Miller v. Talley , 48 Mo. 503 ( 1871 )

Bliss, Judge,

delivered the opinion of the court.

The plaintiff is the widow of Jesse A. Miller, and her dower not having been assigned, she brings this suit to recover possession of the dwelling-house, messuage and plantation, of which he died seized, claiming it under her right of quarantine. It appears that she is the sole heir of her daughter, who gave birth to a living child, which shortly died; and the daughter’s husband, the defendant Talley, claims the right of possession as tenant by curtesy.

The statute is unequivocal as to the widow’s right to possess the dwelling-house, etc., until dower is assigned (Glen. Stat. 1865, ch. 130, § 21; Wagn. Stat. 542), and unless she could bring this action, she might be kept out of possession. Hence it is held that ejectment will lie in her favor. (Stokes v. McAllis-ter, 2 Mo. 163.) But defendant claims that inasmuch as the plaintiff inherits the fee as heir of her daughter, her right of dower and quarantine is merged in the greater estate, and thus the curtesy is let in to defeat her possession altogether.

The right to remain in and enjoy the dwelling-house, etc., can hardly be called an estate, though it is somewhat analogous to one at will; still it is a clear statutory right, and can only be terminated by an assignment of dower. ' If the dower is merged in the inheritance it cannot be assigned, and thus the possession by the widow will continue during life, which would be fatal to defendant’s claim. But dower, under the circumstances, will not merge.

Merger takes place when a less and greater estate come together in the same person in the same right, as when the holder of the term purchases or inherits the fee, and the term is extinguished; upon the principle that one cannot be tenant to himself. It can only take place, however, when the estates come together without any intervening estate; otherwise the lesser estate would he lost altogether,' and the reversion only be held, as is claimed in the case at bar, or the intermediate estate be destroyed. In either case rights of property would be sacrificed, and the law will not permit merger to' so operate, but will preserve the estates apart until they can come together with no other estate intervening.

It does not appear that the plaintiff is actually dispossessed of all the property she is entitled to hold; but defendant acknowledges that he is in possession of eighty-seven acres of the plantation, for which judgment should have been rendered. The judgment of the Circuit Court is therefore reversed, and judgment is entered for the amount so in possession of defendant.

The other judges concur.