Klocke v. Klocke

WHITE, C. The suit is in partition; the plaintiff claims, under the provisions of Section 351, Revised Statutes 1909, one-half the real and personal estate of her deceased husband, Henry Klocke, who died childless. The defendants are the sisters of the deceased, Henry Klocke. George Klocke, Henry’s father, died in 1904, leaving a will by which he gave to his widow, Wilhelmina, for life, the real estate in controversy here, with the remain — 155 — der in fee to Henry Klocke. Henry Klocke died in October, 1913, and his mother, the life tenant, died in March, 1914 The question to be determined is whether Henry’s widow is entitled to take under the provisions of section 351 property in which her husband had a remainder and of which lie was not seized at his death, the solution of the case depending entirely upon statutory construction. The sections of the statutes involved are all included in Article 16 of Chapter 2, Revised Statutes 1909, entitled, “Dower.” Section 345 gives the widow dower in all the lands of which her husband “was seized of an estate of inheritance. ’ ’ Section 346 gives the widow the right to transfer her unassigned dower. Section 350 gives the widower, where the wife shall die without child or other descendants, one-half the real and personal estate belonging to the wife at the time of her death “absolutely, subject to the payment of the wife’s debts.” The provision of Section 351, under which the claim here is made, is as follows: ! ‘ Sec. 351. When the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: first, . . . ; second, to one-half the real and personal estate belonging to the husband at the time- of his death, absolutely, subject to the payment of the husband’s debts.” Section 352 allows the widow to take a child’s part in lieu of dower in the personal and real estate where the husband dies leaving children by a former marriage. • Under Section 353: “When the husband shall die without a child or other descendant living, capable of inheriting, the widow shall have her election to take her dower, as provided in Section 345, discharged of debts, or the provisions of Section 351, as therein provided.” Section 354 provides that: “When a widow shall be entitled to dower as provided in the three preceding sections of this chapter” it shall be the duty of the executors or administrators to give notice to the widow requiring — 156 — her to file a declaration as provided in the next succeeding section. The next succeeding section, 355, provides the manner in which the widow shall elect and if she fails to elect within fifteen months she would be endowed under Sections 315, 317, and 318. The precise question presented here was decided against the contention of appellant in the case of Von Arb v. Thomas, 163 Mo. 33. But appellant, with great persistence, insists upon a re-examination of the subject in view of later decisions, which she claims give a more liberal construction in favor of the widow to the several sections of statutes relating to dower. [Keeney v. McVoy, 206 Mo. 42; Ferguson v. Gentry, 206 Mo. 189; In re Ferguson Estate, 206 Mo. 203; In re Estate of Messersmith, 264 Mo. 610.] The point made by appellant is that Section 351, giving the widow, in case the husband die childless, one-half the real and personal estate “belonging to the husband at the time of his death, absolutely,” subject to the payment of the husband’s debts, must be interpreted to mean literally what the words quoted import without reference to any other section of the statutes, so that the term “belonging to the husband” would include a remainder as well as any other estate, and “absolutely” would mean independent of any other statutory provisions. It is conceded that the plaintiff would not have dower in the real estate in this case under Section 315, because the husband had not been “seized” at the time of his death. If appellant’s counsel is correct in his interpreta.tion, that the widow is entitled to take under Section 351, absolutely, whether she have dower under Section 315 or not, then she would be entitled to take without election even if she had dower under Section 315. That is to say, she could take under both sections. • Now, it is manifest that she cannot take under both sections. These sections relating to dower must be construed in pari materia. [Keeney v. McVoy, 206 Mo. l. c. 67.] They are interdependent and relate to each — 157 — other, and under Section 353 the widow may elect to take her dower as provided in Section 345, discharged of debts, or take under the provisions of Section 351. There would be no such provision • for election if she could take both. The rights under these several sections always are mentioned in the alternative in the cases construing them; she may take one or she may take the other. [Crowl v. Crowl, 195 Mo. 338, l. c. 348; Wash v. Wash, 189 Mo. 352, l. c. 359; Wigley v. Beauchamp, 51 Mo. 544, l. c. 546-7.] However, it seems to be conceded that the widow could not take under both sections. Then the argument of appellant amounts to this: If the widow have not dower under Section 345, Section 351 must be given a literal meaning uninfluenced by other sections; but if she have dower under section 345, then section 351 must be construed in connection with section 353. That is, the words, “shall be entitled to one-half the real and personal estate belonging to the husband at the time of his death, absolutely,” will signify one thing at one time and another thing at another time. The widow would have one-half his estate without condition if she have no dower under Section 345, and she would have it conditioned upon an election if she have dower under Section 345. This court in late cases has called the interest which she gets under Section 351 doiver. For instance, in the case of Adams v. Adams, 183 Mo. l. c. 408, Judge Marshall speaking for this court says: “Election-dower, under Section 2939, Revised Statutes 1899 (now 351), is a creature of our statute and differs in many respects from the dower allowed under Section 2933 (now 345). The principal difference is that ordinary dower is one-third of the estate, for life, freed from liability for debts, while election-dower is one-half, absolutely, subject to debts.” In the case of Keeney v. McVoy, 206 Mo. 42, upon which appellant relies, where this court considered at great length the subject of the widow’s rights in her de — 158 — ceased husband’s property, this Section 351 came incidentally under consideration. In speaking of it Judge Lamm; says on page 55: “Commencing with common-law dower as a basis, the statute gives the widow' certain optional rights to better her condition.” And on the same page: “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.” Thus it is certain that she takes under Section 351 only by election. The term “absolutely” as used in that section refers to the estate she takes independent of other claims. It does not mean that she shall take it absolutely, independent of conditions in taking it. That is to say, when she takes it she takes it absolutely, but she cannot absolutely take it.' It is argued by appellant that inasmuch as the phrasing of Section 350 and Section 351 are exactly the same they should receive the same interpretation, and it is pointed out that this court has construed Section 350, holding that the husband takes under it independent of any election, whether he is entitled to curtesy or not. But in the case of Perry v. Strawbridge, 209 Mo. 621, opinion by Judge Graves, it was said on page 630 in construing Section 350: “It is earnestly pressed by counsel that under Section 2938, Revised Statutes 1899 [350], the husband cannot take unless he would have been entitled to curtesy. They contend that Sections 2938 [350] and 2939 [351] are companion sections and inasmuch as we have held under the latter that the wife cannot take unless .she was entitled to dower, we should hold that the husband cannot take unless he was entitled to curtesy. ’ ’ On the same page as the passage quoted the court calls attention in express terms to the reason why the statutes are construed differently; that is, because Section 353 provides hoiv she shall take under Section 351. Obviously, if that is her election dower and she cannot acquire it except by election, then of course she — 159 — conld not have it unless she have some, other right between which and this she may elect. The very term “election” or “right of election” implies alternative rights between which the party electing may choose. She could not elect to take under Section 351 unless she had dower under Section 345. The Legislature evidently understood it that way because the language of the section, 354, setting forth how she may elect, starts out with the words: “When a widow shall be entitled to dower, as provided by the three preceding sections [351-2-3] of this chapter.” We see no reason for refusing to follow the ruling in the Yon Arb case. We conclude that the .widow, having no right to dower in. the property under the provisions of Section 345 could acquire no right under Section 351. The judgment is affirmed. Boy, C., concurs. PER CURIAM. — -The foregoing opinion by White, C., is adopted as the opinion of the court. All the judges concur.