LeWis v. Castello

• Decision Date: 05 May 1885
• Citation: 17 Mo.App. 593
• Parties: W. C. LEWIS, Guardian, Respondent, v. CHARLES CASTELLO, Administrator, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 593

W. C. LEWIS, Guardian, Respondent,

v.CHARLES CASTELLO, Administrator, Appellant.

St. Louis Court of Appeals, Missouri.

May 5, 1885.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

GEORGE W. ROYSE, for the appellant.

JAMES A. HENDERSON, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The guardian of two minor children under sixteen years of age applied to the probate court to have an allowance set out to them from the estate of their deceased mother, in the hands of her administrator, under the provisions of sections 107, 108 and 110, Revised Statutes. The statute relating to the administration of estates (Rev. Stat., sect. 105--109 inclusive) provides for certain allowances to the widow, of specific property or of money in lieu thereof, in addition to her dower. This statute is kindred in its character with the statute which exempts certain personalty from execution or attachment for debt, and is designed to preserve in the widow the exemption which the statute allowed to the husband in his lifetime, and to vest the property, or the proceeds thereof if sold, in her absolutely. The statute as it stood before the revision was defective in this, that it contained no provision for a similar exemption in favor of minor children in case of the death of their father leaving no widow, or of their mother, she being a widow. To remedy this, the revisers of the statutes of 1879 added the following section: “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 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.”--Rev. Stat., sect. 110.

It is under the second clause of this section that the present proceeding was instituted. An allowance was made by the probate court, and the administrator appealed to the circuit court. The question for decision was presented to the circuit court upon the following agreed statement of facts:

“It is hereby stipulated by the parties hereto, that the testimony in the above entitled cause would show, that Henry Porter, the father of plaintiffs, died a resident of the county of St. Louis, on or about the 8th day of July, 1883, leaving a will, which was duly admitted to probate by the probate court of St. Louis county, on the 16th day of July, 1883; that his widow, Amanda Porter, was named in and by said will as executrix thereof, but that she failed and neglected to qualify as such and in a short time afterwards, to-wit, on the 20th day of September, 1883, died intestate, a resident of St. Louis county, leaving the plaintiffs, David Porter and Clara Porter, her minor children under the age of sixteen years; that Charles Castello, Public Administrator of the county of St. Louis, took charge of the estate of said Henry Porter and Amanda Porter, on or about the 1st day of October, 1883, and has proceeded to administer said estate, and now has the same in charge; that the said Amanda Porter left property, consisting in household and kitchen furniture and provisions, of the value of one hundred and forty-six dollars and seventy cents; and of horses, cows and farming utensils of the value of four hundred dollars, amounting in aggregate to five hundred and forty-six dollars and seventy cents; that the said Charles Castello, Public Administrator as aforesaid, has the proceeds of the same now in his possession, and that said sums have not been paid out or otherwise disbursed by said administrator. That, at the time of the death of the said Amanda Porter, the surviving parent of said plaintiffs, all the parties were resident of the county of St. Louis, and that, shortly afterwards, some member of the family took charge of the minors and took them to the city of St. Louis; that Walter C. Lewis was appointed by the probate court of the county of St....