Coleman v. Coleman

BROADDUS, P. J.

-On March 10, 1904, William H. Coleman of Moniteau county died testate, leaving as his widow, Gertrude W. Coleman, the plaintiff, and no lineal heirs at law. He willed to his wife his homestead in Tipton with all the household and kitchen furniture therein and $8,000 in cash. The widow formally renounced the provisions of the will and elected to take her estate under the provisions of section 2939, Revised Statutes 1899.

After her election, plaintiff instituted a suit in partition making the other legatees of the will parties thereto. There was a judgment and sale of the real estate mentioned which realized, after payment of costs, the sum of $4,128.70. Plaintiff asked the court to make the following order of distribution: “That she be given $2,064.35, one-half the amount of the fund absolutely under said section, and that from the other half the sum of $1,500 be deducted as her homestead estate, and that she be given the present value thereof according to the provisions of the Session Acts of Missouri, 1903, pages 106 and 107.”

The court instead of complying with the prayer of plaintiff adjudged that the sum of $1,500 be deducted from the entire amount on hand for distribution and placed in the hands of a trustee to be appointed' by the court, the interest to be paid plaintiff during her life or widowhood, and upon her marriage or death to be paid to the heirs of the testator, William Coleman; and that *718 one-half the remainder of the amount for distribution after deducting said sum of $1,500, to-wit, the sum $1,814.35, be paid to plaintiff absolutely. The plaintiff appealed.

The plaintiff’s theory is that she was entitled to one-half of the whole amount of the fund absolutely and a homestead right of $1,500 out of the remainder. The Supreme Court, in cases where the widow was entitled to both homestead and dower, holds that the widow and minor children are entitled, first, to have real estate set out for a homestead of the value of $1,500, and then in admeasuring her dower there should be added to that as much more so as to make the sum of the two equal to one-third of the deceased’s real estate. The decisions of the court follow the direction of the statute. [Gore v. Riley, 161 Mo. 238 ; Graves v. Cochran, 68 Mo. 76 ; Bryan v. Rhoades, 96 Mo. 485 ; Cassity v. Pound, 167 Mo. 605 .] But it is held otherwise where the widow inherits absolutely one-half the estate of her husband, in which instance she is entitled to have allotted to her; first, one-half of the realty absolutely, and then homestead to the value of $1,500 in the remainder. [Adams v. Adams, 183 Mo. 396 ; McFadin v. Board, 188 Mo. 688 .]

The plaintiff is Avrong in her contention that she is entitled to a sum 'in gross equal to the present value of her interest in the homestead estate. Section 1, “Relating to computation of present value of life estate,” etc., Acts of 1903, p. 167, does not include a widow’s interest in her homestead. The statute comprehends within its terms only tenants for life, curtesy and dower. The widow’s interest in the homestead is not an unqualified life tenancy. It may or not be. If she should marry, her tenancy ceases. [R. S. 1899, sec. 3620.]

Cause reversed with directions to enter judgment for plaintiff in accordance with this opinion.

All concur.