B. F. Coulter v. Lyda
| Decision Date | 09 November 1903 |
| Citation | 76 S.W. 720,102 Mo.App. 401 |
| Parties | B. F. COULTER, Executor, etc., Appellant, v. LEWIS M. LYDA, Administrator, etc., Respondent |
| Court | Kansas Court of Appeals |
Appeal from Randolph Circuit Court.--Hon. John A. Hockaday, Judge.
Judgment reversed and cause remanded.
Dysart & Mitchell for appellant.
(1) The property and money sought to be recovered in this action was the absolute property and allowance of the widow out of the husband's estate, free from debts and free from distribution among his heirs; said property vested in the widow the moment the husband died and descended to her estate, and heirs, and did not belong to the heirs of the deceased husband. Secs. 105-109, R. S. 1899; In re Klostermann, 6 Mo.App. 314; Bryant v. McCune, 49 Mo. 546; Cummins v. Cummins, 51 Mo. 262; Hastings v. Meyers, 21 Mo. 519; Eans v Eans, 79 Mo. 53. (2) It was the duty of the administrator to turn the $ 400 and the year's provisions over to the widow without any formal application in writing to him. Cummings v. Cummings, 51 Mo. 261; Woerner on American Law of Administration, secs. 77 to 92, inclusive; Whaley v. Whaley, 50 Mo. 577; Rhea v Greer, 86 Tenn. 59; s.c., 5 S.W. 595; Glenn v Gunn, 88 Mo.App. 423; Freeman v. Washtenaw, 79 Mich. 390; s. c., 44 N.W. 856. (3) The administrator resists the claim of allowances on the ground that the antenuptial contract bars such allowances. The plaintiff claims that the said contract is without consideration, against public policy and void, it secures to the wife no provision for her support during life, after her husband's death. Mowser v. Mowser, 87 Mo. 437; R. S. 1879, secs. 2201, 3296; R. S. 1889, sec. 6869; R. S. 1899, secs. 4340, 4529, 2950; Glenn v. Gunn, 88 Mo.App. 423; Pulling v. Durfee, 85 Mich. 34; s. c., 48 N.W. 48; Hasenritter v. Hasenritter, 77 Mo. 162. (4) The administrator further pleads against the widow's allowances the statute of limitations (secs. 185, 188, R. S. 1899). The plaintiff claims that the widow's allowances under the statute are not such claims as must be exhibited to the probate court in writing, sworn to, in two years or be forever barred. Those statutes only apply to debts owing by the deceased at the time of his death. Campbell v. Whitsett, 66 Mo.App. 444; Miller v. Miller, 82 Ill. 463; Rhea v. Greer, 86 Tenn. 59; s. c., 5 S.W. 565; In re Kichner's Estate, 19 Pa. Co. Ct. R. 216, 6 Pa. Dist. R. 137; Garrett v. Carson, 11 Mo.App. 290; Ferguson v. Carson, 13 Mo.App. 29; Bramell v. Adams, 146 Mo. 70. (5) The uncontradicted evidence shows that both the attorney for plaintiff and the attorney for the defendant had verbally called the attention of the judge of probate to the fact that the widow was claiming her allowances. Both he and the administrator knew it, and neither had the right to disregard it. The statute did not require that the claim be made in writing and by suit in court. (6) No formal claim in writing for these allowances was necessary. The claim was made to the administrator within a year after the death of the husband. Before the two years had passed demand was made of the administrator in writing and waiver thereon indorsed of any further notice by the administrator. The administrator had no right, in the face of these claims and of the statute, to pay out this money and ignore the claim and allowances to the widow given by the statutes of this State. The statute reserves to every person having an interest in the estate an appeal in such matters as are involved in this proceeding during, and for ten days after the term at which the matter complained of is decided, and if the administrator pays out the money of said estate before the time for appeal has elapsed, he does so at his peril. Secs. 278 and 279, R. S. 1899. (7) The appeal was properly taken and defendant appeared in circuit court and the cause was tried de novo. Secs. 278 and 279, R. S. 1899.
R. S. Matthews and Otho F. Matthews for respondent.
(1) No property is the absolute property of the widow except articles as set forth in section 105, Revised Statutes 1899. There is a wide difference between a "right" and the "ownership of property," for the "right" may be enforced in different ways as provided by statute, or not enforced at all, at the will of the party to whom the right belongs. The court only can order the money paid. It can order it paid at any time before the time as provided in section 109 has expired--that is before it is paid to creditors or distributees. Drowry v. Bauer, 68 Mo. 155; Cummings v. Cummings, 51 Mo. 261; Hastings v. Meyers, 21 Mo. 519. (2) The property allowed the widow under the provisions of sections 105, 106, 107 and 108, must pass through the probate court and be subject to the orders and judgments of probate court, and there can be no complete ownership in the same by the widow until this is done. It is the "right" that is absolute in the widow, to be exercised or not as provided by the statutes. McMillan v. Walker, 57 Mo.App. 220; Griswald v. Mattis, 21 Mo.App. 282. (4) The administration law requires the administrator to make final settlement at the end of two years from the time he takes letters. Sec. 232, R. S. 1899. He can not hold open the administration longer except cause is shown and the court grants longer time. (5) The personal dower and year's provisions sued for can not be recovered because the marriage contract is good between the parties so far as it affects their personal property. There is no question in this suit involving dower in real estate and the provisions of section 1950, Revised Statutes 1899, have no application to personal property. That section and the interpretation given to it by the courts, simply requires a settlement on the contemplated wife to bar dower proper in real estate. The term "dower," properly defined, is a widow's interest in lands of her deceased husband. Bryant v. McCann, 49 Mo. 546; Dudley v. Davenport, 85 Mo. 462. (6) Marriage contracts, as provided by secs. 4324, 4325, 4326, Revised Statutes 1899, are good as to personal property. The parties were of age and free to contract as to their property, and the contract is good as between them. If there was no other consideration in the marriage contract to make it good, the marriage itself is sufficient consideration. Marriage is declared by the courts to be the highest possible consideration. 19 Am. and Eng. Ency. of Law (2 Ed.), 1233, and authorities cited, both in England and the American States. Bank v. Reed, 131 Mo. 553; Andrews v. Andrews, 8 Conn. 79; Otis v. Spencer, 103 Ill. 617, 40 Am. Rep. 617; Jacobs v. Jacobs, 42 Iowa 600. (7) At the time the appellant sought to have his claim allowed in the probate court of Randolph county, the administrator of George W. Saunders' estate had been discharged, and the probate court could acquire no jurisdiction to hear the cause, and no court by an appeal can have jurisdiction of the discharged administrator on a proceeding begun in a probate court. (8) The plaintiff had no standing in probate court to appeal from the judgments on final settlement of Lyda, administrator of the estate of George W. Saunders. Likewise he had no standing to appeal from the order of discharge of Lyda as administrator. He at the time was neither heir, distributee nor creditor of the estate of George W. Saunders, deceased. Section 278, R. S. 1899.
This is a controversy that originated in the probate court. The facts which gave rise to it may be stated in about this way: In 1888 George W. Saunders and Sarah McCanne were married in this State. Both parties to the marriage were somewhat advanced in years. They each had been previously married and had children by such marriages. Both of them owned considerable real and personal property. Just preceding their marriage they entered into a written contract which was as follows:
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