Price v. Woodford

Wagner, Judge,

delivered the opinion of the court.

This was an action commenced in the Circuit Court of Johnson county, by the heirs of Humphrey W. Marshall, deceased, the general object and nature of which was to obtain partition of certain real estate of which said Marshall died seized, and also to have dower, according to the first section of the act concerning dower, assigned to the widow.

The petition alleged and set forth the title of Marshall in the premises; that he died without children, and that the plaintiffs were his heirs at law; and that he left a widow surviving, who subsequently intermarried with one Julius Woodford. Both Wood-ford and wife are made defendants. The defendants, Woodford and wife, answered, stating that Marshall died on the 4th day of July, 1861, intestate, leaving the defendant Mrs. Woodford surviving as his widow, and without children; that letters of administration were granted on his estate-on the 8th day of July thereafter, but that no notice was served or caused to be served by the County Court on the widow, apprising her of her right and requiring her to file her declaration of, election, according to the provisions of section 10 of chapter 56 of the Revised Code of 1855. They further averred that the petition for partition was filed on the 19th day of February, 1866, and that, on the 11th day of April ensuing, before the filing of the answer, Mrs. Woodford, in conjunction with her husband, made her declaration, duly acknowledged, electing to be endowed, under section 5 of the statute in relation to dower, and filed the same in the office of the clerk of the County Court. The facts stated in the pleadings stand admitted. The case, then, involves a construction of the statute where the County Court has failed to give the notice to *252 the widow requiring her to elect, and she has neglected to make the election within the prescribed time. There is some difficulty in meeting this question, and, whichever way it is decided, it will doubtless impose some injury! The statute has made very liberal provisions in regard to the endowment of the widow, and the right of dower was always highly favored by the common law. Under section 1 of the statute no election is necessary; and upon the death of her husband, by virtue of the provisions of that section, her estate becomes vested and complete. But subsequent sections enlarge her interests and change the character and nature of her title, but certain conditions and limitations are annexed. The fifth section, under which the right is claimed, provides that when the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled, first, to all real and personal estate which come to the husband in right of the marriage remaining undisposed of, absolutely; second, to one half of the real and personal estate belonging to the husband at the time of his death, absolutely. By section 9 it is declared that, when a widow shall be entitled to dower as in the above section, it shall be the duty of the County Court of the proper county, when letters testamentary or of administration have been granted, to cause a notice to be served on such widow apprising her of her right and requiring her to file her declaration within the time and according to the provisions of the nexi succeeding section. The next succeeding section (10) provides that such election shall be made by declaration in writing, acknowledged before an officer authorized to take the acknowledgment of deeds, and filed in the office of the clerk of the court in which letters testamentary or of administration shall have been granted, within twelve months after the grant of the same ; otherwise she shall be endowed under the provisions of the first section, etc. In the case of Welsh v. Anderson, 28 Mo. 293 , Judge Scott, in delivering the opinion of the court, seems to intimate, though the point was not in the case and the remark was a mere dictum, that if, through any fraud or contrivance of those interested in an estate, the widow was prevented from making an election, they would not be permitted to reap the fruits of their misconduct. But it was there decided that *253 an election could only be made in the manner prescribed by law. The right of election is a statutory privilege, conferring new and important benefits, and outside of the statute has no existence. It must therefore be exercised in substantial compliance with it.

Now, the law expressly declares that if the election is not made, and the declaration properly acknowledged and filed, within twelve months from the granting of the letters, the right shall not exist, but the widow shall be endowed under a different section. This language is express and positive; but it is insisted that the widow is not barred, by a fair and reasonable interpretation of the statute, till the court has performed its duty and caused the requisite notice to be given apprising her of her rights. That the court should act as the law enjoins, and cause the notice to be given, is unquestionable; but, in case of neglect or failure to do so, will-it leave the right of election open, and.unsettle the title to the estate for an indefinite period ? Recause for convenience and as a favor to the widow the Legislature directed that the court should cause the notice to be given, it is not to be presumed that they intended to abrogate the maxim that every person is presumed to know the law. If the notice is held to be absolutely a condition precedent to any barring of the widow’s right of election, it will have a tendency to unsettle and prevent the vesting of titles.

Suppose no notice is given, and the widow fails to assert her rights for a long period of time, and the situation of the parties claiming title has become changed, can she be permitted to come in at pleasure and claim the privilege of the statute ? The statute' declares that the court shall cause notice to be given, but it does not say that, in case of neglect or refusal to do so, the time shall be indefinitely lengthened. The election on the part of the widow would be just as valid, if made within the prescribed time, where no notice was given at all. And where statutes direct certain proéeedings to be done in a certain way or at a certain time, and a strict compliance with their provisions of. form and time, does not appear essential to the judicial mind, the proceedings are held valid, though the command of the statutes is disregarded or diso» beyed. The statutes in such cases are held to be directory only, (Sedg. Stat. Law, 368.)

*254 In an early ease Lord Mansfield said: “There is a known distinction between circumstances which are of the essence of a thing required to he done by an act of Parliament, and clauses merely directory. The precise time in many of the cases is not of the essence.” (Rex v. Loxdale, 1 Burr. 447.)

So, where a marriage act declared that “ the consent of the father,” etc., “ is hereby required for the marriage” of a child under age, the words were held directory only — the Lord Chief Justice Tenterden saying:. “The language of this section is merely to require consent; it does not proceed to make the marriage void if solemnized without consent.” (Rex v. Birminghafii, 8 Bam. & Cress. 29-35.)

I think that the section providing that the court shall cause notice to he given is directory only, and that a failure to comply with thjs statutory requirement will not have the effect of enlarging the time within which the widow must make her election; and the Circuit and District Courts having found against her claim,' their judgment will be affirmed.

The other judges concur.