First Natl. Bk. of Kansas City v. Schaake, et al.
| Citation | 203 S.W.2d 611 |
| Decision Date | 16 June 1947 |
| Docket Number | No. 20950.,20950. |
| Parties | THE FIRST NATIONAL BANK OF KANSAS CITY, ET AL., PLAINTIFFS-RESPONDENTS, v. MATHILDA C. SCHAAKE, ET AL., MRS. ELIZABETH PFEIFFER, ET AL., DEFENDANTS-APPELLANTS. |
| Court | Missouri Court of Appeals |
Appeal from Jackson County Circuit Court. — Hon. Ben Terte, Judge.
REVERSED & REMANDED WITH DIRECTIONS.
William G. Boatright for Appellants.
(1) Under the will, with respect to the realty, Mathilda C. Schaake became entitled to a one-third interest for life absent a proper election by her or in her behalf to take one-half thereof subject to debts. Sections 306, 318, 325, 327 and 329, R.S. Mo., 1939; White v. Greenway, 274 S.W. 486 (Mo. App.); Lee's Summit Building & Loan Ass'n v. Cross, 345 Mo. 501, 134 S.W. 2d 19; McLain v. Mercantile Trust Co., 292 Mo. 114, 237 S.W. 506; Ross v. First Presbyterian Church, 272 Mo. 96, 197 S.W. 561; Brown v. Brown, 347 Mo. 45, 146 S.W. 2d 553 (Mo.); Colvin v. Hutchison, 338 Mo. 576, 92 S.W. 2d 667; Landis v. Hawkins, 234 S.W. 827 (Mo.). (2) No election having been made between rights under Sections 318 and 325 within the statutory period provided by Section 329, no right of election remains to be exercised by Mathilda C. Schaake or in her behalf. The statutes provide that the election as to dower must be made within twelve months, and no exception is contemplated with respect to an incompetent widow. Section 329, R.S. Mo., 1939; De Hatre v. Edmunds, 200 Mo. 246, 98 S.W. 744; Dougherty v. Barnes, 64 Mo. 159; Schweer v. Schweer, 86 S.W. 2d 969 (Mo. App.); Sec. 540, R.S. Mo., 1939. (3) The right to "election dower" under Sections 325 and 327, R.S. Mo., 1939, is created by statute and is unknown to the common law so that if any of the requirements set up as a condition to the statutory right are not met, the right does not come into existence. Section 327, R.S. Mo. 1939; Ferguson v. Long, 341 Mo. 182, 107 S.W. 2d 7; Allen v. Hartnett, 116 Mo. 278, 22 S.W. 717; Price v. Woodford, 43 Mo. 247; Wallace v. Crank, 324 Mo. 1114, 26 S.W. 2d 601; 74 A.L.R. 461; 147 A.L.R. 343. (4) Assuming arguendo that the Circuit Court had authority to relieve the widow and her guardian from the requirement that the election be filed within the statutory period, nevertheless there is no equitable consideration in this case justifying the court in granting such relief. Kleiman v. Geiselman, 114 Mo. 437, 21 S.W. 796. (5) If there were any power in the Circuit Court to renounce the will and to elect the benefits of Section 325, R.S. Mo., 1939, in the best interests of the widow the Circuit Court should have elected in favor of Mathilda C. Schaake taking under the will and taking a one-third interest for life. In re Connor's Estate, 254 Mo. 65, 162 S.W. 252; Manufacturers Bank and Trust Co. v. Kunda, 353 Mo. 870, 185 S.W. 2d 13.
Walter C. Walker for Plaintiffs-Respondents. F.D. Glore for Defendants-Respondents.
(1) Since no statutory election had been made by or for Mathilda C. Schaake, insane, the court properly construed Item Two of the will to give her only a dower interest in testator's real estate. Sections 318, 325, 327 and 329, R.S. Mo., 1939. (2) Since no election had been made for Mathilda C. Schaake, insane, within the time allowed by statute, the court had power to renounce the will, and make an election for her. In re Connor's Estate, 254 Mo. 65, 162 S.W. 252; Primeau v. Primeau, 297 S.W. 382, 317 Mo. 828; Manufacturers Bank & Trust Company v. Kunda, 353 Mo. 870, 185 S.W. (2d) 13; Keiman v. Geiselman, 114 Mo. 437, 21 S.W. 796; Shanklin v. Ward, 236 S.W. 64, 291 Mo. 1. (3) The circuit court acted for the best interest of Mathilda C. Schaake, insane, when it, in her behalf, renounced the provisions of the will and made an election that she take one-half of all the property of the testator, subject to the payment of debts.
This appeal was first granted to the Supreme Court, but that court held that it did not have jurisdiction because the title to real estate was not directly involved; and that the record did not affirmatively show that the net value of testator's estate was in excess of $7500. Whereupon the cause was transferred to this court. (See The First National Bank of Kansas City v. Mathilda C. Schaake, et al., 200 S.W. (2d) 326.)
The executors and trustee, The First National Bank, under the will of John Schaake, brought an action in the circuit court of Jackson County to have that court construe the will of John Schaake and to make an election whether it would be for the best interest of the testor's insane widow, Mathilda C. Schaake, to renounce the provisions of his will in regard to property bequeathed her, or to take one-half of his estate under the statutes of this state, since neither the testator nor his widow had any children. The trial court construed the will to devise to the widow only her dower interest, or a one-third interest for life, and not an absolute one-half interest in his estate, subject to debts; and also determined it was for her best interest to renounce the will and elected for her to take one-half of testator's estate, subject to his debts. The Alien Property Custodian of the United States has duly appealed from this decree on behalf of the five brothers and sisters of the testator, who are residents of Germany.
John Schaake died testate on September 5, 1943, leaving his widow, Mathilda C. Schaake; she had been adjudged to be a person of unsound mind in March, 1943, and Mildred Riordan was appointed her guardian and curator. Item two of his will provides: "I give and bequeath to my beloved wife, Mathilda C. Schaake, all that part of my estate to which she shall be rightfully entitled under and by virtue of the laws of descent and distribution of the state of Missouri". Item three gives sums of money to various religious and charitable institutions; item four devises various sums to his wife's relatives, in the event he survived her; item five devised and bequeathed the residuary estate to his widow, Mathilda C. Schaake, and The First National Bank of Kansas City, Missouri, as trustees for the testator's brothers and sisters and their heirs per stirpes. Five of his brothers and sisters reside in Germany and the Alien Property Custodian of the United States took all steps necessary, properly and legally, to represent said brothers and sisters.
The parties seem to concede that the trial court correctly ruled that under the will of John Schaake his widow was not entitled to an absolute one-half of his estate, but rather was entitled only to dower interest in the real estate. [They cite Secs. 306, 318, 325, 327 and 329, R.S. Mo. 1929; White v. Greenway, 274 S.W. 486; Lee's Summit Building & Loan Ass'n v. Cross, 345 Mo. 501, 134 S.W. (2d) 19; Klocke v. Klocke, 276 Mo. 572; McLain v. Mercantile Trust Co., 292 Mo. 114; Ross v. First Presbyterian Church, 272 Mo. 96; Brown v. Brown, 347 Mo. 45, 146 S.W. (2d) 553; Colvin v. Hutchinson, 338 Mo. 576, 92 S.W. (2d) 667; Landis v. Hawkins, 234 S.W. 827.]
We shall discuss this question later, particularly with reference to her interest in the personal estate.
The basic cause of this controversy is the fact that the guardian of Mrs. Schaake did not elect to renounce the will within the twelve months' period allowed by Sec. 329, and to take a one-half interest in the real and personal estate of the deceased, subject to payment of his debts, as provided by Item second of Sec. 325. Appellant contends that the guardian's failure to make such an election within the twelve months' period forever forecloses that right to the insane widow and leaves courts of equity without jurisdiction and authority to make such an election for her. Respondents contend that since Mrs. Schaake was insane at the time of her husband's death she was incapable of exercising her right of election and her guardian failed to do so for her and, under such circumstances, if it is for her best interest, a court of equity has jurisdiction and authority to make such an election even though the statutory time for making such an election has expired.
The guardian did not make an affirmative election because she received legal advice to the effect that item two of the testator's will devised to Mrs. Schaake one-half of the testator's estate and, acting on that advice, she omitted to file any renunciation of the will or election as to dower rights on behalf of her ward. More than twelve months after the will had been probated an attempt was made to sell certain of the real property in the estate and at that time the Kansas City Title and Trust Company objected to an attempted conveyance of one-half thereof on behalf of Mrs. Schaake, it being the opinion of the Title Company that Mrs. Schaake took only a one-third interest for life under item two of the will. After receiving the said Title Company's opinion, the executor and trustee filed this suit on August 25, 1945, almost two years after the will was probated.
Item two of the will devised to the widow the same rights and estate which the laws of descents and distributions give her. Under such circumstances she would take only dower interest in her husband's real estate as provided in Sec. 318, unless she duly elected to take a one-half interest therein, as provided in Sec. 325. We shall discuss later her interest in the husband's personal estate. To make an election to take one-half of the real estate under Sec. 325, it was necessary for her, under Secs. 327 and 329, to make an election in writing, properly acknowledged and filed in the office of the Clerk of the court in which letters testamentary shall be granted, and to file the same in the recorder's office of the county in which the administration is being had "within twelve months after the first publication of the notice of granting the same." That section also provides that when any widow is entitled to the benefit of such an election shall be of unsound mind or is a minor, ...
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