CONCURRING OPINION I concur in the result of the principal opinion, but do not agree that the testatrix intended the term "executed" to refer to[762] the time when her estate should be finally administered.
By item 4 testatrix directed her executors to pay a note signed by her niece with testatrix as surety; and if the note be paid before the will is executed, to give the amount to the niece. I think this means that if the note is outstanding at the death of testatrix the executors shall pay it to the holder [thereby releasing the estate] and that, if the note is unpaid at her death, the testatrix did not mean that the executors should give the amount to the niece and rely upon her to pay the note to the holder. In this clause, I think the word executed clearly refers to the time the will should become effective at and by the death of the testatrix. The same construction of the termexecuted is, I think, authorized by item 2. There the will gives Arthur W. Hogg one-half the residue of the estate "according to his dower right as surviving widower under the laws of Missouri," but if he should die before the will isexecuted, [that is becomes effective] his dower and bequest shall remain a part of the estate. Arthur W. Hogg, having become the "surviving widower" by outliving the testatrix, took one-half the residue of the estate under the will as the equivalent of his dower right.
[6] But, even though the construction outlined above is incorrect, I think that Arthur W. Hogg took one-half of his wife's estate. In her life and up to the moment of her death she owned a large amount of real estate, subject to her husband's inchoate right of dower. Under the doctrine of equitable conversion, by the plain terms of her will, she transformed the real estate into personalty at the moment *Page 1118 of her death. By failing to renounce the will, her surviving widower consented to the equitable conversion, but did not thereby relinquish his dower right in the property in its converted form as personalty.
As reasoned and held in the principal opinion, the surviving widower, without making an election, was entitled to one-half the estate as personalty, subject to debts, "according to his dower right," and his actions as executor were not inconsistent with such right.