it is- unreasonable to expect that the husband’s right of disposition should be restrained in order that there may be a foundation for the right of election. On what principle can the widow- make an election of the half of the property which remains undisposed of, and then turn round and complain that property had been disposed of which should not have been ? To yield to her complaint would be giving her an election, not to take the half of what is undisposed of, but the half of all that the husband was seized of during the cover-ture. The widow is not bound to make an election. The law has made provision for her without an election. If the actual existing state of things do not justify her in making an election, she should not resort to it. She cannot be allowed to make an election which confines her to the half of the property undis-posed of, and then be permitted to turn round and say, “ there is not as much undisposed of property as there should be; my husband should not have disposed of this or that tract of land.’' In the present state of the case, we will not determine whether the wife is barred of her dower, consisting of a life estate in one third of the land in controversy, by reason of her deed of election. The judgment will be reversed, and the cause remanded ; the other judges concurring.