Cummings v. Cummings

• Citation: 51 Mo. 261
• Parties: MARY CUMMINGS, Plaintiff in Error, v. MARION CUMMINGS, Defendant in Error.
• Decision Date: 31 January 1873
• Court: United States State Supreme Court of Missouri

51 Mo. 261

MARY CUMMINGS, Plaintiff in Error,

v.MARION CUMMINGS, Defendant in Error.

Supreme Court of Missouri.

January Term, 1873.

Error to Cass County Circuit Court.

Terrill & Matthews, for Plaintiff in Error.

Notes, bonds and bills are such personal property as the law (W. S., 88, § 35,) contemplates in giving a widow four hundred dollars out of the personal property belonging to the estate of her deceased husband.

Johnson & Botsford, attorneys for Defendant in Error.

I. In allowing the widow to choose the additional personal property not exceeding the appraised value of $400, the statute (W. S., 88, § 35) obviously contemplates choses in possession, but not choses in action.

II. The terms of the statute, “appraised value” plainly exclude choses in action not susceptible of an accurate appraisment. The intention of the legislature was to allow the widow to retain such articles of personal property as might be of peculiar value to her. The construction of section 35, which limits the same to choses in possession, finds support in section 36, which provides for the choice being made before the personal property is “distributed or sold.” This language could not have any application to choses in action, which under the administration law are never “distributed or sold,” but which must be sued upon by the administrator and him alone.

III. The application was defective in not specifying the particular personal property she had chosen, even if she was entitled to the allowance claimed out of choses in action. While the widows' right under section 35, to personal property to the appraised value of $400, is not dependent on an election by her. (Hastings vs. Myers,' Adm'r., 21 Mo., 519) yet in the absence of such election she cannot receive specific articles of property, but will receive the amount in money. (1 W. S., 88, § 37.)

SHERWOOD, Judge, delivered the opinion of the Court.

This was an application by Mary Cummings, widow of James Cummings, deceased, “for personal property of said estate to the amount of four hundred dollars.” On the hearing of the application by the Common Pleas Court of Cass County, (a court possessed of probate jurisdiction), it appeared in evidence that there was then of the estate of the decedent, notes, money, etc., in excess of $3,000, including the promissory note of the administrator himself, which, inclusive of interest, amounted to over the sum of $700. It was also shown by the sale bill, that the personal property had been sold for $140 60. This was all the testimony. The court refused to grant the application, and after moving unsuccessfully for a new trial, the applicant carried the case by writ of error, to the Circuit Court of Cass County, where the judgment of the Common Pleas Court being affirmed, she brings her case here by writ of error.

The application in this case is based upon §§ 35, 36, and 37, p. 88, Vol. 1 W. S., which are identical,...