author: HIG-BEE, J.

text:
    THE STATE ex rel. CHARLES O. MANKER v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    April 30, 1921.
    1. CERTIORARI TO COURT OF APPEALS: Application for: Suf- ■ ficiency of. An application for a writ of certiorari to review an opinion of a Court of Appeals on the ground of conflict with a controlling decision of the Supreme Court does not comply with Rule 34 of the Supreme Court, when the application itself does not “set out the issue presented to the Court of Appeals or show wherein and in what manner the alleged conflicting ruling arose,” hut merely states that the decision of the Court of Appeals is in conflict with the last reported decisions of the Supreme Court on the point in issue and refers to the opinion of the Court of Appeals and suggestions in support of the application filed with the application.
    2. -: -: -: Waiver. The respondents having waived the insufficiency of the application for the writ, and the writ having been granted and return made, the Supreme Court will consider the suggestions made by relator.
    3. -: Conflict of Opinions: Guarding Dangerous Machinery: Statute. The Supreme Court has never construed Section 7828, Revised Statutes 1909 (Section 6786, Revised Statutes 1919), to mean that if the appliances provided to safely and securely guard dangerous machinery should, without any negligence of the master, suddenly get out of repair or fail to function then, in such case, there was a failure to comply with the statute.
    “i. -: -: -: -. The Court of Appeals reversed a judgment for relator against his master for personal injuries sustained while working at a planing machine, which relator’s petition alleged was operated without having any safe and secure covering, guard or protection to prevent workmen coming in contact with the rotating knives of said machine and which it was alleged the master carelessly and negligently failed to safely guard. Th.e facts showed that a guard was provided which could be adjusted by a thumbscrew to any required height. For some unexplained reason this guard suddenly and unexpectedly failed to work when relator attempted to lower it and so he tightened the thumb-screw to hold it in place and proceeded to use the machine with it in that position. It was relator’s duty to adjust the guard. While using the machine to plane a heavy board with the guard as stated his foot slipped on a loose piece of gas-pipe lying on the floor and covered with shavings and his arm and hand were thrown against the knives and he was injured. Held, the decision of the Court of Appeals was not in conflict with any decision of the Supreme Couri.

      Certiorari.

    Writ quashed.

      C. W. Prince, E. A. Harris, E. C. Hamilton, and James N. Beery for relator.
    The decision of the Kansas City Conrt of Appeals is in conflict with the decisions of the Supreme Court of Missouri and decisions of the Court of Appeal. Hayes v. Sheffield Ice Co., 221 S. W. 707; Wagner v. Const. Co., 220 S. W. 898; Hughes v. Mfg. Co., 188 Mo. App. 549; Cole v. Lead Co., 240 Mo. 408; Lore v. Mfg. Co., 160 Mo. 608.

      John U. Lucas for respondent.
    (1) None of these cases cited by the relator in any manner conflict with the opinion in the instant case. (2.) The opinion of the Court of Appeals is fully justified in the principle of law in Huss v. Bakery Company, 210 Mo. 51-52; 18 R. C. L. 544; Strode v. Box Co., 250 Mo. 728; Cordage Co. v. Miller, 136 Fed. 495 ; 26 Cyc. 1255; Benner v. Lumber & Mfg. Co., 56 Wash. 679; Cole Mfg. Co. y. Racine, 43 Ind. App. 695; Honor v. Albrighton, 93 Pa. 475. .
   HIG-BEE, J.

Certiorari to the Kansas City Court of Appeals. The application for our writ of certiorari in this cause recites, inter alia, that the respondents, judges of the Kansas City Court of Appeals, have rendered judgment in a certain cause pending in said Court on Appeal from the Circuit Court of Jackson County, in which relator was plaintiff and “that said above tribunal in rendering its decision in the cause aforesaid has disregarded and is disregarding the last reported decisions of the Supreme Court touching the points in issue, which are in direct conflict with the opinion in the case, as will more fully appear in the- certified copy of the opinion of said court heretofore rendered, together with the suggestions herewith filed in support of this application.” Wherefore your petitioner prays, etc.

The foregoing excerpt is all that is said in the application touching the decision of the Court of Appeals. It does not state that the judgment of the Court of Appeals was adverse to relator. It does not “set out the issue presented to the Court of Appeals or show wherein and in what manner the alleged conflicting ruling arose, ’ ’ It does not refer to any decision of this court with which the ruling of the Court of Appeals is said to conflict. The application is followed by a statement and suggestions in support of the application, setting forth the allegations of the petition, the statute on which the action is based, and. excerpts from the opinion of the Court of Appeals with reference to certain decisions of this court with which it is said the decision is in conflict.

The application does not conform to the requirements of Rule 34 of this court but since the respondent waived the insufficiency of the application and the writ was granted, we will consider the suggestions made by the relator.

Relator sued the Standard Oil Company of Indiana for damages for personal injuries sustained December 18, 1916, as alleged in his petition, while working at its planer, a machine having knives on a cylinder rotating at a high rate of speed, without having any safe and secure covering, guard or protection to prevent workmen coming in contact with said rotating knives, and carelessly and negligently failed to safely guard said planer.

On the trial of the cause, plaintiff recovered judgment from which the defendant appealed. The judgment was reversed by the Court of Appeals.

The action is based on Section 7828, Revised Statutes 1909 (Sec. 6786, R. S. 1919). It appears from the opinion, Manker v. Standard Oil Co., 221 S. W. 139, that defendant provided a guard which could be raised or lowered and kept at any desired height by means of -a thumbscrew. When this guard was let down, it afforded ample protection to the woi'kman at the planer.

It further appears from the opinion that the plaintiff undertook to use the planer and found he could not lower the guard; that he was familiar with the use of the machine and knew the danger of operating it without having the guard in proper position; that he did not notify any one of his inability to lower the guard, but, thinking that he could operate the planer, tightened the thumbscrew to prevent the guard falling, placed a heavy plank on the planer and turned on the-power; that while so at work, he stepped on a piece of gas pipe concealed in some shavings, slipped and fell with his hand and arm on the revolving cylinder and sustained the injuries complained of. The opinion recites:

“He (plaintiff) says that when he took the board to the planer he found the guard was up‘too high.’ . . . Plaintiff says he tried to get the guard down but it would not move, whereupon, to prevent it coming down on account of the jar of the machinery during the prosecution of the work, he tightened the thumbscrew so it could not do so. He went ahead with the planing of the board, knowing and being fully aware, so he himself says, of the danger of using the machine with the guard thus raised above the table. He says also that the board could easily have been run through the planer with the guard down close to the table top and that it was unnecessary to have it raised any distance therefrom. He says also that he did not notify the superintendent or foreman or anyone that the guard would not come down; and there was no evidence that the guard had been so that it would not come down for any length of time prior to this occasion when he tried to lower it.

In the course of planing the edge of the board, plaintiff says he stepped on a piece of gas pipe which he did not know was in the shavings on the floor, and this gas pipe rolling under his foot caused him to lose his balance and fall forward thrusting his left hand and arm down against the revolving knives whereby he was injured.

Thus it will be observed that in his pleading he has charged a failure to guard as required by the statute at that time in force, while in his evidence he shows that there ivas a guard; that the guard was adjustable so made as to permit timbers of different sizes to be planed on said machine; that the duty of adjusting the guard in accordance with the particular timber to be planed was upon the one desiring to use the machine; that it was unnecessary to have the guard raised at all in order to plane this particular board; that had the guard been down close to the surface of the table he would not have been injured; that when he found the gqard was up and would not come down he did not inform the defendant or anyone in authority so that the guard could be adjusted; but without saying anything to anyone, except his associate who plaintiff says tried with him to lower the guard, and knowing full well the danger of so doing, plaintiff proceeded to use the machine with the guard as it was. There was no claim that the guard had been in this condition for any length of time prior to plaintiff’s attempt to lower it. . . . ”

“The cause of action pleaded was a failure to safely and securely guard when possible, a duty imposed by statute. The evidence disclosed that a safe and secure guard was provided; that to do the work required of the machine the guard had to be adjustable, that is, movable up and down according to the work to be done, and this adjustment was to be done by the operator before starting the machine; that there was a secure guard but for some mysterious reason it suddenly and momentarily refused to be adjusted; whereupon the operator, the only one who knew of this mysterious and sudden condition, chose to operate the machine with the guard up and without informing his master of the situation or giving him any opportunity to remedy the matter. The statute did not intend that the master should stand over and watch the machine and thus 'maintain’ the guard in the sense required by the circumstances of this case. It is true, that in Lore v. American Mfg. Co., 160 Mo. 608, the master was held liable under the statute where a guard was provided but which was out of repair. But in that case the defective state of the guard made it no guard at all, and this defective condition had existed from several months to two years before the injury, and the Supreme Court on page 675, say, 'We think the evidence was sufficient to show negligence in not repairing this guard,’ ” (Italics ours.)

Relator contends that as the guard was out of order and he was unable to' lower it at the time of the injury, there was a failure to comply with the statute requiring dangerous machinery to be safely and securely guarded when possible; that-the statute does not provide for any interval of time for the master to learn of and remedy the defective condition of the guard; it prohibits the use of such machinery at all without being seeurely guarded, and that the opinion of the court appeals in reversing the judgment is in conflict with Hayes v. Sheffield Ice Co., 282 Mo. 446; Wagner v. Constr. Co., 220 S. W. 890; Hughes v. Mfg. Co., 188 Mo. App. 549; Cole v. Lead Co., 240 Mo. 397, 144 S. W. 855; and Lore v. Mfg. Co., 160 Mo. 608, 61 S. W. 678.

In the Lore case the guard had been out of repair for from several months to two years before the injury. It was there said: “We think the evidence was sufficient to show negligence in not repairing this guard.” That case is opposed to relator’s contention. The recovery was based on a negligent failure to repair the defective guard. It is not an authority for the proposition that the master is liable in case he has provided a safe and secure guard which, for some unexplained reason, fails to function. In that case it was held that the master was liable for negligent failure to make repairs.

In the Wagner case it was held that under Section 7828, Revised Statutes 1909, prohibiting the use of unguarded, dangerous machinery, an employer is not given a reasonable time within which to guard the machinery but is absolutely forbidden to use it until it is guarded.

In the Hayes case the plaintiff was employed to dismantle an old ice-house. He was ordered to go on the roof to tear off sheeting and was assured that the place was safe, and while so engaged the wall fell and plaintiff was injured. Obviously, this case has no relevancy to the questions under consideration.

We have carefully examined the other cases cited by relator and are unable to find any conflict between them and the opinion of the court of appeals.

Briefly stated, relator’s contention is that this court has construed the statute to mean that the appliances provided to safely and securely guard dangerous machinery must be maintained and that if, without any negligence on the part of the master, the appliance so provided should suddenly get out of repair or fail to function, then, in such case, there was a failure to comply with the statute. Our attention has not been called to any case in which we have so ruled.' The writ was improvidently granted and should be quashed. It is so ordered.

All concur, except Woodson, J., absent.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. JOHN H. BERKSHIRE and BEN H. BERKSHIRE, Co-Partners as Berkshire Lumber CO., v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    April 30, 1921.
    1. CERTIORARI TO COURT OF APPEALS: Function of Writ: Discretion to Grant. The writ of certiorari from the Supreme Court to review a decision of a Court of Appeals on the ground of conflict of opinions performs a double function, viz: (1) to prevent contrariety of opinions upon questions of law and equity in this State; and (2) if sustained, to quash an adverse judgment against the applicant for the writ. The issuance of the writ, however, is discretionary with the Supreme Court.'
    2.--: Must Apply Within Reasonable Time. Neither the statutes of the State nor the rules of the Supreme Court fix the time limit for applications for writ of certiorari to review decisions by the Court of Appeals; but such applications must be made within a reasonable time after the decision of the Court of Appeals become final.
    3. — -■: -: What' is Reasonable Time. Inasmuch as under Section 1520, Revised Statutes 1919, and Section 15 of Article 6 of the Constitution, the Clerk of the Court of Appeals must certify to the circuit court a copy of the opinion of the Court of Appeals within thirty days after the filing of such opinion, which is construed to mean the day upon which a motion for rehearing, if one is filed, is overruled, the application for the writ of certiorari should in ordinary cases, be made within such thirty days.

      4. -: -: -: Laches. Where application for a writ of certiorari to review a decision of a Court of Appeals on the ground •of conflict with controlling decisions of the Supreme Court was not made until more than nine months after the.motion for rehearing was overruled and more than seven months after the opinion of the Court of Appeals had been certified to the circuit court and judgment entered there pursuant to such opinion, and the applicant for the writ had not applied to the Court of Appeals for a stay of mandate to enable him to apply for the writ of certiorari. there was such delay and laches on the part of the applicant as to require the writ to be quashed.
    5. -: -: -: Excuse. The applicant having taken no action in the Court of .Appeals to secure a stay of mandate until application could be made for the writ, it is no excuse that applicant, four months after the mandate had gone down to the circuit court and judgment pursuant thereto had been entered by that court, applied to the Supreme Court for a mandamus to the Court of Appeals to so write its opinion as to state the facts, as a preliminary step toward applying for the writ of certiorari, which application for a mandamus was denied three months before the application for the writ of certiorari was made.

      Certiorari.

    Writ quashed.

      Edgar C. Ellis, Hale H. Cooh, Roy H. Dietrich and Ellis, Cooh é Dietrich fo'r relators.
    There was no delay by relators to work a denial of the writ herein, (a) Taking np the point referred to in the paragraph, that the mandate had been.delivered to the circuit court and judgment rendered as directed therein, and which respondents claim as a reason for the denying of this writ, certainly nothing was done in the circuit court in making a clerical entry under the judgment and mandate of the Court of Appeals which should be appealable or which in any way changed the status of the parties. The rights of the parties were fixed, if at all, by the judgment in the Court of Appeals. When the motions for rehearing and to certify the cause to the Supreme Court were overruled, there was nothing further to be done except by appealing to the superintending control of the Supreme Court after the respondents herein had exceeded their jurisdiction. Orvis v. Elliott, 147 Mo. 231. (b) This court has heretofore held that tíre fact that the mandate had come down before the application for the extraordinary, writ was made was immaterial and was not laches. State ex rel. v. Smith, 172 Mo. 629, 630. (c) Also as a matter of actual practice, these respondents know from their own experience that the writ of certiorari may and does issue and that thereafter the record in said Appellate Court be quashed, although the mandate has been sent down. This was true in the case recently decided of State ex-rel. Development Co. v. Ellison, 222 S. W. 783, in which the Supreme Court granted the preliminary writ of certiorari and thereafter quashed the record. The mandate in that case had been sent down to the circuit court, and, in fact, execution had been issued thereunder, (d) As to the further claim of laches as advanced by the respondents, immediately following the overruling of the motion for rehearing and failing that to transfer to this court, in November, 1919, motion was filed by wray of notice with the respondents to withhold issuance of mandate because lien claimants, including the relators, purposed to apply to this court for writ of certiorari. Thereafter the lien claimants applied to Supreme Court for writ of mandamus as shown by the files of the Supreme Court raising and urging the point that respondents herein had failed properly, adequately and legally to state in their opinion the essential facts as presented by the record. The court denied the application for the writ of mandamus and your relators then lodged their application for writ of certiorari. This is called to the court’s attention for the reason that due notice was given and there is no claim that the rights of any parties intervened. The property still stands in the hands of the defendants and no one is shown to have suffered except the relators and the other lien claimants who have made possible by their material and labor the Holckers’ home and who are still without pay for same.

      Bcarritt^ Jones, Beddon & North for respondents.
    This writ should be denied by reason of the delay of relators, (a) This court has, in no uncertain terms, stamped its disapproval upon the laches of parties in seeking discretionary writs in this court. State ex rel. v. Gibson, 187 Mo. 555. (b) Likewise, it has been established by the decisions of this court that after a trial has been had in the circuit court and a new trial granted and a second trial had, a party litigant will not be permitted to go back of the last trial and question the action of the court in setting aside the first verdict and granting a new trial. Davis v. Davis, 8 Mo. 56; Ess v. Griffith, 128 Mo. 50; Samuel v. Morton, 8 Mo. 633, 635; Trundle v. Ins. Co., 54 Mo. App. 188.
   GRAVES, J.

Certiorari to the Kansas City Court of Appeals. The proceeding nisi out of which the present proceeding grows was that of a copartnership under the name of Berkshire Lumber Company v. Ima H. Holcker, Otto L. Holcker, et al. It was an action under the equitable mechanics lien law, Act of 1911, p. 314. The Berkshire Lumber Company being desirous of enforcing a lien against property in Kansas City which belonged to Mrs. Ima H. Holcker, brought action against her and ^61> piisband (Otto) and all other lien claimants. In the trial court the verdict of the jury favored Mrs. Holcker, in that it found that her husband was not her agent in putting the improvements upon the property. The law requires, under given conditions, the submission of issues to the jury and bound the trial court by their verdict on such issues.

The circuit court granted the lien claimants a new trial, and Mrs. Holcker took an appeal from said order to the Kansas City Court of Appeals. In that court there were two hearings. January 17, 1917, there was an opinion by Judge Ellison, reversing and remanding the cause with directions to the circuit court “to reinstate the verdict and enter judgment against the liens.”

The case was then held up in the Kansas' City Court of Appeals to await the decision of this court in Boeckler Lumber Company v. Wahlbrink, which had been certified bo this court by the St. Louis Court of Appeals, 191 Mo. App. 334.

After our ruling in that case, the instant case was set down for re-argument in the Kansas City Court of Appeals. June 17,1919, the Kansas City Court of Appeals rendered, through Trimble, J., a second opinion, in the lower court by which the order was again reversed, with directions to reinstate the verdict of the jury and enter judgment against the lien claimants. November 10, 1919, the motion for re-hearing was overruled. November 10,1919, a motion was filed by some of the lien claimants to withhold mandate, but this record does not show the action of the Kansas City Court of Appeals thereon. Relators here were not parties to this application. The application for our writ of certiorari was filed here on August 6, 1920.

Counsel for the respondents here, have filed in this court a certified copy of a judgment in the Circuit Court of Jackson County entered on the 30th day of December, 1919, by which it appears that on such date said circuit court entered up a judgment in accordance with the directions of the Kansas City Court of Appeals. It is charged in respondents’ brief that the term has elapsed, and that judgment was not appealed from by any of the lien claimants. We judicially know that the term had elapsed, and further that no appeal can be taken from a judgment in a circuit court which has been entered by the express direction of an appellate court. This states the case for the single point, which we deem settles what our judgment here should be, on the record before us.

I. The writ of certiorari} such as we have in this case, has one particular function, and that is to prevent contrariety of opinions upon question of law and equity in this State. Of course- the party who applies for our writ as against the judgment of a court of Appeals has the further interest of having an adverse judgment quashed. So as to the applicant for our writ, if he is successful in case> a double purpose has been subserved-, (1) contrariety of opinions has been thwarted, and (2) the adverse judgment as to him lias been quashed. But what ever the result of our superintending control of the appellate courts may be by our writ of certiorari, it is with this court a purely discretionary writ. The great number of applications refused, and the few granted, by this court, bespeak the discretionary character of this writ in this court. The books bespeak the further fact, that when upon a full hearing, we conclude that our writ was improvidently granted, we have always promptly quashed the same. So we need not seek further authority for the fact, that with this court, this character of a writ of certiorari, is purely discretionary. Our whole course of action so shows.

II. In this case however we have a new situation urged for the quashing of our writ. It is urged that the application Avas not timely made; that relators were guilty of laches in not acting sooner. We think that there is substance in this contention. The application Avas made more than a year after the opinion of the Court of Appeals Avas Avritten and handed doAvn, and more than n“le months after the court had overruled the motion for rehearing. Of course the opinion was not a finality until the motion for rehearing was overruled. Pending such motion the Avhole matter Avas in the breast of the court, but Avhen it was overruled, the opinion Avas a finality, so far as the Court of Appeals Avas concerned, unless the court, at the same term, of its oavu motion, changed its opinion and judgment. Such was not done in this case. The relator here waited nine months from the time the motion for rehearing Avas overruled. Not only so, but it- waited until after the law directs that the Court of Appeals mandate should go down, and until after such mangate had no fact gone doAvn, and the circuit court acting thereon, entered up the judgment directed by the Court of Appeals. In other words in this particular case the judgment of the Court of Appeals had been fully exe * cuted, some seven months before there was an application here to have that judgment reviewed and quashed through our writ of certiorari. Was such application timely under these facts? We think not, and for reasons which follow.

III. Neither our statutes nor the rules of our court fix the time limit for applications for writs of certiorari. The question is one of first impression in this court, and one to be determined by reason, rather than authority. State laws, limiting and enlarging, the old common-law writ of certiorari are so divergent and variant, that their cases furnish but little light. It is clear that the aggrieved party should be granted by the Appellate Court, ^ notice is given of a-desire'to apply for our writ of certiorari, a reasonable time to make such application, and procure our ruling thereon. This the appellate courts of this State have always done so far as we have been able to learn. Nor is it shown in this case that the Kansas City Court of Appeals failed to give this applicant a reasonable time upon his application. In fact this relator made no suggestion to the Kansas City Court of Appeals about its desire to apply for a writ of certiorari. The record before us shows that Waterson Brothers, another lien claimant, on November 20, 1919, filed an application for stay of mandate until they could make application, and in their application it is suggested that they were informed and believed that Berkshire Lumber Company contemplated a like application for our writ. The record is silent as to what ever became of Waterson Bros, application to stay mandate, and singularly silent as to when the court’s mandate went down to the circuit court. From the certified judgment of the circuit court we know that the mandate was there on December 30,1919, the day upon which the circuit court fully executed the judgment of the Court of Appeals. Thus it will be seen that the relator in the instant case sat idly by from November 10th to December 30-th, without applichtion to this court, and permitted the judgment of the Court of Appeals to be fully executed by and through their non-action. The present relator did not act within a reasonable time, and so far as this record shows, the Kansas City Court of Appeals did not refuse to give any of the aggrieved parties a reasonable time in which to take their action in this court. The filing of their application and the granting of out writ thereon, would have stayed all further proceedings in the Court of Appeals. In fact in prohibition cases we have ruled that the filing of the application, and notice thereof to the circuit judge suffices to stay his hand. [State ex. rel. v. Board of Trustees, 186 S. W. l. c. 681.] Same rule should apply in certiorari.

In the reply brief of relator it is urg;ed as an excuse for the delay that they brought in this court an action in mandamus to compel the Court of Appeals to so write their opinion as to state the facts, as a preliminary step toward filing the present action. -We are asked to examine our record as to this, or rather to judicially know this fact. Whether proper or improper, we have examined our records, and the application for mandamus was not filed until April 17,1920, and was refused by us on April 30, 1920. So that it appears that no steps were taken by relator until long after the circuit court had entered up its judgment in accordance with the directions of the Court of Appeals.

Under such circumstances after most serious consideration, we are forced to two conclusions (1) that the laches of the relator should require us to quash our writ, and (2) that where the Court of Appeals has, upon request of an aggrieved party, stayed its mandate for a reasonable time to allow such party to apply to this court for a writ of certiorari, and after the expiration of such reasonable time, and no action has been taken by the aggrieved party, then their mandate should go down. And further, if thereafter, the judgment of the Court of Appeals sought to be quashed has been fully executed, our writ should not go, and if it has gone, it should be quashed. The question of a reasonable time we take next.

IV. We have but little to guide us in determining a reasonable time. The Court of Appeals, so far as we have been able to judge, have exercised a reasonable discretion in the staying of their mandates, in order to allow applications to be made to this court for writs of certiorari. Such courts have likewise continued their stay without suggestion from this court, until this court has passed upon the application. This is all that ag'grieved parties should want, and all to which they are entitled.

Section 1520, Revised Statutes 1919, requires the clerk of this court to certify a copy of the opinion to the circuit court within thirty days after it has been filed. The statute says that he “shall” so certify it within the thirty days. We construe our filing of the opinion for the purpose of this statute to- be the day upon which we overruled the motion for rehearing. This because motions for rehearing might pend more than thirty days, and if not thus construed we might have the clerk certifying out our opinion and mandate, with a motion for rehearing pending, which motion might thereafter be sustained. When so ruled we have a period of thirty days between the overruling of the motion, and the day upon which the clerk shall certify out the opinion. By Sec. 15, Article VI of the Constitution the foregoing statute is made'applicable to the Courts of Appeals. Having due regard to this statutory provision, we conclude that these thirty days should be the limit of reasonable time for aggrieved parties in the Courts of Appeals to get their application to this court. Of course Courts of Appeals, like this court, have control over their mandates and other process, and could grant a longer stay, if the necessities of the case required, and this court might be governed by extreme circumstances to hold a longer time to be within reason, yet it occurs to us that in the usual run of these certiorari cases this thirty day period, is a reasonable time, and in many cases more than reasonable time within which to apply to the Court of Appeals for a stay of mandate, and get their application for our writ duly served and filed here. The application to the Court of Appeals for stay of mandate should shortly follow the overruling of the motion for rehearing.

Under all the facts in this case, our writ heretofore granted, for the reasons aforesaid, should be quashed, and it is so ordered.

All concur; Woodson J., in result, for tlie reasons which. were expressed in the decision in Boeclder Lumber Co. v. Wahlbrink, when that case reached this court from St. Louis Court of Appeals.


author: HIGBEE, J. GRAVES, J.

text:
    IN THE MATTER OF THE ESTATE OF WILLIAM F. GOESSLING, deceased: ARTHUR C. GOESSLING, ELEANORA F. PETERS and EVELYN V. GOESSLING (Children of Testator), Appellants, v. WILHELMINA M. GOESSLING (Widow of Testator).
    In Banc,
    April 30, 1921.
    1. WILLS: Widow: Renunciation: Election. Testator’s estate was worth about $200,000, of which $160,000 was personal property and $40,000 was real estate. His homestead was worth about $14,000. His three children by a former marriage and his widow survived him. By his will he gave his widow the use of his homestead and $200 per month to be paid to her each month out of his estate during her life or widowhood and also all his household effects. He also left an annuity to his mother and then gave the rest of his estate to his three children equally, and appointed his wife and son executors of his will without bond. The executors presented the will for probate and made formal application for letters testamentary, which were granted and they qualified. They filed an inventory and made settlements of the estate in the probate court. These papers were prepared and signed by the son, but were also signed by the widow, at his direction. He employed attorneys to advise and assist him in the administration, the widow leaving the whole matter to him and taking no part therein. He paid her the monthly allowance provided by the will for eleven months, taking receipts therefor reciting that the payments were under the will. Neither the son nor the attorneys informed her that she had the right to renounce the will and she was ignorant of the law. Nearly a year after her husband’s death she first learned of her right to renounce the will and at once executed and filed her renunciation to take under the will. She and testator’s infant daughter, of whom the will appointed her guardian, continued to reside in the homestead where they were living when the cause was tried in the circuit court. After her renunciation was filed the monthly allowance was paid to her for a year and she receipted for these payments as being “on account of her share of the income of said estate.’’ She also received household goods appraised at $445. 'In addition to the payments to the widow, no part of the personalty was distributed except the payments to testator’s mother and an allowance to the daughter made under order of the probate court. The entire personal estate, less the above mentioned payment, was in the hands of the executors. There was no evidence that either of the children had acted upon or been prejudiced by the fact that the widow had received the monthly payments. Held, (1) That the widow had the right to occupy the homestead rent free until her dower was assigned and her occupancy was passive and no more indicative of claim under the will than under the right of quarantine; (2) That she was entitled absolutely without election on her part, to a child’s share of the personal estate, in this case one-fourth or approximately $40,000; (3) That all of her acts having been done in ignorance of her legal rights and she having renounced the will within the time and in the manner required by the statutes, and 'the other parties interested in the estate not having been prejudiced by what she had done, she was not estopped to renounce the will and was not to be held as having elected to take under it. [Graves, Elder and J. T. Blair, JJ., dissenting.]
    2. -: -: -; Bequest of Personalty. A bequest- of personalty to a widow does not bar her dower in real estate; yet, if the bequest be in lieu of dower, she cannot accept the bequest and also her dower, but is put to her election.
    3. -: -: -: Stare Decisis. The question raised by the appeal in this case has been settled by repeated decisions of the Supreme Court, which have now become a rule of property, the adherence to which is indispensable to the due administration of justice.
    Appeal from St. Louis City Circuit Court. — Hon.-Rhodes E. Cave, Judge.
    Affirmed.

      Elliott W. Major, Charles G. Revelle and Lambert E. Wdither for appellants.
    (1) The acts of the widow under the will, such acts being' inconsistent with any other theory. Moseley v. Bogy, 272 Mo'. 319; Davidson v. Davis, 86 Mo. 440; Mendenhall v. Mendenhall, 53 N. C. 287; Allen v. Allen. 321 N. C. 328; Treadway v. Payne, 127 N. C. 436; State ex rel. v. Holtkamp, 185 S. W. 204, 205; Syme v. Badger, 92 N. C. 706; Wood v. Trust Co., 265 Mo. 511; Steepler v. Silberberg, 220 Mo., 271; Casles v. Gray, 159 Mo. 595; Young v. Boardman, 79 Mo. 186; Stone v. Cook, 179 Mo. 537; Pox v. Wendies, 127 Mo. 511; Brant’s Win, 40 Mo. 276, 64 L. R. A. 287. (2) When one is put to an election between two inconsistent courses and first adopts one by some act inconsistent with the other, such is an election which cannot after-wards be recalled. Stone v. Cook, 179 Mo. 534; Moseley v. Bogy, 272 Mo. 329; Ashlock v. Ashloek, 52 Iowa, 322; Mitchell v. Yest, 136 N. W. 1054. (3) Entirely without regard to the question of her election by acts her conduct in occupying the mansion which was of much greater value than her homestead rights and in accepting the bequest of $200 per month to which she was not entitled except under the will, and her various other acts which led others to believe that she had accepted the will estops her from renouncing and rejecting the same. Zook v. Welte, 156 Mo. App. 714; Lackland v. Stevenson, '54 Mo. 108; Hart v. Giles, 67 Mo. 175; Wood v. Trust Co., 265 Mo. 511; 1 Woerner’s Am. Law of Adm. (2 Ed.) 500; Stone v. Cook, 179 Mo. 534. (4) The widow at all times had full knowledge of the value of the estate and of what the will gave her and, so knowing, performed the acts above recited. She at no time complained of the nature or extent of the provisions made for her by the will and indicated no dissatisfaction therewith until' more than eleven months thereafter. She Avas a woman of intelligence and. business qualifications. She knew that reputable attorneys had been employed to advise her and her co-executor upon all legal matters, and she had ready access to them as well as to the probate court and others from whom she could have reeeÍA7ed legal information. Her alleged lack of legal knowledge and information cannot operate to recall an election theretofore clearly made. Light v. Light, 21 Pa. St. 407; Woerner, Law of Admin. (2 Ed.) sec. 119, p. 269; Moseley v. Bogy, 272 Mo. 333; Underhill on Wills, sec. 731. (5) The statutory provisions that a testamentary gift by a husband to his wife of an interest in real estate shall be in lieu of dower unless otherwise declared by the will, and that in such case the widow shall not be endowed in any real estate of the husband unless she shall within the time and in • the manner prescribed by the statute refuse to accept the provisions made for her by the will, have no application to the personal estate. Halbert v. Halbert, 19 Mo. 453; Pemberton v. Pemberton, 29 Mo. 408; Bryant v. Christian, 58 Mo. 103; Glenn v. Gunn, 88 Mo. App. 429. (6) By Sec. 349, R. S. 1909, when a husband dies leaving a child or children or other decendants, the widow is entitled absolutely to a share in the personal estate belonging to the husband at the time of his death, equal to the share of a child of such deceased husband. If the husband makes a different provision for his wife by will, she is put to her election, but there is no statute fixing’ the time or manner of signifying her election. 'Hayden’s Admr. v. Hayden’s Admr.,’ 23 Mo. 398; Glenn v. Gunn, 88 Mo. App. 429. (7) Acceptance by the widow of the provisions of her husband’s will in her favor will defeat her statutory or so-called dower right in the personalty when, as in this case, shell provisions are inconsistent, with her enjoyment of that right. Sehwatken v. Daudt, 53 Mo! App. 1. (8) Acceptance of a part of the benefit under a will constitutes an acceptance of the whole will. Wood v. Trust Co., 265 Mo. 511; 40’ Cyc. 1895; State ex reí. v. Holtcamp', 185 S. W. 204.

      Geo. W. Lubke and Geo. W. Lubke, Jr. for respondent.
    (1) Every widow is given by statute the right to renounce the provisions made for her by the will of her husband. R. S. 1909, sec. 36Í. (2) No act on the part of the widow, however solemn and formal, during the period within which she may renounce the provisions of the will, prevents her from renouncing the will, if she so chooses. Bretz v. Matney, 60 Mo. 444; Register v. Hensley, 70 Mo. 189; Spratt v. Lawson, 176 Mo. 175; Eggers v. Eggers, 225 Mo. 116; Orchard v. Stove Co., 264 Mo. 554. (3) Causing her husband’s will to be probated and acting as executrix thereunder does not deprive the widow of her right to renounce the provisions made in the will for her. Simonton v. Houston, 78 N. C. 408; In re Gwin, 77 Cal. 314; In re Smith, 108 Cat. 121; In re Frey, 62 Cal. 661; Tyler v. Wheeler, 160 Mass. 206; Reeves v. Garrett, 34 Ala. 558; Benedict y. Wilsmarth, 46 Pla. 536; In re Estate of Proctor, 103 Iowa, 232; Milner v. Davis, 120 Iowa, 231; Williamson v. Bout, 184 N. Y. 605; Pace v. Pace, 271 111. 114; Whitridge v. Parkhurst, 20 Md. 62; Taylor v. Brown, 2 Leigh (Ya.) 419; Cameron v. Cameron, Ohio Probate, 157. (4) The occupation by the widow of the homestead cannot be regarded as an acceptance of the provisions of her husband’s will because the statute secures to her the right to occupy the same until her dower is assigned or she elects to take a child’s part of the estate. R. S. 1909, sec. 366; Roberts v. Nelson, 86 Mo. 21; Wigley v. Beauchamp, 51 Mo. 544; Keene v. McVov, 206 Mo. 42. (5) No election made by the widow is binding on her unless made with full knowledge of the circumstances and of her rights and with the intention of making an election. Pay-ton v. Bowen, 14 R. I. 375; Milliken v. Milliken, 37 Ohio St. 460; Woodburn’s Estate, 138 Pa. St. 606; Gam v. Gam, 135 Ind. 687; Hill v. Hill, 88 Ga. 612; Stone v. Vandermark, 146 111. 312; Yorkey v. Stinson, 97 N. C. 230; Wagner v. Wagner, 111 Ya. 326; Owens v. Andrews, 17 N. M. 597, 49 L. R. A. (N. S.) 1072; Watson v. Watson, 128 Mass. 152; 1 Woerner on Admin. (2 Ed.) sec. 119. (6) The property received by the widow under the provisions of the will being much less than that she would have the right to take under the law without reference to the will, the doctrine of election has no application to the facts in the case at bar. Burgess v. Bowles, 99 Mo. 548; Ball v. Ball, 165 Mo. 327. (7) The acts of the widow to the time of filing her renunciation of the provisions of the will for her constitute no estoppel, because: first, she acted in ignorance of her legal right to renounce the provisions of the will, and second, no one interested in the estate of the deceased has acted on her conduct to his detriment. Garesche v. Inv. Co., 146-Mo. 451; Herman on Estoppel, sec. 1062; Spratt v.' Lawson, 176 Mo. 179; Egger v. Egger, 225 Mo. 145.
   HIGBEE, J.

William F. Goessling died October 1, 1912, testate, leaving an estate of the value of about $200,000, of which $160,000 was personal property and $40,000 real estate. His homestead was worth about $14,000. He left surviving him three children by a former marriage, the appellants, and his widow, the respondent, who was forty-five years of age. By the first clause of his will,executed September 23, 1912, he directed that his debts be paid and that his executors take charge of all his property. The other provisions of the will are as follows:

“Second. I will and direct to my dear wife, Wilhelmina M. Goessling, the use of the homestead, No. 2932 University Street, St. Louis, Missouri, and the sum of two hundred (200) dollars to be paid to her each month, out of my estate, during her life or so long as she may remain my widow. I also give and bequeath to her all of my household effects of whatever nature or kind.
“Third. I will and direct to my mother, Mrs. William Goessling, the sum of fifty (50) dollars, to be paid to her each month out of my estate. '
“Fourth. I devise and bequeath to my three children, namely, Eleanor a F. Peters, wife of Frank E. Peters, and Arthur C. Goessling, and Evelyn Y. Goessling, all the rest and residue of my estate of any nature or kind, to be divided share and share alike.
“Fifth. I hereby request and-appoint my dear wife, Wilhelmina M. Goessling, to act as guardian for my daughter, Evelyn Y. Goessling, until she become of age.
“Sixth. I hereby appoint Frederick W. Goessling and Wilhelmina M. Goessling, my wife, as executors of this, my last will, requesting’ that they he permitted to act without giving any bond. ’ ’

On October 10, 1912, Frederick W. Goessling and the widow presented the will for probate and made formal application for letters testamentary. Letters were granted and the executor and executrix qualified without 'bond.

A supplemental final settlement was filed June 17, 1915, showing a net balance of $158,733.42, which was approved.

On the same day the three children of the testator filed a petition in the probate court praying an order of distribution in accordance with the terms of the will. This petition recites that the testator by the will gave to his widow $200 per month and the use of the homestead property during her life or widowhood, also all the household property, and that there be paid to the testator’s mother $50 per month during her life; that the remainder of the estate was devised to his three children in equal shares. It further recites that the monthly payments to the widow of $200 were made to and including October, 1914; that the widow duly qualified as executrix of the estate and with her coexecutor filed an inventory of the estate, and the semi-annual and final settlements; that she occupied the homestead which is of the value of $13,000; that she has retained goods and chattels and the household furniture of the testator of the appraised value of $975, and that by her acts aforesaid she elected to take under the will and did waive and estop herself from renouncing the will and the attempted renunciation of said will, filed by her September 25, 1913, is of no effect. Wherefore they pray that the remainder of said estate be distributed in equal parts to the petitioners, subject to the charge thereon of paying to the widow $200 per month during life or widowhood, and $50 per month to the mother of testator during life. On December 6, 1915, the probate court made an order that the executors pay to the widow $2800 in payment of the monthly allowance of $200 per month, under paragraph 2 of the will, for the months of October 1, 1914, to December 1, 1915, inclusive; $50 per month to the mother of the testator for such period as she may not have been paid, and that the remainder of said property be turned over to the children of the testator as prayed, subject to the lien and charge as aforesaid.

From this order an appeal was taken to the circuit court where, on April 16, 1917, the judgment of the probate court was reversed and the cause remanded. An appeal was taken from this judgment. From the evidence it appears that Frederick W. Goessling was a man of affairs. He prepared and signed the inventory. Mrs. Goessling also signed it, by his direction. He personally attended to the administration of the estate, paid the widow her monthly allowance of $200 for eleven months, tailing receipts therefor reciting that the payments were under clause two of the will. He prepared the settlements which she also signed by his direction. He employed attorneys to advise and assist him in the administration. Mrs. Goessling took no part in this but left the administration of the estate wholly to the coexecutor. Neither he nor the attorneys informed Mrs. Goessling that she had the right to renounce the will. She was ignorant of the law. In September, 1913, she first learned that she had that right, and at once executed her renunciation to take under the will which was filed September 25, 1913. She and the infant 'daughter of the testator, who was sixteen at her father’s death, continued to reside in the homestead where they were living at the time this cause was tried in the circuit court.

No part of the personalty of the deceased has been distributed except the payments of $50 per month to the testator’s mother, $75 to his daughter Evelyn for her support and maintenance under the order of the probate court, and eleven payments of $200 to the widow, receipted by her as being paid under the provisions of clause two of the will. She also receipted for payments of $200 per month from October 1, 1913, to September 1, 1914, inclusive, same “being payment to the undersigned on account of her share of the income of said estate.” She also received the household goods appraised at $445. These are the conceded, undisputed facts. There is no evidence that either of the children have acted upon the fact that the widow received the monthly payments of $200 or have been prejudiced thereby. The entire personal estate, less the payments above mentioned, is in the hands of the executors.

I. The statute gives the widow of the testator, without election on her part, a homestead of the value of $3000. Under Section 334, Revised Statutes 1919, she is entitled to occupy the entire premises until dower is assigned “without being liable to pay any rent for same.” [Ball v. Ball, 165 Mo. 312.] Under Section 319, Revised Statutes 1.919, she is also entitled absolutely, without election on her part, to a child’s part of the personal estate. Her share of the personal estate' would' be one-fourth, or approximately $40,000. In addition to this she is entitled to the household and kitchen furniture not to exceed $500 at its appraised value. [Section 105, R. S. 1919.]

By Section 328, Revised Statutes 1919, “if any testator shall, by will, pass any real estate to his wife, such devise shall be in lieu of dower . . . unless the testator, by his will, otherwise declared.” By Section 329, Revised Statutes 1919, it is provided, “that in such case the wife shall not he endowed in any of the real estate whereof her husband died seized unless she shall by writing duly executed and acknowledged . . . and filed in the office in Avhich the Avill is probated and recorded within twelve months after the proof of the Avill, not accept the provisions of said will.”

II. It is contended by the appellants that the occupation of the homestead by the widow Aims an election to accept the proAdsions of the will for the reason that the homestead was of the value of $14,000 and largely in excess of the value she was entitled to take under the statute on homesteads.’ [Sec. 5857, R. S. 1919.] Her occupancy was passive; no more indicative of a claim under the will than, under her right of quarantine. Under the s^e vestecl with an estate for life in the homestead, subject only to be defeated by her remarriage. It must therefore be clear that the will passed an interest in real estate to the widow of the testator.

It is also contended that by proving the will, making application for letters testamentary and by receiving the payments of the monthly allowances, the widow definitely elected to take under the will and waived her right of renunciation. These questions may be considered together.

III. In support of their contentions, appellants’ counsel rely on the following adjudications:

In Moseley v. Bogy, 272 Mo. 319, the wife of Bernard P. Bogy devised her real and personal estate, one-half to her husband and one-half to hér two children. He probated the will and qualified as executor. The plaintiff, a daughter of the testatrix, sued her father in ejectment for arL ulK^-v:^e(l one-fourth part of the property devised by the will. In his answer the defendant claimed possession by virtue of Ms curtesy. He also claimed an undivided half under the will. (l. c. 329.) He had a choice between two alternatives. Entitled to one or the other, he claimed both. We quote from page 331:

“He had full knowledge of his rights. He knew what the law would give him independent of the will. Having that knowledge he deliberately chose to. put the will into effect, declaring that he would execute its provisions; therefore he elected to take under it.”

[Davidson v. Davis, 86 Mo. 440.] Charles Rossin died in 3874, having devised to his wife, Mahal a, eighty acres in fee, a life estate in one hundred acres and all his personal property. To others he devised other tracts of land. They had no children. His wife was appointed executrix. She probated the will, qualified as executrix and continued to reside on the premises in controversy. She took all the personal estate of her husband under his will,' a provision greater than that allowed by law. She died within a year without having repudiated the will. Plaintiffs endeavored to do this in her stead. “Conceding that the above recited acts would not have precluded her from withdrawing such acceptance and asserting her right to a homestead, if she had lived, yet her acceptance of the provisions of the will cannot be withdrawn by her heirs. It is not a right transmissible by descent.” (4-44)

[Wood v. Trust Co., 265 Mo. 511.] Charles E. Wood resided in Washington, D. C. He died in February, 1908, without issue. By his will he gave to his wife $35,000 in cash and the income of $200,000 during her life. _ He also gave her in fee his residence property in Washington and all furniture, goods and chattels therein; also the rents of certain properties in Lebanon, Ohio, with power to dispose of them by will. The will was probated in the District of Columbia on May 28, 1908. On March 15, 1911, an authenticated copy of the will and of the probate thereof was filed and recorded in the probate court of Jasper County, Missouri, and in the recorder’s office of that county. Plaintiff, the widow, never filed a renunciation of the will but accepted all of its provisions. On September 9, 1911, she filed her election in the probate court of Jasper County' to take one-half of the real estate of her husband in this state. This action was to recover dower in real estate located at Joplin. Syllabus 1 reads:

“The statute of the Distinct of Columbia and the statute of Missouri are substantially alike in providing that whore property is devised by Avill to the Avife it shall be in lieu of doAver, and in declaring that unless she renounces the will Avithin a stated "time she shall be deemed to elect to take the property given her by the Avill and to surrender her statutory dower; and a widow, without children or other descendants, whose husband’s will gave her certain real estate in Washington, D. C., and a designated amount of money, Avho did not renounce the will probated in that city, is not entitled to claim one-half or any other interest in his real estate in Missouri, although she filed Avith the proper probate court in this State her election not to take under the will, and the will did not expressly say the devise and bequests to her Avere to be in lieu of dower.”

In Stoepler v. Silberberg, 220 Mo. 258, Bernard Steepler, who died'in 1867, owned the property in controversy as his homestead. By his will he devised the homestead to his widow for life, with remainder to his three children, two of whom died without issue. The widow, who was named executrix, probated the will and took out letters testamentary. She died without having renounced the will, but accepted it and always asserted that she owned a life estate only. It exceeded by $1500 the value ,of the homestead she was entitled to receive. She also received the personal estate. Judge Gantt, at page 271, said:

“In this case the widow accepted the provisions of the will, qualified as executrix and on various occasions announced she only had a' life estate in this lot. Her heirs could not now withdraw her acceptance. The right of election is not transmissible by descent. [Welch v. Anderson, 28 Mo. l. c. 298; Davidson v. Davis, 86 Mo. l. c. 444.]”

Stone v. Cook, 179 Mo. 534, was an action by one of the legatees, a daughter of the testator, to contest her father’s will after she had received $7000 from the executors. The rule was stated by Judge Marshall, at page 546, as follows:

“The sum of the matter then is, that as a general rule one who has received a benefit under a deed, will, or other instrument cannot thereafter contest its validity, but the general rule is subject to this qualification, that if the benefit was received without a knowledge of his right to elect between the benefit so conferred and of his right to the property' outside of the deed, will or instrument, or if he was induced by fraud or deception to accept the benefit conferred by the instrument, he may revoke the election and contest the validity of the instrument and claim under the law, provided that innocent third persons will not suffer by a revocation, and provided there has been no unreasonable delay in exercising the right of revocation, and provided he pay into court the benefits received.”

It is apparent that the rulings in these cases afford no support to the appellants’ contentions. Mrs. Goessling was ignorant of her right to renounce the will. It is true she occupied the homestead but she had that right under the statute. She received eleven payments of the monthly installments, but under the statute one-fourth of the personal estate was her absolute property. No one has been injured or prejudiced by anything she did. That is an essential element of estoppel. She can be charged with all payments when distribution is made. The statute, recognizes her ignorance of the law, although a feme sole, and allowed her one year in which to renounce the will. Every one dealing with her is presumed to have known she had that privilege and to have acted with reference to that contingency.

IY. We have not had our attention called to a case decided by this court in Avhich, under similar circumstances, it is held that a AvidoAv was estopped to assert this statutory privilege. On the contrary, all the adjudications in this State uphold her right to renounce the will at any time Avithin a year after probate. To deny this because a Avidow is a feme sole and swi juris would emasculate the statute. This is the general rule. [40 Cyc. 1897, citing Stone, v. Cook, supra.] If a person, although knowing the facts, has acted in misapprehension of his legal rights and in ignorance of his obligation to make an election, no intention to elect, and consequently no election, is to be presumed. [Watson v. Watson, 128 Mass. 152.] It is otherwise, however, where the position of other parties has materially changed. [Utermehle v. Norment, 197 U. S. 40.]

Watson v. Watson, 28 Mo. 300, is a leading case. On June 26, 1857, letters of administration were issued on the estate of Ringrose J. Watson. On September 18,1857, Frances Watson, his Avidow, elected to take a child’s part in lieu of doAver. Prior to this the widoAV had sued to recover doAver, one-third part of the land oAvned bv he'1 husband at his death, ‘ ‘ the same being the kind of dower which she hereby elects to take in the land.” Having made the election above mentioned, she filed an amended petition in which she claimed dower according to said election, alleging that at the time of filing her original petition she was ignorant of her true rights and interests in the premises and had been misinformed as to them by an attorney at law whom she consulted. The defense was that the widow was concluded by the election she had made in her original petition and that a subsequent election was of no effect, she having already made one. Of this opinion was the court and gave judgment accordingly. The judgment was reversed in an opinion by Judge Scott, in which all concurred.

The headnotes read as follows:

“1. To entitle a widow to dower under the first section of the dower act (R. C. 1855, p. 668) it is not necessary that she should elect so to take. No election to take dower' under the first section of the act can, as an election,- take away her right to elect to be endowed under the eleventh section of said act. To overthrow this right, there must be a binding contract or such facts and circumstances as will work an estoppel in pais.
“2. The institution of a suit by a widow to recover dower according to the first section of the dower act, and the declaration in the petition in such suit, which is signed and sworn to by her, that she thereby elects to take as her dower the third part of the lands of the deceased husband, will not take away her right to elect, within eighteen months after the grant of letters testamentary or of administration, to take dower under the eleventh section of said dower act.”

The ruling on this point in Watson v. Watson was expressly approved by Court in Banc in Keeney v. McVoy, 206 Mo. 42, l. c. 56. In the case last mentioned, at page 54, Judge Lamm said:

“We do not take as sound the proposition . . . that the mere passive enjoyment of her quarantine right byr living under the roof and by the fireside of her husband’s mansion house and partaking of her husband’s plantation (all of which the law says she may do and have until her dower is assigned or she elects to take a child’s part) fixes her status as a commonlaw dowress and defeats her right to take a child’s part. Such holding would breed confusion and perplexity. Whenever our Legislature intends such signal and drastic-results 'shall follow her passive acceptance of the law’s bounty for a month, a year, a lustrum or a decade or even two (as here) it must say so with an aye that is aye and a nay that is nay, so that its intendment is not in doubt; for as long as courts are left to inference in solving doubts, they will be solved in favor of a widow’s full dower rights.”

In Bretz v. Matney, 60 Mo. 444, the widow filed with the probate judge a formal, unqualified acceptance of the provisions made for her in her husband’s will. Within the year she filed her renunciation: Judge Nap-ton, speaking for the whole court, on page 448, said:

“Our law says, the widow shall be presumed to acquiesce in her husband’s will, unless within twelve months after its probate she chooses to renounce. The year is given her to renounce,' for reasons which are obvious. Her acceptance, hoivever repeated, amounts to nothing. She has a year within which to make up her final intention, and there is nothing in our statute to deprive her of this right. . . .
“And the ease of Light v. Light (21 Penn. St. 413), is referred to as supporting the position that an election by a widow to take under the will of her husband is an estoppel against her claiming dower, and that such election is binding on her, there being no fraud.
“We do not assume to controvert the propriety of these decisions under the statutes of the states where they were made, but our statute gives the widow twelve months within which she can reject her husband’s will, and requires no formal election between the will and the law; and, we suppose, she is entitled to the twelve months allowed her by statute, although she may formally accept the ivill every day in the year previous to the last. Such acceptance is purely voluntary, and made within the period during which our statute holds her irresponsible for her acts.
“Nor can the will of the husband impose an obligation which the law does not impose. Our statute is designed to confer privileges on’widows denied to men; and these privileges are conferred to prevent impositions upon them through their ignorance of law or the promptings of impulsive affection.
‘ ‘ The case in Pennsylvania seems to be based on the maxim that ignorantia legis neminem excusat; but this maxim our statute ignores or suspends, m regard to widows, for a definite period after the death of their husbands.”

This case was affirmed in Register v. Hensley, 70 Mo. 189.

In Spratt v. Lawson, 176 Mo. 175, the husband bequeathed to his wife a legacy of $7000 to be paid to her in seven installments. . She formally endorsed on the will her acceptance of this devise in lieu of dower and all other interest in her husband’s estate. She accepted the first installment of, $1000. It was contended that, as she was a feme sole under the Married Woman’s Act, her formal acceptance of the will and of the $1000 es-topped her from renouncing the will. The court, all concurring, held that all' wills must be considered as made with reference to this statutory right of the wife, however solemn the wife’s renunciation of its privileges at any time within the twelve months after the probate of the will.

In Egger v. Egger, 225 Mo. 116, the testator left an estate of the value of $300,000. By his will he gave his ■widow $75 per month. After the probate of the will the widow executed a formal acceptance thereof and afterwards received $75 per month up to the first renunciation and prior to a second renunciation and also received the $400 allowed to her by statute. It was held, following Spratt v. Lawson, supra, that these acts did not estop her from renouncing the will. It was further held that she could take a child’s share in the personal estate without renouncing the will (page 140). In disposing of the plea of estoppel interposed as a defense, the court says, at page 145: “As to the plea of estoppel, there is nothing to support it. The amounts that were paid to her were but a very small per cent •of what was due her. The document she was induced to sign, dated January 9, 1902, declaring that she elected to accept the provisions of the will in lieu of dower was without any consideration at all, and it could not have misled the executor to his disadvantage. ’ ’

Graves, Woodson and Lamm, JJ., concurred in these rulings.

In Orchard v. Store Co., 264 Mo. 554, in an opinion by Judge Bond, concurred in by all the membei's of Division One, the court followed Egger v. Egger, supra, holding that the widow takes the child’s share in the personal estate without reference to the will.

It is thus seen by this long array of unbroken precedents that in the case of a devise made by a husband to his wife, she is immune from the ordinary rules of election, waiver and estoppel. “Our statute is designed to confer privileges on widows denied to men; and these privileges are conferred to prevent impositions upon them through their ignorance of the law or the promptings of impulsive affection.”' [Bretz v. Matney, surpa.] But the ordinary rules applicable to persons sui juris,, insisted upon in the learned dissenting opinion, would fail in this case because, as said in Garesche v. Levering Inv. Co., 146 Mo. 436, foot page 451:

“To constitute an estoppel it must appear that the party acted with full acknowledge of all the material facts and circumstances, and with knowledge of his legal rights, and that the position of the party invoking the doctrine would be changed if the matter was opened up.’.’ (Citing cases.)

The doctrine of election can have no application or relevancy, where, as in this case, the property received is less than the widow is entitled to under the statute without reference to any will. [Burgess v. Bowles, 99 Mo. 548; Ball v. Ball, 165 Mo. 327.]

Ludington v. Patton, 111 Wis. 208, 86 N. W. 571, is an instructive case. Governor Ludington left an estate worth $1,250,000 to trustees in trust for. the benefit of Ms widow (her provision being less than one-fourth of' her legal rights), and the balance to his six children by a former marriage. The trustees, who were the executors, offered, on-behalf of the heirs, to increase the provision for her to one-half the value of her legal rights. Relying upon the trustees to treat her justly and believing that she was dependent upon the heirs for what she might obtain in excess of the provision in the will, she accepted it and signed the necessary paper to consummate the transaction, conveying her interest in the estate to the trustees, and a petition to probate the will. The contract was carried out for six years. In an action to set aside the contract, without offering to restore what she had received, it was held that the trustees hold a fiduciary relation and that her failure to take her legal rights grew out of a mistake of law, relievable- in a court of equity as readily as a mistake of fact. The analogy is obvious.

V. It is further contended by appellants that the statute authorizing a widow to renounce her husband’s will has no application to bequests of personal property; hence it cannot avail the respondent in this appeal from the order of distribution of the personal property. True it is that a bequest of personal property to a widow does not bar her dower in real estate. [Halbert v. Halbert, 19 Mo. 453.] But if the bequest be in lieu of dower the widow cannot accept the bequest and also have dower. She is put to her election. [Pemberton v. Pemberton, 29 Mo. 408.] Appellants claim in their petition for an order of distribution that the respondent had occupied the homestead and accepted the $200 monthly allowance under clause two of the will; hence the renunciation was of no effect and she was precluded from taking a child’s part in the personal estate. Respondent cannot take partly under the will and partly under the statute. One who accepts a beneficial interest under a will thereby adopts the whole will. This was so held in Wood v. Trust Co., 365 Mo. 511, where the widow took all the personal and real estate devised to her, and then claimed dower in land in Missouri. It was held that, not having renounced the will, she could claim nothing outside of its provisions. The respondent, having renounced the will, cannot be precluded by it from taking her share of the personal estate.

The question raised by this appeal has been settled by repeated decisions of this court. It has become a rule of property. The rule of stare decisis is founded on considerations of sound principles of public policy, it being indispensable to the due administration of justice. [15 Cyc. 916.] The judgment is affirmed.

Walker, G. J., Woodson and D. II. Blair, JJ., concur; Graves, J., dissents in separate opinion in which Elder, J., concurs; J. T. Blair, J., dissents.

GRAVES, J.

(dissenting). — I dissent in this case, and for reasons which follow.

By the will she got, at least, an estate for years, in what is called the homestead place. This homestead place was worth much more than she could claim under the law. But this to my mind is a subsidiary question. The real question is, whether or not she elected to take under the will. If she did elect to take under the wil’1 then this action fails! My views on the question here involved, may be concisely stated. One who accepts the terms of a will and receives benefit under it, is estopped thereafter from denying or renouncing the will. This is horn-book law, or should be so considered. The rule, under existing laws, should apply to the widow, as well as any other beneficiary under a will. And further, whilst the widow has a given time in which to make her election, it should not be said that after she had in fact made such election (by acts or deed) that she can later disown that election, solely on the theory that she is not bound by any previous election, but can at the last day of the statutory period make a, new election, and thereby over-throw what she had by her own acts, previously done. It is not really the doctrine of estoppel. It cuts deeper than that, and turns upon the question as to whether or not she has, in fact, elected to take under the will. An election, once made, should stand, irrespective of the time it is made. Of course it could not be made until after the death of the testator, because there could be no election prior to such time.

It is true our cases have used some broad language as to the rights of a widow to elect. She is, or was, given twelve months in which to elect to take under the law, or under the will, but when-she has elected, the matter is concluded. She can conclude this matter of election on the first day of her twelve months as well as on the last day, or any other day thereof. At this time she is sui juris, and entitled to no exemptions under the law. Her acts are just as binding upon her as the acts' of any other feme sole, or of a man. She can estop herself both by contract and acts, just as any other citizen. She is presumed to know the law just as any other citizen is presumed to know. Her election is not changed, because of her alleged ignorance of the law. In the cases urged by respondent, it will be found that other matters detu" mined the case. Thus in Egger v. Egger, 225 Mo. 116, there was a contract, and we. ruled that the contract was without consideration. So, too, in Spratt v. Lawson, 176 Mo. 175, the wife at the writing of the will had endorsed thereon her acceptance thereof, and this becomes a matter of contract without consideration. Other cases cited are not more applicable. The case of Mosely v. Bogy, 272. Mo. 319, rules the instant case and cannot be distinguished. If that opinion is right the present is wrong. In that case we were dealing with a widower, in this with a widow — both equal under present laws.

I admit that there are broad expressions in some of our opinions to the effect that the widow has the full twelve months, and that although for eleven months, and twenty-nine daj^s, she fully accepts the will, she can upon the last day, make another election and take under the law. In my judgment these loose expressions are wrong, and should be eliminated from the books. She can elect by acts as well as by deed, and should be bound as any other devisee in a will. And such election can be at the first of the statutory period as well as at the last. When so shown she is bound by.the election, not by estoppel w pais but by the fact of an election. Whether she lost or won by the election is immaterial. The single question is, did she elect to take under the will, and not whether her acts which constituted the election resulted in injury to others. I dissent for these reasons, somewhat hurriedly expressed.

Elder, J., concurs in' these views.