In re Estate of Ryan

Decision Date06 May 1913
PartiesIn re Estate of JOHANNA RYAN, Deceased
CourtMissouri Court of Appeals

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

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.

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.

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. 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 40 Cyc. 934.] All of these authorities concur to the effect that the word "widow" implies that a subsisting married relation should be severed by the prior death of the husband and not by a divorce decree. Therefore, though it appears, as it does, that Johanna Ryan had not remarried after the divorce and though she continued to be a single woman at the time of her death, she was not a widow.

But be this as it may, it is the duty of the court, in construing statutes, to interpret particular words by reference to the context so as to effectuate the intention of the lawmakers as reflected by the entire enactment, if such may be fairly ascertained, rather than to declare the precise meaning of the word standing alone. In this view, we believe the word "widow," employed in the second clause of the statute here involved, was intended to impart a broader meaning than that above defined.

But it is urged the statute (Sec. 8057) commands that in the construction of all statutes, words, other than those of technical import, should be taken in their plain or ordinary and usual sense, and therefore we must regard the word "widow" as intending no more than that which the dictionaries define it to mean. It is true the section of the statute referred to so reads, but its command is conditioned as follows in express words: "unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute." From this it appears that we are not required to accord the word "widow" its usual meaning if such meaning be plainly repugnant to the intent of the Legislature or of the context of the same statute and we believe it is.

There are several statutes touching upon the rights here involved and they are therefore in pari materia. Because of this they should all be considered together, to the end of ascertaining therefrom the obvious intent of the lawmakers. Those statutes are as follows:

"In addition to dower, the widow shall be allowed to keep as her absolute property a family Bible and other books, not to exceed two hundred dollars; all the wearing apparel of the family, her wheels, looms and other implements of industry; all yarns, cloth and clothing made up in the family for their own use; all grain, meat, vegetables, groceries and other provisions on hand and provided and necessary for the subsistence of the widow and her family for twelve months; her household, kitchen and table furniture, including beds, bedsteads and bedding, not to exceed the value of five hundred dollars." [Sec. 114, R. S. 1909.]

"If the grain, meat or other provisions allowed the widow in the preceding section shall not be on hand at the time of taking the inventory, the court shall make a reasonable appropriation out of the assets of the estate to supply such deficiency." [Sec. 115, R. S. 1909.]

"In addition to the above, the widow may take such personal property as she may choose, not to exceed the appraised value of four hundred dollars for which she shall give a receipt." [Sec. 116, R. S. 1909.]

"In case of the death of a father leaving no widow, but minor children under sixteen years of age, such minor children shall be entitled absolutely to the property and allowances that the wife would have been entitled to, under the provisions of articles I to XIII, inclusive, of this chapter, if she had survived her husband; and in case a widow shall die, leaving minor children under sixteen years of age, they shall be entitled to the same property and allowances absolutely as the mother was entitled to take at the death of her husband." [Sec. 119, R. S. 1909.]

Section 119--that last above copied--is the particular section here under review. Sections 114, 115 and 116--that is, those first above copied--confer the right to certain absolute allowances on the widow in respect of her husband's estate upon his death. These statutes have been parcel of our law from an early day. In 1879 the Legislature contributed what is now section 119--last above copied--as will appear by reference to section 110, Revised Statutes 1879. It is obvious that the Legislature by this section intended to confer on the minor children under sixteen years of age of a deceased "father leaving no widow" the identical right in respect of the widow's absolute allowances in his estate which obtains in her favor if she survives her husband. As to this the statute is clear. It is clear, too, that if an unmarried father should die, leaving such minor children and a prior wife surviving him with whom the marriage relation had been severed by divorce, such minor children would be entitled to the allowances otherwise available to the surviving prior wife had she continued to sustain that relation until the death of her husband.

This is true because the father was unmarried at his death and the divorced...

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