Hasenritter v. Hasenritter

Sherwood, J. In Hastings v. Myers, 21 Mo. 519, it was held that the right of a widow to $200 worth of personal property was absolute, did not depend upon her election, and vested immediately upon the death of her husband. This ruling was based upon what is now sections 35, 36 and 37, page 88, Wagner’s Statutes, and it was followed in Cummings v. Cummings, 51 Mo. 261. The present application is based not only on the section referred to, but upon section 33 of the same article, which declares that “ in addition to dower, the widow shall be allowed to keep, as her absolute property, a family bible, * * all grain, meat, vegetables, groceries and other provisions on [165] hand * * not to exceed the value of $500.” And section 34 next thereafter, provides that if such grain, meat or other provisions shall not he on hand at the time of making the inventory, the court shall make a reasonable appropriation out of the assets of the estate to supply such deficiency. It seems quite clear that a construction equally favorable to the widow should he given section 33. And this is especially true, as that section declares in express terms that the* property therein mentioned shall be the absolute property of the widow, i. e., requiring no election on her part, in order to secure it. This being true, it must needs follow that the property or the proceeds thereof, claimed in the present application, were not subject to be disposed of by the will of the applicant’s deceased husband. In Bryant v. McCune, 49 Mo. 546, where the testator bequeathed to his wife a large amount of both real and personal property to hold during her life, and she having died a contest arose as to who was entitled to the property embraced in section 33, supra, it was said: “ The argument then, that the property was disposed of by the general language of the will, and that she took only a life estate in it under the will, has no foundation in fact. It is urged that the testator must have intended that his wife should receive and hold what was given her by the will in lieu of dower and in lieu of her statutory right to the property in dispute. But there is no indication in the will that the wife was expected to surrender anything, and in the. language of Gardner, J., in Sheldon v. Bliss, 8 N. Y. 31: “ It is an established principle that a provision in the will of the husband in favor of the wife will never be construed by implication to be in lieu of dower, or any other interest in his estate given by law; the design to substitute one for the other must be unequivocally expressed.” There are no such unequivocal expressions in the will of the testator in the case at bar. We might presume, we might surmise, that the testator intended in his will to dis [166] pose of his property in the manner defendant asserts, but this is no case for surmises or presumption. The cases cited are consequently decisive of this one, and, therefore,, judgment affirmed. All concur.