Brown v. Woody

98 Mo. 259

• Court: Supreme Court of Missouri
• Decided: April 15, 1889
• Status: Published

Opinion

Barclay, J.

— In Brown v. Woody, Adm’r (64 Mo. 547) it was ruled that, as no execution could properly issue against the estate of one deceased on a judgment for damages for deforcement of dower, such a claim should be certified to, and classified in the probate court as part of the proceedings of administration.

That is the extent of the ruling then made, having ■ any bearing on the present controversy

But the allowance and classification of such a demand against the estate of a decedent do not enlarge the right to enforce it beyond the limits fixed by the law relating to dower.

By section 2228, Revised Statutes, 1879, it is provided that “In all cases of judgments for damages or yearly allowance in favor of any widow, under the provisions of this chapter, execution thereof shall be awarded only against the estate in which dower shall have been assigned.” This is a clear declaration of the legislative intent to subject only the estate in which dower shall have been assigned to the payment of such damages. It is rendered clearer by a later section to the effect that upon the death of all the defendants in such an action, it may be renewed against the administrators and executors as in other cases, but any other person claiming title to the land may be made a party by his voluntarily appearing to such action as a defendant. R. S. 1879, sec. 2231.

We think it evident that the lands of deceased, other than those in which the dower right existed, were not intended to be subjected to the original judgment or the probate allowance based thereon. We must declare the law as we find it. The order of sale should have been denied.

The judgment is reversed and the cause remanded to the St. Louis court of appeals with directions to reverse and remand in accordance with this opinion.

Sherwood, J., absent. The other judges concur.