156 S.W. 759 (Mo.App. 1913), In re Estate of Ryan

Citation:156 S.W. 759, 174 Mo.App. 202
Opinion Judge:NORTONI, J.
Party Name:In re Estate of JOHANNA RYAN, Deceased
Attorney:Thomas D. Cannon for appellant. George W. Lubke and George W. Lubke, Jr. for respondent.
Judge Panel:NORTONI, J. Reynolds, P. J., and Allen, J., concur.
Case Date:May 06, 1913
Court:Court of Appeals of Missouri
 
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Page 759

156 S.W. 759 (Mo.App. 1913)

174 Mo.App. 202

In re Estate of JOHANNA RYAN, Deceased

Court of Appeals of Missouri, St. Louis

May 6, 1913

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm, Judge.

Reversed and remanded. (with directions).

Thomas D. Cannon for appellant.

(1) The court erred in denying appellant an allowance out of the estate of Johanna Ryan, deceased, in lieu of provisions not on hand at the death of his mother, for his support and maintenance, during the twelve months succeeding the mother's death. Johanna Ryan, deceased, was a widow within the meaning Sec. 119, R. S. 1909, and the movant is entitled to reasonable provision out of her estate for his support and maintenance during the twelve months after her death. Secs. 114, 115, 119, R. S. 1909; Lewis v. Costello, 17 Mo.App. 593; Rittenhouse v. Hicks, 23 Weekly Law Bul. (Ohio) 269; 10 Ohio Dec. 759; Kunkle v. Reeser, 5 Ohio 401, 404; 40 Cyc. 934; Anderson v. McGee, 130 S.W. 1040, 1043. (2) The court erred in denying to the appellant the sum of $ 400, as prayed out of the estate of his mother Johanna Ryan, deceased. At the death of Johanna Ryan she was a widow in contemplation of Sec. 119, R. S. 1909, and the movant was entitled to the sum of $ 400 out of her estate, under the provisions of Sec. 115, R. S. 1909. Secs. 115, 119, R. S. 1909; 40 Cyc. 934; Kunkle v. Reeser, 5 Ohio 401, 404; Rittenhouse v. Hicks, 23 Weekly Law Bul. 269; 10 Ohio Dec. 759; Anderson v. McGee, 130 S.W. 1040, 1043.

George W. Lubke and George W. Lubke, Jr. for respondent.

Because Ryan survived her Mrs. Ryan at her decease was not a widow within the meaning of the statute under which the appellant claims. Her divorce did not make her such. The term widow must, under the general statute of the State relating to the construction of statutes, be taken in its "plain or ordinary and usual sense." R. S. 1909, sec. 8057.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

Page 760

[174 Mo.App. 204] NORTONI, J.--This proceeding originated in the probate court and subsequently found its way by appeal to the circuit court. It involves the question of the right of a minor, under sixteen years of age, to allowances of absolute property out of the estate of its deceased mother, who at the time of her death was not a widow but rather a divorced woman. The circuit court denied the right to the allowances for the reason the mother of the minor child was not a widow at the time of her death, and the guardian and curator representing the minor prosecutes the appeal here.

[174 Mo.App. 205] It appears Johanna Ryan died in the city of St. Louis on the seventeenth day of September, 1910, leaving a minor son, Philip Ryan, aged seven years as her only surviving child. Mrs. Ryan left a small estate consisting of personal property which is in the hands of her administrator, appointed by the probate court of the city of St. Louis. Though Mrs. Ryan was unmarried at the time of her death, she was not a widow in the usual sense of that term, for the reason she had been divorced a few years before by virtue of a decree of the circuit court, and the care and custody of the minor child, Philip Ryan, was awarded to her. It appears, too, that her prior husband William F. Ryan, father of the child, Philip, who was born in lawful wedlock, survived her and is still living. The guardian and curator of the little child, Philip, presented an application to the probate court in proper form for the allowances out of his mother's estate which the statute awards to a widow out of the estate of her deceased husband. But it is said the probate court denied the application, and on appeal it appears the circuit court did so as well, for the reason Johanna Ryan, the mother of Philip, was not a widow at the time of her death.

The statute conferring the right to allowances as absolute property on minor children under sixteen years of age in the mother's estate purports to do so "in case a widow shall die" leaving such minor children. [See Sec. 119, R. S. 1909.] In denying the right to the allowances prayed for, the court proceeded on the theory that the word "widow" refers alone to a woman who has lost her husband by death and has not married again, and that therefore, though the little child was under sixteen years of age when his mother died, no right accrued to him under the statute because she was a divorcee and not a widow.

[174 Mo.App. 206] There can be no doubt that the word "widow" signifies "A woman who has lost her husband by death and is not married again." It is so defined in Webster's New International Dictionary.

Page 761

Bouvier's Law Dictionary defines a widow as "An unmarried woman whose husband is dead." Black's Law Dictionary and also Anderson's Law Dictionary define the word "widow" as "A woman whose husband is dead and who is not married again." The word "widow" is defined by a standard authority in the law as "A wife that outlives her husband; one whose husband is dead and who remains unmarried." [See...

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