Brown v. Keen

• Decision Date: 05 March 1918
• Docket Number: No. 14900.,14900.
• Citation: 201 S.W. 621
• Parties: BROWN v. KEEN.
• Court: Missouri Court of Appeals

201 S.W. 621

BROWN v. KEEN.

No. 14900.

St. Louis Court of Appeals. Missouri.

March 5, 1918.

Appeal from Circuit Court, St. Charles County ; Edgar B. Woolfalk, Judge.

"Not to be officially published."

Action by Walter C. Brown against Ellis Keen, executor of the will of Cora E. Brown, deceased. From judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Theodore C. Bruere, of St. Charles, for appellant. C. W. Wilson, of St. Charles, for respondent.

REYNOLDS, P. J.

Mrs. Cora E. Brown died testate, leaving surviving her husband, Walter C. Brown, but no children or lineal descendants. Her will gave her husband a half interest in her estate, also making some other legacies. Ellis Keen, brother of Mrs. Brown, was named as executor and duly qualified as such. Walter C. Brown, as widower, presented his petition to the Probate Court of St. Charles County, setting up that his former wife had died possessed of personal property to the amount of over $500 as appeared by the inventory of her estate ; that the Probate Court had allowed him $200 in lieu of provisions not on hand at the time of making the inventory ; that since the inventory was filed the executor had collected $9 interest and that the further sum of $19 interest is due, and the petitioner claims the balance of the personal property up to $400, under provisions of section 116, Revised Statutes 1909, in addition to that allowed under section 115, being, under section 120, entitled to the same allowances given a widow.

The Probate Court entered an order directing the executor to pay to Walter C. Brown, as widower, under the provisions of section 116, the balance of the personal estate that came into his hands, or that might thereafter come into his hands, belonging to the estate, after paying the widower his allowance in lieu of provisions not on hand, not exceeding the sum of $400. The executor appealed from this to the circuit court, where the matter was heard, tried, determined, and the circuit court ordered the executor to pay to Brown, as widower, $41.72, under the provisions of sections 116, 118 and 120, Revised Statutes 1909, ordering this certified to the Probate Court. From this Walter C. Brown has appealed.

It appeared at the trial of the case in the circuit court that the executor, on taking charge of the estate, had inventoried its personalty at $515.97; that out of this sum he had paid $135.90 for medical attendance at the last sickness of the deceased, and $166 for her funeral expenses. By subsequent accessions the amount of personalty in the hands of the executor was $551.62. Allowing the executor to deduct from this about $509.90, which he had paid out, the court then allowed to appellant this $41.72 as being on hand applicable to the payment of the $400 claimed.

It was in evidence that before paying these amounts of $135.90 and $166.00, the executor had consulted with Brown about paying them and Brown went with him to the office of the physician and place of business of the undertaker and was present when their accounts were paid and made no objection to it except that Brown wanted the executor, instead of paying these two bills, to apply $300 in his hands to the payment of a legacy left by Mrs. Brown to her brother. Under the order of the Probate Court the executor had paid Brown $200 in lieu of grain, meat and provisions not on hand, under section 115, Revised Statutes 1909. In opposition to the application of Brown for the payment of $400 out of the personal estate under the terms of section 116, the executor claimed that he had not sufficient on hand to pay this amount; that out of the total personalty, amounting to $551.62, he had a right to deduct the $135.90, paid the physician for attendance at the last sickness of the deceased, and $166 for funeral expenses, and other claims connected with taking the inventory and appraisement, amounting to about $9.90, a total of $309.90, leaving a balance in the personal estate of $241.72, from which was to be deducted the $200, paid to appellant, as widower, in lieu of provisions not on hand. On this the executor claimed that there was...