In re Estate of Fritch
| Decision Date | 31 December 1913 |
| Parties | In the Matter of the Estate of GEORGE W. FRITCH, Deceased; ELIZABETH FRITCH, Administratrix, Respondent, v. LETITIA L. FRITCH, Intervening Creditor, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.
AFFIRMED.
Judgment affirmed.
Rassieur Kammerer & Rassieur for appellant.
(1) In presenting and prosecuting against the estate an application for an appropriation, and at the same time assuming to represent the estate as administratrix, respondent occupied inconsistent positions, and attempted to represent adverse interests; the action of the probate court on her application was therefore neither final nor conclusive on the creditors. State ex rel. Miller v. Bidlingmaier, 26 Mo. 483 485; State ex rel, Mueller v. Reinhardt, 31 Mo. 95; Clark v. Crosswhite, 28 Mo.App. 34; Freeman, Admr., v. Probate Judge, 79 Mich. 390; Heck v. Heck, 34 O. St., 369; In re Hutton's Est., 92 Mo.App. 132. (2) The administratrix was a statutory trustee of the estate, for the benefit of the creditors, and she was therefore bound to protect their interests, and could not assume to act for and against the estate at the same time. Desloge v. Tucker, 196 Mo. 587; Perkins v. Goddin, 111 Mo.App. 429; In re Est. of Horner, 66 Mo.App. 531; Orr v. Sanford, 74 Mo.App. 187; 2 Woerner, Admin. (2 Ed.), Sec. 334. (3) The action of the probate court upon the application of the widow-administratrix was the same as any other allowance made to an administrator during administration, and was open to review at any time during the administration and upon final settlement of the estate. In re Hutton's Est., 92 Mo.App. 132; Picot v. Biddle's Admr., 35 Mo. 29; 44; Kidd v. Guibar, 63 Mo. 342; North v. Priest, 81 Mo. 561; State ex rel. Scott 1. Greer, 101 Mo.App. 669. (4) The application having been made by the widow-administratrix, it cannot be deemed to have been made by the widow individually without regard to her office of administratrix, and as such the representative of the heirs and creditors, for to do so would foreclose the rights of those interested in the estate, without notice and without an opportunity for redress. State ex rel. Miller v. Bidlingmaier, 26 Mo. 483; Clark v. Crosswhite, 28 Mo.App. 34; In re Hutton's Est., 92 Mo.App. 132. (5) The widow-administratrix having assumed to act for adverse interests, the appropriation obtained as a result of her inconsistent conduct, was voidable, and subject to review at any time during administration, at the instance of any credtor or other party in interest. State ex rel. Miller v. Bidlingmaier, 26 Mo. 483; Clark v. Crosswhite, 28 Mo.App. 34; In re Hutton's Est., 92 Mo.App. 132; Freeman, Admr., v. Probate Judge, 79 Mich. 390. (6) The order of the probate court making the appropriation cannot properly be termed a judgment, as there was but one party before the court. It was the same as if a disinterested party had been administrator, and the court had acted on the widow's application, without notice to the administrator; in such a case, it is clear that the action of the court would be voidable, if not wholly void. State ex rel. Deems v. Holtcamp, 245 Mo. 655; Freeman, Admr., v. Probate Judge, 79 Mich. 390; Heck v. Heck, 34 O. St. 369; In re Hutton's Est., 92 Mo. 132. (7) (A) To constitute a valid judgment, the court must have jurisdiction of the parties, and each party to the action or matter in controversy must have an opportunity to be heard. Golahar v. Gates, 20 Mo. 236; Roach v. Burnes, 33 Mo. 319; Anderson v. Brown, 9 Mo. 638. (B) And where property rights of the parties are to be affected, the law will imply that notice was intended, even though the statute does not in terms require notice to be given. State er rel. Deems v. Holtcamp, 245 Mo. 655; State ex rel. Reid v. Walbridge, 119 Mo. 383; Brown v. Weatherby, 71 Mo. 152; Wickham v. Page, 49 Mo. 526.
Karl M. Vetsburg and Charles H. Franck for respondent.
(1) The order of January 9, 1911, making the allowance in favor of the widow is a judgment which became final when no appeal was taken therefrom according to law. Campbell v. Whitsett, 66 Mo.App. 444; R. S. Mo. 1909, Sections 289-290. (2) Probate courts have no equity jurisdiction. Their powers are fixed by statute and they cannot revoke a former decree and pass another for a less sum. Glover's Estate, 127 Mo. 153; Elliot's Estate, 27 Mo.App. 218; Woerner on American Law of Administration, (2 Ed.) Vol. 1, Page 205, Section 93; Pettee v. Wilmarth, 5 Allen 144; In re Stevens, 83 Cal. 322. (3) The laws of this State do not provide for or require notice to creditors of an application for an allowance to the widow in lieu of provisions. R. S. Mo. 1909, Sections 114, 115. (4) The laws of this State do not authorize or require the appointment of an administrator ad litem to represent the estate in the matter of a widow's allowance, where the widow is also administratrix. R. S. Mo. 1909, Sections 211, 289. (5) An allowance in lieu of provisions is not a demand within the meaning of Section 211, R. S. Mo. 1909. R. S. Mo. 1909, Section 289; Campbell v. Whitsett, 66 Mo.App. 444. (6) Even though the allowance be construed as a demand, appellant has no standing, because she has not attacked its allowance in the manner provided by law. R. S. Mo. 1909, Section 220.
This is an appeal from a judgment of the circuit court of the city of St. Louis, reversing and setting aside a certain order of the probate court of said city.
The respondent, Elizabeth Fritch, is the widow of George W. Fritch, deceased, and is the administratrix of the estate of her husband. On January 9, 1911, at the December term 1910, of said probate court, and while the estate was in process of administration therein, respondent, as the said widow of the deceased, made application to the court for an allowance to her in lieu of provisions, out of the funds on hand in said estate, under the provisions of sections 114 and 115 of the Revised Statutes of 1909.
Acting upon said application the probate court did, on the same day, enter an order appropriating to respondent the sum of six hundred dollars, in lieu of the grain, meat, vegetables, groceries and other provisions mentioned in section 114, supra, necessary for the subsistence of the widow for twelve months, and which were not on hand at the time of taking the inventory.
Thereafter, to-wit, on June 16, 1911, and at the June term, 1911, of said probate court, the appellant, Letitia L. Fritch, a creditor of said estate, filed a motion in the probate court praying for an order reducing the said allowance to respondent from six hundred dollars to two hundred dollars, upon the ground that the allowance made was excessive, that the estate was insolvent, and that respondent, as widow, had received her "absolute dower" of four hundred dollars, and her dower in the real estate, and should be satisfied with the amount of two hundred dollars, as an allowance in lieu of provisions.
Thereafter, on July 10, 1911, and at the same June term of said probate court, the latter made and entered an order reducing said allowance to respondent from six hundred dollars to the sum of three hundred dollars.
Thereupon the respondent appealed therefrom to the circuit court, and upon a trial there de novo, the latter court by its judgment vacated and set aside said order of the probate court of July 10, 1911; from which judgment Letitia L. Fritch, the intervening creditor, prosecutes this appeal.
The only question involved is whether the probate court had jurisdiction at a subsequent term to reduce the allowance originally made to the respondent as the widow of the deceased.
Appellant contends that the original order, made at the December term, 1910, of the probate court, was void, or at least voidable, for the reason that it was made ex parte, without either the appointment of an administrator ad litem, or notice to creditors or others interested in the estate; and that in any event it was not a final judgment, but was subject to review and correction at any time during the course of administration, prior to the final settlement of the estate.
It will be well, in the first place, to notice the statutory provisions concerning such an allowance to a widow, and the rule of decision prevailing with respect to the construction of these sections.
Section 114, Revised Statutes 1909, provides 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 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."
The next succeeding section, viz., section 115, is as follows:
"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."
These sections have been frequently construed by our courts with regard to the right of the widow in respect to the property mentioned in Sec. 114, and the allowance to her provided by section 115. In Campbell v Whitsett, 60 Mo.App. 444, decided by the Kansas City Court of Appeals, in treating of the nature of the allowance...
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