Carlin v. Mullery , 83 Mo. App. 30 ( 1899 )

BOND, J.

This is a suit to set off to defendant the yearly value of her dower in twenty-five feet of ground, not susceptible of division, which comprised the real estate belonging to John Mullery at the time of his death. The plaintiffs are his children and grandchildren, the offspring of a former marriage, his first wife being deceased. The defendant is the widow and relict of a second marriage contracted by him in 1890 at the age of eighty years, and dissolved by his death in 1895. The latter marriage resulted in no issue. The cause was submitted to the court without a jury. The plaintiffs’ evidence disclosed the situation of the lot as the eastern half of fifty feet of ground formerly owned by the decedent (the western half of which he had conveyed to his daughter, Regina M. Carlin), situated on the south of Chestnut street, between Ninth and Tenth streets; that a two-story brick building was erected on the lot in question covering its entire length and its width for eighteen feet west of its eastern boundary line; that the remaining seven feet of the lot was covered for a part of its length by the projection thereon of a one-story brick blacksmith shop situated on the front part of the lot conveyed to Regina .M. Carlin; that there was also on the rear of the Carlin lot a brick tenement house separated by a space from the blacksmith shop on the front of the Carlin lot, which projected seven feet upon a part of the lot described in the petition; that the latter lot is therefore bounded on its west side by the buildings on the Carlin lot, except as to the small space between said buildings, and bounded on its east side for the full length by a livery stable, all of which surrounding structures had existed for more than twenty-five years; that for many years previous to his death Mr. Mullery, who was a retired blácksmith, had been leasing the property in question and realizing therefrom a yearly rental of about $600 net; that the executor of his estate had received about the same sum since the death of Mr. Mullery, and that as the lot was situated, improved and bounded, it could not now be leased annually, or for a short term, for a larger sum.

Eor the defendant there was evidence, admitted over the objection of plaintiffs, given by expert real estate agents tending to show that with new and different improvements thereon the lot at a long leasing — from fifty to ninety-nine years — would bring in a rental value of six per cent on a valuation of th& fee at $900 per foot. Upon the theory of the evidence presented by defendant the court rendered judgment fixing the yearly value of defendant’s dower at $335, from which plaintiffs appealed.

If this was the correct rule for computing the yearly value of the dower of defendant in the lot described in the petition under the facts shown in this record that judgment must be affirmed, otherwise it must be reversed. The primary purpose of dower in lands is to create an interest in a specific portion, to wit, one-third thereof, which shall endure for the life of the dowress. It is only in cases like the present, when the land is not susceptible of division, that the statute awards to the widow, in lieu of her usufruct for life of a certain part of the land, a sum represented by the yearly value of that portion of the lands which she could not receive. The statutes on the subject are the only source and measure of her right to dower in kind, or when that is impossible, to the alternative yearly value of the land which could not be assigned. R. S. 1889, secs. 4513 and 4543; Chouteau v. Railroad, 122 Mo. loc. cit. 394. The solution of the question presented by this appeal depends, therefore, upon the proper rule to be applied to ascertain the yearly value of one-third of the aforesaid lot, which sum defendant is entitled to receive annually during her natural life. R. S. 1889, sec. 4544. On this subject it has been announced by our supreme court: “The yearly value of real estate is its net annual product, without the expenditure of money or labor upon it, after the deductions have been made from its gross income, of all the charges to which it is subject, such as taxes, repairs,” etc. * * * “This will depend upon thq locality of the property, its fitness for different uses, and all the circumstances by which its productiveness may be increased or diminished. On the one hand no fanciful idea is to be indulged of modes in which, by extraordinary management, it might be made to produce a large income; nor, on the other, is the idea to be allowed a controlling influence, that the owner may not choose to make it productive. It is a practical question to be determined in relation to property held by one person, for the use of which he is to pay an annual sum for the whole life of another. It is a question that applies to the particular property in which the dower is claimed.” Riley v. Clamorgan & Rippey, 15 Mo. 331; affirmed in Reily v. Bates, 40 Mo. 468. Again, “adaptability and circumstances must govern each particular case. It matters not whether the property is actually used. The true criterion is, what is the yearly value if the property had been reasonably used by the party in possession holding the title.” O’Flaherty v. Sutton, 49 Mo. 588; affirmed in Griffin v. Regan, 19 Mo. 13; Young v. Thrasher, 115 Mo. loc. cit. 235. It will be seen from the foregoing definition of yearly value in lieu of dower and the legal method prescribed for ascertaining it, that the law aims to give the widow, in such cases, one-third of the annual earning capacity of dowable land which it would acquire if put to reasonable uses by the owner, without expense or outlay on his part. The law does not compel the owner of the fee to add to the rental value of the land by contributing his own money to its improvement, or by effecting leases thereof so far into the future as to prevent any enjoyment of the fee in the lifetime of the owners, in order that the share of the rents to which the dowress is entitled should be abnormally increased over what she would have received if the property had been let in the condition in which it descended and for an annual or short term. In the case at bar the proof is, that the lot, with a structure now occupying it, has produced on annual or short leases a rental of $600 net for many years prior to the death of- defendant’s husband and since that event, and that this rental value could not be increased under the existing condition of the property and the adjacent lot and improvements, unless it could be demised for a term of fifty or ninety-nine years, in which event the expert opinion is that its rental would be more than double, upon the assumption that the lessee for such a protracted term would agree to substitute new and suitable improvements for those now upon the property. It is earnestly contended by the learned counsel for respondent that the yearly value of the lot should be estimated as if this project had been accomplished by the owners of the fee. We can not admit the justice of this contention. It certainly has no support in the adjudged cases in this state, nor is it in harmony with the conclusions of reason upon the subject. If, to subserve the interest of the dowress for the few years she may expect to live, the owners of the fee in the lot, adults and minors, should havé their estate charged as for a rental value yielded by demise from fifty to ninety-nine years, the result would be a manifest deprivation of the right of the owners of the property to use and control the fee vested in them. Such a demise would create an annuity of rents lasting probably one hundred years, but would deprive the owners of the fee and their descendants during that period of any other use, control or enjoyment to the property itself. The law does not make it the duty of the owners of property to make such a sacrifice of their estates for the benefit of the temporary encumbrance of dower. It guarantees to every man the reasonable use of his own property. It can not go further in favor of one having a special interest in such property, without violating the rights of the general owner. It is clear that the owners of the lot described in the petition could not be reasonably called upon to devote their property to the uses suggested by the testimony given on behalf of defendant. The law does make it their duty to employ fair management in the use of the lot. And whether or not it is actually rented or used, they are responsible to the dowress for her proportion of the rental value which could be gotten in the market, by putting the property to the uses justified by its condition, and to which it is shown in this record to be adapted. In the accomplishment of these purposes they can only be charged for the rent which the property would yield upon annual or short term leases. The case of Seammon v. Campbell, 15 Illinois 223, is cited by the learned counsel for respondent in support of their contention on this appeal. All that was decided in that case is, that the rental valne of certain city property might be arrived at by taking six per cent of the valuation of the lot per front foot, excluding from such valuation the improvements which had been erected upon the lot by the alienees of the land. It is difficult to see how the rule adopted by the Illinois court differs in substance from the rule disapproved in Riley v. Rippey, 15 Mo. 334. There the widow sought one-third of six per cent of the money valne of the lot, which the statement of the counsel shows was exclusive of the value of the improvements thereon. This was, of course, substantially the method approved in the Illinois decision, but our supreme court held that such was not the true rule for estimating the yearly value of the premises. It is apparent, therefore, that the case cited (if it were otherwise in point, which is not conceded), is not even a persuasive authority on the question under review. The learned trial judge erred in the reception of the evidence offered to show the probable value of the premises if let for the terms suggested by the witnesses for defendant, and in regarding such evidence as an element of the yearly value of the lot.. The judgment is therefore reversed and the cause remanded, to be tried in conformity with the views expressed in this opinion.

All concur.