Opinion
February 1, 1941.
1. WILLS: Pretermitted Heir. Under Section 525, Revised Statutes 1929, a testator is deemed to die intestate as to any pretermitted child or descendant of a deceased child and such pretermitted child or descendant shall be entitled to such portion of deceased's estate as if he had died intestate.
A will is not rendered invalid by reason of an omission of the testator to mention one or more of his children; such omission only produces an intestacy as to such omitted child, etc.
2. WILLS: Homestead. Where a man, a slave, married a wife before the Civil War and after the Civil War he married another wife, died leaving a will devising to said second wife his property as sole beneficiary, and where she never renounced the will but had it probated the inference is she accepted its provisions which gave her a fee to the home place in dispute.
3. WILLS: Statutes of Limitation. Although an instrument under which color of title is claimed may be actually void, if it purports on its face to convey the title to the land in question by appropriate words it will constitute color of title.
Where a man devised his homestead to his wife by appropriate words to vest title in her, a descendant by a former marriage who took no steps to assert her rights for a period of forty-four years after the widow accepted the provisions of her husband's will, title by limitation vested in her against such pretermitted descendant.
Appeal from Livingston Circuit Court. — Hon. Ira D. Beals, Judge.
AFFIRMED.
Alcid Bowers for appellant.
(1) The court erred in its finding that said Henrietta Spears continued to occupy the premises involved herein as owner in fee simple from and after the death of Mathew Spears until her death. The facts as agreed upon is that she occupied the premises as her home (par. 4), and the finding of the court that she occupied the same as owner thereof in fee simple is wholly unsupported by the facts. (2) Where a testator, having children, devised his whole property to his wife, the children are not named and provided for within the meaning of this Section 8877, R.S. 1889. Bradley v. Bradley, 24 Mo. 316; Hargadine v. Pulte, 27 Mo. 424; Wetherall v. Harris, 51 Mo. 67; Thomas v. Black, 113 Mo. 65, 20 S.W. 657; Story v. Story, 188 Mo. 110, 86 S.W. 227; Remmers v. Remmers, 239 S.W. 514; Breidenstein v. Bertram, 198 Mo. 328, 95 S.W. 831. Jos, J. Shy for respondent.
(1) At the time of his death, September, 1894, Mathew Spears had the right to convey title to his real estate by will. Secs. 8868, 8900, R.S. 1889. (2) When the will of Mathew Spears was probated and declared by the Probate Court of Livingston County, Missouri, on October 26, 1894, to be the last will and testament of Mathew Spears, devising all his property, both personal and real, to his wife, Henrietta Spears, a defeasible title to the real estate in question vested in her in fee simple, under the will. Henderson v. Calhoun, 183 S.W. 584; Secs. 8900, 8912, R.S. 1889; Chouquette v. Barada, 28 M. 496; Id., 23 Mo. 331. (3) The devising clause in the will of Mathew Spears showed intention to convey absolute fee simple title to the real estate. Sec. 8900, R.S. 1889; Ruth v. Rauschenbusch, 173 Mo. 582; Cook v. Couch, 100 Mo. 29. (4) A will which does not name the child of descendants of testator is not void, but voidable as to such unnamed child or descendant. Hence the will of Mathew Spears, as to this appellant, was voidable and her right of action to void this will arose when it was probated October 26, 1894. Sec. 8877, R.S. 1889; Schneider v. Koester, 54 Mo. 500; Chouquette v. Barada, 23 Mo. 331, Id., 28 Mo. 500; Story v. Story, 188 Mo. 118. (5) When the will of Mathew Spears was probated, appellant's right of action arose to establish her heirship in the Probate Court of Livingston County, and have said will declared void as to her, and she also had a right of action to quiet the title to the premises envolved in this action. Sec. 8877, R.S. 1889; 2 Alexander's Commentaries on Wills, sec. 640; Bunch v. Bunch, 14 N.Y.S. 659; Schneider v. Koester, 54 Mo. 500; Story v. Story, 188 Mo. 118. (6) Appellant being 11 years of age at the time of the probating of the will of Mathew Spears, October 26, 1894, her right of action to claim as a pretermitted heir was barred by the Statutes of Limitation on October 26, 1907. Secs. 850, 852, R.S. 1929; Sec. 8877, R.S. 1889. (7) As the will of Mathew Spears conveyed an absolute title to the land in question to Henrietta Spears, in fee simple, tho defeasible, the possession of this land by Henrietta Spears became adverse to any unnamed descendants of Mathew Spears upon his death, and any right of action or claim to these premises which the defendant Daisy Hayes, might have had, was barred by the Statute of Limitations in October, 1907, appellant being a minor 11 years of age at the time of the death of Mathew Spears, Secs. 850, 852, R.S. 1929; 2 C.J.S., sec. 315, p. 664; Tillatson v. Hill, 279 S.W. 60; Chouquette v. Barada, 23 Mo. 331, Id., 28 Mo. 491; Reno v. Blackburn, 72 S.W. 775, 24 Ky. L. 1976.
Lovie Barker instituted this action to determine and quiet title to Lot Seven, Block Two, Hill's Addition, Chillicothe, Livingston County, Missouri. The judgment determined title under the Statutes of Limitation to be in Lovie Barker. Daisy Hayes, the defendant, appealed.
The case was submitted on an agreed statement of facts. We state the substance of all that is essential. Mathew Spears is the common source of title. Prior to the Civil War, he and Harriett ____, both being slaves, were married according to the usage for the marriage of slaves, and Daisy Hayes, the defendant, is the only surviving descendant, a granddaughter of said Mathew and Harriett. Mathew Spears escaped from his master's plantation, joined the Union Army and, after the close of the war, never returned to his slave wife, Harriett. He acquired title to the real estate in question December 9, 1867. He married Henrietta Spears February 3, 1872. No children were born of this union. They occupied the property as their homestead. Mathew Spears died testate in September, 1894. His will, dated March 4, 1891, and duly probated October 26, 1894, devised and bequeathed "to my beloved wife, Henrietta Spears, all of my property, both real, personal and mixed, to have and to hold same absolutely." Henrietta Spears never renounced her husband's will and lived on the property "as her home . . . until her death" on May 21, 1934. Her will, duly probated May 22, 1934, devised her residuary estate, including the real estate involved, to plaintiff, widow of her only son John L. Barker. Mathew Spears died intestate as to Daisy Hayes, no mention being made in his will of any descendant barring her rights in his estate.
Defendant says (citing, among others, the authorities mentioned) that Henrietta Spears was the lawful widow of Mathew Spears, he never having lived with his slave wife, Harriett, after his emancipation (Johnson v. Johnson, 45 Mo. 595, 600, 601, and consult Erwin v. Nolan, 280 Mo. 401, 413, 217 S.W. 837, 841 [9]); that Daisy Hayes is the sole heir of Mathew Spears (Sec. 317, R.S. 1929, Mo. Stat. Ann., p. 201; Sec. 4477, R.S. 1889; Lee v. Lee, 161 Mo. 52, 56(I), 61 S.W. 630, 631 (1); Erwin v. Nolan, 280 Mo. 401, 415, 217 S.W. 837, 842[12]); that Mathew Spears died leaving a homestead, a widow and an heir; that the homestead passed to the widow, with the right to occupy the same during her life, and upon her death vested in Daisy Hayes, as the descendant of Mathew Spears (Sec. 5439, R.S. 1889); that Mathew Spears was without power to defeat the rights of Daisy Hayes in said homestead by a devise thereof to Henrietta Spears (Kaes v. Gross, 92 Mo. 647, 659, 3 S.W. 840, 844; Schorr v. Etling, 124 Mo. 42, 46, 27 S.W. 395, 396); that Henrietta Spears, at the death of Mathew Spears, acquired a life estate in the property under the homestead law (Sec. 5439, R.S. 1889); and that the Statute of Limitations did not commence to run against Daisy Hayes, as remainderman, until the termination of said life estate; that is, the death of Henrietta Spears in 1934 (Thomas v. Black, 113 Mo. 66, 70 (II), 20 S.W. 657(2)).
Under the provisions of Section 8877, Revised Statutes 1889 (now Sec. 525, R.S. 1929, Mo. Stat. Ann., p. 318), a testator is "deemed to die intestate" as to any pretermitted child or descendant of a deceased child, and such pretermitted child or descendant of a deceased child "shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part." The statute provides protection for the rights of a pretermitted heir without striking down the will except pro tanto. [Story v. Story, 188 Mo. 110, 118, 86 S.W. 225, 228; Lawnick v. Schultz, 325 Mo. 294, 302, 28 S.W.2d 658, 661.] "The will is not rendered invalid by reason of an omission of the testator to mention one or more of his children; such omission only produces an intestacy as to the interest of the omitted child . . ." [Schneider v. Koester, 54 Mo. 500, 501.] "The children are not bound to claim against the will . . . If the children should never assert their right against the will, the title must remain in the devisee." [Chouquette v. Barada, 23 Mo. 331, 337. See also Cox v. Cox, 101 Mo. 168, 173, 13 S.W. 1055, 1057; Chouquette v. Barada, 28 Mo. 491, 500.]
Under defendant's position, the rights and titles of pretermitted descendants vest upon the death of a father (Schneider v. Koester, supra; Vantine v. Butler, 250 Mo. 445, 451 (II), 157 S.W. 588, 590 [3]; Bunce v. Bunce, 14 N.Y.S. 659, 661), and the widow acquires only homestead rights in the home place against pretermitted descendants, as though the father had died intestate. This ignores the effect, if any, of Mathew Spears' will and any action had in connection therewith. [3] Henrietta Spears was the sole beneficiary under said will. She never renounced it. She had the will duly probated. The only logical inference is she accepted its provisions, including the transfer of the fee to the home place. In Jamison v. Wells (Mo.), 7 S.W.2d 347, 348[6], we said, citing cases: "Although the instrument under which color of title is claimed may be actually void and convey no title, if it purports on its face to convey the title to the land in question by appropriate words of transfer it will constitute color of title." Henrietta Spears (and her devisee) held possession of the whole of the real estate under claim of title and color of title subsequent to 1894. [Consult Allen v. Mansfield, 108 Mo. 343, 348, 18 S.W. 901, 903; Harriss v. Howard, 126 Ga. 325, 330, 55 S.E. 59, 61.] The homestead law does not preclude a widow from accepting a greater estate under her husband's will. His heirs remain free to timely assert their lawful rights and, in proper instances, may defeat any such devise pro tanto. Defendant was eleven years of age in 1894. She took no timely steps to render ineffective her father's devise to his widow. This action was instituted in 1938, approximately forty-four years after Henrietta Spears accepted the provisions of her husband's will. In the interval, title by limitations had become vested in Henrietta Spears. [Secs. 850, 852, R.S. 1929, Mo. Stat. Ann., pp. 1121, 1126. Consult Givens v. Ott, 222 Mo. 395, 420 (IV), 121 S.W. 23, 29 (4); Deck v. Wofford, 282 Mo. 564, 579, 222 S.W. 443, 448; the Chouquette v. Barada cases, supra; Reno v. Blackburn, 24 Ky. L. 1976, 1978, 72 S.W. 775, 776; Tillotson v. Hill (Tex. Civ. App.), 297 S.W. 603, 606[2].]
The judgment is affirmed. Cooley and Westhues, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.