Waters v. Herboth

VALLIANT, J.

Appellant was the husband of Virginia E. Herboth, who died in 1897, without ever having had a child, leaving a will purporting to dispose of all her property. When the probate court came to make a final distribution, the husband claimed one-half the estate, in spite of the will, by virtue of the act of the General Assembly entitled, “An Act to amend chapter 55 of the Revised Statutes of Missouri, 1889, entitled ‘Dower,’ by adding a new section thereto to be known as section 4518, ’ ’ approved March 2, 1895. The matter was carried by appeal to the circuit court, where the judgment was adverse to the husband’s claim, that court holding that the Act of 1895 was unconstitutional. The husband appeals.

Before the matter came on for final distribution in the probate court, the husband, as executor, had instituted in the circuit court a suit against the distributees and legatees, the object of which was to obtain an interpretation of the will. That suit resulted in a decree to the effect that the will did not recognize the right of the husband to one-half the estate under that statute, but did recognize the possibility of such a right, and provided that a legacy therein of $1,500 to him, and a release therein directed of a deed-of-trust debt for $2,000 which he owed the testatrix, should be conditioned on his not being entitled to one-half the estate under the *170 statute, and that if it should turn out that he was so entitled and claimed it, then the legacy of $1,500 and the release of the $2,000 debt should become void. It was also declared by the decree that the will expressly gave the husband, in addition to the $1,500 legacy and the release of the $2,000 debt, all that part of the estate that he would have taken, if there had been no will, under the act of the General Assembly of date April 8, 1895 (Laws 1895, p. 35), which is now section 111, Revised Statutes 1899, in the chapter on Administration. There was no appeal from the decree, and it is to be taken as the final adjudication of that subject. It was after the decree in that case that this cause came on for adjudication of the rights of the parties on the final distribution of the estate, when, as above said, the circuit court held that the Act of March 2, 1895, was invalid and that the husband was entitled to only what the will gave him, hence this appeal.

In O’Brien v. Ash, 169 Mo. 283 , the constitutionality óf the Act of March 2, 1895 (Laws 1895, p. 169), which is now section 2938, Revised Statutes 1899, was in question and the court decided that the act was constitutional and valid. That decision by this court was not rendered before the judgment of the circuit court in this case. The case of O’Brien v. Ash was twice argued before us and the question of the validity of the statute was fully considered. We have followed the argument of the learned counsel for respondents in the case now before us, but we see no reason to change our views on that question as expressed in O ’Brien v. Ash.

It is urged, however, on the part of respondents, that conceding the act in question to be constitutional, still, it must be read in connection with section 4603, Revised Statutes 1899, which gives the right to a woman to dévise and bequeath her estate “by her last will and testament, subject to the rights of her husband, if any, to his curtesy therein.” The contention is that the Act of 1895 gives the surviving husband of the childless wife *171 one-half her estate provided only she die intestate, and the argument is that to hold otherwise would he to repeal or modify the statute which gives the wife the right to make a will.

That the aim of the statute was to limit the right of the wife to dispose of her estate by will is quite evident, but in that particular her right was not more restricted by that statute than was her husband’s right to dispose of his property by will under like conditions, restricted under- section 2939, Revised Statutes 1899. The two sections stand together in the revision and were so intended by the lawmakers. They were intended to form, when taken together, one law establishing the relative rights of the husband and the wife in the property of each other under the same conditions, the only difference being that the husband’s estate is required to make restitution of certain property he received from his wife in addition to one-half of the property held by him in his own right at the time of his death. The twin sections are as.follows:

“Sec. 2938. When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of 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.”

“Sec. 2939. When the husband shall die without any child or other descendants in- being, capable of inheriting, his widow shall be entitled: First, to all the real and personal estate which came to the husband in right of the marriage, and to all the personal property of the husband which came to his possession with the written assent of the wife, remaining undisposed of, absolutely, not subject to the payment of the husband’s debts; second, to one-half of 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.”

*172 The use of the same words to express the legislative intent in reference to the half of the wife’s property which the husband is to have when she dies childless that are used to express the like intent in reference to her half of his estate when he dies childless, shows that it was the intent to put the one as much beyond tlm wife’s right to make a will as it was to put the other beyond the husband’s right to make a will. We hold that the interest given the husband in the one section and that given the wife in the other is equally beyond the right of either to defeat by. will.

It is argued for respondents that this construction makes the statute conflict with section 111, Revised Statutes 1899, which gives the husband certain enumerated articles in ease the wife die intestate.

Sections 105,106 and 107 in the chapter on Administration give certain articles and $400 to the widow. Those sections were not designed to affect the final distribution, but the idea was to allow the widow to have those articles in the beginning.

They were to be separated from the estate that was to be administered, to form no part of it, neither for the creditors nor the distributees; they were to be given to the widow in the first place, and it was only what was left after those articles were given to the widow that was to be treated as the estate to be administered. ■

This is further shown by section 2 in the same chapter, which is to the effect that if there is no more in the estate than those articles and that amount of money, there shall be no administration. Section 111 was only intended to give the husband like articles and the same amount of money out of his wife’s estate that she was to have under sections 105-6-7 out of his estate provided she should die intestate. Those sections have nothing to do with sections 2938 and 2939, above quoted, and are not to be considered in construing them.

The court erred in holding that the husband in this case was not entitled to one-half the estate. The judg *173 ment is therefore reversed and the cause remanded to be retried according to the law as herein expressed.

All concur.