Cassity v. Pound

MARSHALL, J. This is a proceeding by the executor of Presley Pound, under section 4546, Revised Statutes 1889, to have the homestead set apart to the defendant, and also to have the dower of the defendant in the lands of the deceased admeasured and set apart to her. The defendant renounced the provisions of the will in her favor and elected to take homestead and dower. In her answer, she alleged that the homestead was untenantable, and that she had abandoned her rights-to it as a homestead (there were no minor children), and she further asked to have the value of her dower interest computed and paid to her in cash, instead of assigning her dower in kind, but the trial court, on motion of the plaintiff, struck out those parts of her answer, and tried the case upon the theory that she was entitled to homestead and dower both. In his reply, the plaintiff averred that since the institution of this suit, the defendant had sold and conveyed all her right,' title and interest to John M. Pound and James S. Pound, and that she no longer had any interest in the subject-matter. The court entered judgment that the defendant was entitled to homestead and dower, and appointed commissioners to set apart the same to her. The commissioners reported that they found that the estate consisted of certain real estate, and then added: “And after a careful examination of the property we fixed the value of the property as follows, to-wit: On the hotel building (two-fifths interest) in block 26, Linneus........................ $1,400 Wanck building and hall, block 27, Linneus... . 1,500 2 store buildings, block 20, Linneus.......... 3,000- [609] Eesidenee, block 11. Linneus, G. A.........$ 700 Bucldin storehouse lot, block 4, Bucklinville. ... 451 520 acres of land in sections 7, 8, 17 and 18, township 59, range 20, Linn county........ 13,520 Total valuation of the real property......$20,571 “Of which we admeasured and set apart the dower interest of Mary M. Pound, widow of Presley Pound, deceased, the. following described real estate to-wit: 1. Lots 6, 7, 8 and 9, in block 11, in Guitar’s addition to the city of Linneus, valued at. . $700- 2. Also the west half of the southeast quarter of ■ - section seven, and the southeast quarter of the southeast quarter of section seven, and all that part of forty acres off the south side of the southwest quarter of section eight lying west of the Chicago, Burlington and Kansas City railway and that part of the northwest quarter of section seventeen, lying west of the line of the Chicago, Burlington and Kansas City railway track, the two latter tracts supposed to contain about thirty acres. Also the east half of the northeast quarter of section eighteen, all in township fifty-nine of range twenty, in Linn county, Missouri, containing 230 acres more or less, valued at $6,157 Total valuation of dower.........,..... $6,857 As a dower and homestead in said estate. All of which is respectfully submitted. Witness our hand, this twenty-seventh day of January, A. D. 1899.” The plaintiff excepted to the commissioners’ report, thé [610] circuit court overruled the exceptions, and entered judgment confirming the report. The plaintiff, after proper steps, appealed to this court. I. Only one question is presented for review by this record, to-wit, does the report of the commissioners conform to the requirements of section 5M0, Revised Statutes 1889 ? That section of the statutes is as follows: “The commissioners appointed to set out such homestead shall, in cases where the right of dower also exists, also set out such dower, and they shall first set out such homestead, and from the residue of the real estate of the deceased shall set out such dower, but the amount of such dower shall be diminished by the amount of the interest of the widow in such homestead; and if the interest of the widow in such homestead shall equal or exceed one-thjrd interest for and during her natural life, in and to all the real estate of which such housekeeper or head of a family shall have died seized, no dower shall be assigned to such widow.” The plaintiff contends that the commissioners violated this statute by not first setting apart the homestead, and then a Tinting dower out of the residue of the estate, diminishing the dower by the amount of the interest of the widow in the homestead. The report of the commissioners shows that they first ascertained the value of all the land, including the homestead, to be $20,571. Then they' found the value of the homestead to be $700, and they set that apart to the widow. Then they found that one-third of the total estate would amount to $6,857. So they deducted the value of the homestead ($700) from $6,857, which left $6,157, as the amount she was entitled to as dower, and thereupon set apart and assigned to her, as dower, in kind, other property of that amount. [611] Thus the widow was allowed as dower one-third of the' whole, diminished by the value of the homestead. The dower 'plus the homestead is exactly equal to one-third of the whole. Anri this was in accordance with the provisions of section 5440, Revised Statutes 1889. The plaintiff’s contention that the statute was not obeyed is, therefore, dispelled by the face of the report itself. And the method pursued by the commissioners is substantially the same that was approved by this court in Gore v. Riley, 161 Mo. 238. There is no evidence presented by this record to show whether the commissioners took the actual value or the rental value as a basis of computation. So there is no merit in the contention that the rental and not the actual value should have governed. But this contention is without merit for the further reason that the actual value is the true value. The rental value is only one method of finding the actual value. Neither is there any merit in the reply that Mrs. Bound sold her right, title and interest after the institution of this suit. Section 4514, Revised Statutes 1889, expressly permits a widow to transfer her unassigned dower interest and permits the assignee to maintain an action for the admeasurement of such interest. The defendant acquiescéd in the -ruling of the court in striking out the parts 'of her answer alleging abandonment of her homestead rights and asking to be paid the value of her dower interest in cash, instead of having it set apart to her in land, so that those questions are not open to review now. The judgment of the circuit court is right and is affirmed. All concur, except Valliant, J., absent.