Blum v. Frost

• Court: Missouri Court of Appeals
• Writing for the Court: HOSTETTER, P. J.
• Citation: Blum v. Frost, 234 Mo.App. 695, 116 S.W.2d 541 (Mo. App. 1938)
• Decision Date: 18 May 1938
• Parties: G. W. BLUM, ADMINISTRATOR De BONIS NON CUM TESTAMENTO ANNEXO OF THE ESTATE OF TALLEYRAND C. FROST, DECEASED, RESPONDENT, v. UNICEY J. FROST AND JOE FROST, APPELLANTS

116 S.W.2d 541

234 Mo.App. 695

G. W. BLUM, ADMINISTRATOR De BONIS NON CUM TESTAMENTO ANNEXO OF THE ESTATE OF TALLEYRAND C. FROST, DECEASED, RESPONDENT, v. UNICEY J. FROST AND JOE FROST, APPELLANTS

Court of Appeals of Missouri, St. Louis

May 18, 1938

234 Mo.App. 695 at 709.

Original Opinion of May 3, 1938, Reported at: 234 Mo.App. 695.

Motion overruled.

HOSTETTER P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER P. J.

ON MOTION FOR REHEARING.

A motion for a rehearing has been filed on behalf of respondent urging that our opinion is in direct conflict with the opinion of the Supreme Court in Whaley v. Whaley, 51 Mo. 36, wherein the court said: "Under the Statute law of Missouri, where the widow has no dower assigned to her the growing crop on the land of the deceased husband goes to his executor or administrator and not to the widow."

It does appear on the surface that there is a conflict, but when rightly understood there not only is no conflict, but our opinion is in exact accord with the views set out in the Whalen case. A careful reading of the Whalen case discloses the fact that the deceased husband left a will, because, it is stated in the opinion that the executor harvested the wheat crop and sold it as assets belonging to the estate that the husband had, the previous fall, plowed the ground and sowed the wheat. It further appears that no dower had been assigned to the widow, and that she sued the executor in trespass for taking and carrying away the wheat, and lost her case. But the contents of the will are not set out and it cannot be determined whether the land on which the wheat was grown was devised to any one.

The concluding paragraph of the Whalen opinion reads as follows:

"In other States, where similar statutes to ours exist, the point has been decided in accordance with these views. In the case of Budd v. Hiler, 3 Dutch. 43, it was held that crops growing on the homestead farm at the time of the testator's death, go to the devisee if the land is devised; and if there is no devise of the land, then to the executor of the testator, and not to the widow, who remains in possession until her dower is assigned. [See also Parker v. Parker, 2 Pick. 236; Kaim v. Fisher, 2 Seld. 597.]" (Italics ours.)

In the instant case, the land, on which the growing crop of corn was located at the time of the death of the testator, Talleyrand C. Frost, was devised to three sisters...