First Nat. Bank of Golden City v. Cook

• Decision Date: 24 August 1934
• Docket Number: No. 5326.,5326.
• Citation: 74 S.W.2d 846
• Parties: FIRST NAT. BANK OF GOLDEN CITY v. COOK et al.
• Court: Missouri Court of Appeals

74 S.W.2d 846

FIRST NAT. BANK OF GOLDEN CITY v. COOK et al.

No. 5326.

Springfield Court of Appeals. Missouri.

August 24, 1934.

Rehearing Denied October 15, 1934.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

Action by the First National Bank of Golden City against Mary Cook, executrix of the will of Floyd Cook, deceased, and others. Judgment for plaintiff, and defendants appeal.

Reversed, and case certified to the Supreme Court.

Howard Gray, of Carthage, and H. W. Timmonds, of Lamar, for appellants.

Martin & Combs, of Lamar, and McReynolds & Flanigan, of Carthage, for respondent.

SMITH, Judge.

This is a proceeding filed originally in the probate court of Barton county by the First National Bank of Golden City seeking to have homestead admeasured and set off to Mary Cook, widow of, and Mildred Cook, minor daughter of, Floyd Cook, deceased. The defendants in that proceeding answered, claiming that homestead had already been set off as provided by our statutes.

The defendants have set out a clear statement of the case, and which statement we hereinafter set out almost in full. In fact, there is but little controversy over the facts in this case.

Floyd Cook died testate, January 4, 1930, a resident of Barton county, Mo. His will was filed in the probate court of Barton county, on January 21, 1930, and his will was duly proved and admitted to probate. Mary Cook, the widow, under the terms of the will, was thereafter appointed executrix. He left surviving him his widow, Mary Cook, and two daughters, Gay Cook and Mildred Cook, a minor, residents of Barton county, Mo., who were children of his marriage with the said Mary Cook; also six sons by a prior marriage. Due inventory and appraisement was made and filed in this estate in the probate court of Barton county, February 20, 1930. Several claims were filed against the estate of Floyd Cook, one by the First National Bank of Golden City, Mo. (hereafter called the bank), which was allowed by the probate court as a fifth class claim, and Mary Cook also filed a claim against the estate of Floyd Cook, which was allowed by the probate court as a fifth class claim. All of the claims except the claims of the bank and Mary Cook have been paid in full, and payments have been made on these two remaining claims.

The will of the said Floyd Cook, deceased, devised 60 acres in Barton county to the two above-named daughters, and an 80-acre tract in this county to his wife, Mary Cook; 12 acres of land in West Virginia to the six sons, and appointed Mary Cook as executrix, without bond.

The 60 acres above referred to were purchased in 1924, and described as the southwest quarter of the southeast quarter, and the south half of the northwest quarter of the southeast quarter of section 27, township 31, range 29, situated in Barton county, Mo., and that the said Floyd Cook, after he purchased said 60-acre tract in 1924, lived on the same with his wife and two daughters, as their home, until the time of his death (hereafter this described piece of land for brevity will be referred to as the 60 acres). This 60 acres was the homestead of Floyd Cook during this time.

All of the personal property was disposed of in the payment of debts and costs of administration, but were not sufficient to pay all of the allowed claims against the said estate, and it became necessary to sell real estate to raise funds with which to pay the debts of the said estate; also all of the statutory allowances to the widow were paid.

On January 8, 1931, and within the statutory time, in said probate court, Mary Cook, the widow, filed her renunciation of the will of Floyd Cook, declining and refusing to accept the provisions made for her in said will, and elected in lieu of such provision in said will that she be endowered and take under and by virtue of the terms and provisions of the statutes of Missouri in respect to homestead and dower.

On March 6, 1931, the said widow made application to the probate court, asking the court to appoint commissioners to set out her homestead from the premises and her dower interest, if any, to the real estate if the dower should exceed the homestead interest.

On March 6, 1931, the probate court made an order that the said Mary Cook, widow of Floyd Cook, deceased, was entitled to a homestead, and appointed three appraisers to set out such homestead, which appraisers duly qualified as such, and filed their report with said probate court on March 14, 1931, by which report the 60-acre tract was appraised at $1,500, and set off the said 60-acre tract as the homestead of the widow of Floyd Cook, deceased, and his minor daughter, Mildred Cook, which report of said commissioners so setting off such homestead to the widow and minor heir was by the probate court approved by its order of record in said court. Afterwards the 80-acre tract of land was, by due proceedings in the probate court, sold by the executrix to raise funds with which to pay debts of the estate, and due report thereof filed in said probate court, and in due time said report was approved and deed ordered.

The proceeds of the sale of this 80 acres were not sufficient to pay all of the unpaid claims, to wit, the bank claim, and the claim of Mary Cook, widow, but were applied in payment in proportion to said claims.

April 25, 1932, the said bank filed in the probate court of Barton county a petition or application against Mary Cook, as executrix of the will of Floyd Cook, deceased, and Mary Cook, Gay Cook, and Mildred Cook, charging that the order appointing said appraisers was null, void, and of no effect because there was no notice thereof, and prayed the court to appoint three commissioners to first set out to defendant Mary Cook, for the benefit of herself and said defendant Mildred Cook, the homestead allowed them by law, and from the residue of said real estate owned by the deceased, dower, if any, be admeasured. Due service was had upon all of the defendants, and the defendants filed answers to the bank's petition or application, and the issue raised by such petition and answer was presented to the probate court for hearing and consideration on November 23, 1932, and which said court after said hearing considered, ordered, and adjudged that the petition of the plaintiff be denied.

After this the plaintiff took an appeal from this decision of the court to the circuit court of Barton county, and the affidavit for appeal, the order granting the appeal, and the appeal bond were all in due form.

Mary Cook filed an application for change of venue from the circuit court of Barton county, and the circuit court sent the transcript in this case to the clerk of the circuit court of Jasper county, Mo., sitting at Carthage in division 1, and which case was tried, and, upon the conclusion of the introduction of all testimony by both sides, the judge of that court, a jury having been waived, decided against the defendants and appointed new appraisers.

The part of the judgment of the circuit court of interest here, after describing the real estate which was held to be the homestead of Floyd Cook in his lifetime, and that the defendant Mary Cook was his widow and Mildred Cook was his only minor child, and that as such they were entitled to homestead in said land, is as follows:

"The court finds that said Floyd Cook died on January 4, 1930, seized of said land; that at the date of his death the value of the whole tract exceeded the sum of $1,500. The court finds that the proceedings had in the Probate Court of Barton County, Missouri, in 1931, for setting out homestead in said real estate are and were wholly null, void and of no effect; that the Probate Court of Barton County, Missouri, should have sustained the petition of the plaintiff herein.

"It is therefore ordered and adjudged by the court that L. L. Pahlow, W. N. Ragan and Laverne Woody, resident land owners of Barton County, Missouri, be and they are hereby appointed commissioners herein; said commissioners shall first make oath as required by law for the faithful performance of their duties; they shall then proceed to set out to the defendants, Mary Cook, widow, and Mildred Cook, minor child, the homestead to the value of $1500 as of January 4, 1930; and from the residue of said real estate shall set out the dower of defendant, Mary Cook, as widow, but the amount of the interest of the widow as such dower shall be diminished by the amount of the interest of the widow in such homestead; and if the interest of the widow in such homestead shall equal or exceed one-third interest for and during her natural life in and to all the real estate of which said Floyd Cook died seized, then no dower shall be assigned to such widow. It is further ordered that said commissioners make written report of their proceedings herein to the Probate Court of Barton County, Missouri, the same to be made matter of record in said court; and the clerk of this court is directed to certify a transcript of the record and proceedings and the original papers herein to the Probate Court of Barton County, Missouri, whence the appeal herein was taken; and that plaintiff recover its costs herein, and that execution issue therefor."

Defendants filed a motion for new trial and one in arrest of judgment. Both were overruled, and the case is before this court.

The plaintiff in its statement contends, and we think properly contends, that there is but one question in this case. This question is expressed in the following language: "The theory back of the proceeding was that the prior appointment of commissioners on March 6, 1931, was coram non judice and void because no notice of the proceeding was given to First National Bank of Golden City, the largest creditor. * * * On this appeal the exact question in controversy is whether the proceeding of March 1931, for the appointment of commissioners, without notice to the principal creditor, was valid or void. If that proceeding...