Graves v. Cochran , 68 Mo. 74 ( 1878 )

Henry,

i. homestead and dower : dower, how computed: Northampton taWes-

— This case involves a construction of the homestead act in connection with that in relation to dower, Before the passage of the homestead act, the x ° 7 widow was entitled to be endowed of the third part of all the lands whereof her husband was seized of an inheritance, and in partition proceedings, if it became necessary to sell the land, she was entitled to an annuity equivalent to one-third of the proceeds of the sale during her life. Wag. Stat., § 31, p. 544; § 39, p. 978. The first section of the homestead act gives to every housekeeper, or head of a family, a homestead not exceeding, in the country, 160 acres of land, or the total value of $1,500. By section 6 it is provided that: “The commissioners appointed to-set out such homestead, shall, in cases in which a right of dower shall also exist, 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 such widow in such homestead; and if the interest of such widow in such homestead shall equal or exceed one-third of the real estate of which such housekeeper, or head of a family, shall have died seized, no dower shall be assigned to the widow.” The dower is diminished by the amount of the interest of the widow in the homestead— diminished by something taken from it — by the amount of what is so taken from it. The dower was one-third, but the homestead has been taken from it, and the balance, after deducting the homestead interest, is what she is entitled to as dower. If the homestead interest equal or exceed the dower interest, it is taken by her in lieu of dower; if less than her dower interest, she is to receive, in addition, of the real estate, or if sold, of its proceeds, a sufficient amount to make up what she is entitled to as dowress. After setting apart the homestead, if it be less than the dower interest, the balance of her dower is to be set out from the residue of the real estate. The whole estate is the basis for the ascertainment of her dower, whether there be a homestead interest or not, while from the residue, after the assignment of the homestead, when such a right exists, the balance is to be set out. Here the land was sold, and the widow was entitled to $1,500 for her homestead, and in addition, such annuity as would make the aggregate equal one-third of the proceeds of sale. Wag. Stat., sec. 39, p. 972, directing, that when the land is sold, the present value of the dower interest is to be paid to the widow, has no application whatever to a homestead right, but only to the dower interest, in this case the balance after deducting the homestead interest, and the Northampton tables might be used to compute the value of that balance.

2. dower not to taxes.

Nor is the dower interest of the widow to be diminished by the taxes, or any portion of the taxes assessed against the land, either in her husband’s life-tune or during her quarantine. Moore v. White, 61 Mo. 442. Section 21 of the dower act provides that: “ Until dower be assigned, the widow may remain in and enjoy the mansion house of her husband, and the messuages or plantation thereto belonging, without being-liable to pay any rent for the same.” It is the duty of the heirs to assign her dower, and section 21 is but a provision for her until that duty shall have been complied with by them. The judgment of the circuit court is reversed and the cause remanded, to be proceeded with in conformity to this opinion.

All concur.

Reversed.