In re Estate of Strom

• Decision Date: 16 June 1908
• Citation: 111 S.W. 534,213 Mo. 1
• Parties: IN THE MATTER OF ESTATE OF MARY STROM, Deceased; JOSEPH M. STROM, Husband, Appellant
• Court: Missouri Supreme Court

111 S.W. 534

213 Mo. 1

IN THE MATTER OF ESTATE OF MARY STROM, Deceased; JOSEPH M. STROM, Husband, Appellant

Supreme Court of Missouri, Second Division

June 16, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.

Transferred to St. Louis Court of Appeals.

Charles B. Stark and Christian F. Schneider for appellant.

Ernest C. Dodge for respondent.

GANTT J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

On the 3d day of October, 1903, Mrs. Mary Strom died in the city of St. Louis, leaving a lot of ground fronting on Thomas street. She left surviving her one daughter by the name of Florence Strom. Mrs. Strom died testate, leaving a last will and testament, by which she devised and bequeathed all of her estate, real, personal and mixed, in trust to her brother William Porth for the benefit of her daughter Florence Strom until the latter should arrive at the age of twenty-one years, at which time the trustee was to pay to Florence five hundred dollars, and when the daughter reached the age of twenty-seven the trust estate was to terminate and all the estate to be turned over to the daughter discharged of the trust. Mrs. Strom also left a husband, the appellant herein, Joseph M. Strom.

After the death of Mrs. Strom, William Porth qualified as executor and took charge of the estate. On January 8, 1904, he filed his inventory and appraisement showing the said Thomas street property and $ 747.18 worth of personalty belonging to said estate. On December 7, 1903, the probated claims against Mrs. Strom's estate aggregated $ 1,508.50, and on that day the executor filed his petition in the probate court of the city of St. Louis under section 130, Revised Statutes 1899, wherein he prayed for an order authorizing him to take charge of the Thomas street property and collect the rent and revenues to pay the demands against the estate. The probate court made the order accordingly and thereupon the executor took charge of the real estate in question and the tenant who had for some time occupied the property as a tenant of Mrs. Strom during her life time attorned to the executor and paid him all the rent due to that day. No notice of this application by the executor was served on Joseph M. Strom, the surviving husband of Mrs. Strom.

On December 17, 1903, Joseph M. Strom filed his motion in the probate court to set aside the order directing the executor to take charge of the said real estate and rent the same for the payment of debts. That motion is in words and figures as follows:

"Now comes Joseph M. Strom, husband of Mary M. Strom, deceased, and moves the court to set aside and revoke and annul the order made in the above entitled cause on the 7th day of December, A. D. 1903, at the instance and request of the executor of said estate, authorizing him to collect the rents on the property in said order described, and for grounds of this motion states:

"That said order is in violation of and contrary to law; that the said Joseph M. Strom is the husband of said Mary Strom and was such at the time of her death; that there was born of the marriage between said Joseph Strom and said Mary Strom, and there is now living issue, viz., one female child named Florence M. T. Strom, now about -- years of age; that the deceased was the owner and seized in fee of the real estate described in said order, being house and premises known as No. 2708 Thomas street, city of St. Louis, Missouri, and now held by one Llewellen Boswell, as a tenant from month to month, at a monthly rental of $ 22 per month; that by reason of the premises your petitioner, said Joseph M. Strom, has an estate by the curtesy in said property and is entitled to the rents, issues and profits thereof; that said issues, rents and profits by reason of the premises is not liable for the debts of said Mary Strom, deceased, and her executor is not entitled to collect the same; that if said executor be allowed to collect the same your petitioner will be deprived of their enjoyment and defrauded thereby.

"Your petitioner further represents that said order was improvidently made in this that your petitioner had no notice or knowledge of the same until after it was made; that he had no opportunity to make this claim or present to the consideration of this court his rights and interests in and to said property; that the court was not informed and had no knowledge of his rights and interests in and to said property; that your petitioner was not a party to said proceeding, and that by reason of the premises the court had no jurisdiction in said matter, and said order could not deprive your petitioner of his rights and interests in said property.

"Wherefore, your petitioner prays this Honorable Court to make its order revoking, annulling and setting aside said order made on said 7th day of December, A. D. 1903."

At the said same term of court on December 19, 1903 both parties appearing said motion was submitted to the court on evidence offered on both sides and on January 22, 1904, said motion was by the probate court overruled. The court, however, in overruling said motion directed the executor to hold the rents and profits collected from said real estate separate from the other assets of the estate, and not to pay out the same pending further orders of the court. From the judgment of the probate court overruling the said motion, the said Joseph Strom appealed to the circuit court of the ...