McFadin v. Board

BRACE, P. J.

This is an action for partition and assignment of dower, which was tried below on an agreed statement of facts, from which it appears that on the 5th day of July, 1902, Thomas Board died seized of a farm of 179.5 acres in Audrain county, of the value of $4,936.25, subject to a mortgage theretofore executed by him and his wife, amounting to $2,033.00; a homestead in the city of Mexico of the value of $1,500, and some other lots in said city of the value of $300. He left surviving him his widow, the said defendant, Lucy A. Board, and one child by her, the plaintiff, *691 Laura A. McFadin, Ms only heir at law. Thereafter the widow elected to take a child’s part in lieu of dower in the real estate of which her husband died seized, and the trial court found that having so elected she had no homestead interest in any of the real estate of which her husband died seized, and upon this finding the judgment was entered from which the defendant appeals.

By section 3621, Revised Statutes 1899, it is provided that, “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-third 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 learned trial judge reached his conclusion, as appears by his opinion reproduced in the argument of counsel for respondent, in this way: The net value of the real estate of which Thomas Board died seized being $4,703.25, and the widow by her election having become entitled to an estate in fee simple therein of the value of $2,351.62, dr $851.62 more than the value of the homestead, her homestead was swallowed up in the estate which she took by her election, ergo she hath no homestead interest. The specious reasoning by which this conclusion is reached is, by calling the estate which the widow took by her election “dower” and an attempted application of the foregoing section to that estate as such. Without stopping to review the reasoning by which such a manifestly erroneous conclusion was reached, it is sufficient to say, that while that section does provide a way in which a widow’s dower may, so to speak, be swallowed up in her homestead, it pro *692 vides none by which her homestead may be swallowed np in her dower, and necessarily so, for the homestead is not only for the widow but for the minor children. Moreover, the dower which, under that section, may be swallowed up in the homestead is not a dower, if so it may be called, which the widow takes by. election. The dower to which that section applies is by its very terms Cl one-third interest for and during her natural life” or dower proper. The estate which the widow takes by her election is an estate in fee simple subject to her husband's debts, and, call it what you may, it is not the dower contemplated in that section of the statute, and we find nothing in the cases cited to warrant such an application of it as was made by the court below to the facts of this case. The judgment of the circuit court therefore will be reversed, and the cause remanded to that court, with directions to proceed to final judgment therein in accordance with the agreement of the parties upon which it was submitted, and the views expressed in this opinion.

All concur.