Hax v. O'Donnell

• Decision Date: 07 June 1938
• Docket Number: No. 24579.,24579.
• Citation: 117 S.W.2d 667
• Parties: HAX v. O'DONNELL.
• Court: Missouri Court of Appeals

117 S.W.2d 667

HAX v. O'DONNELL.

No. 24579.

St. Louis Court of Appeals. Missouri.

June 7, 1938.

Appeal from Circuit Court, Knox County; Emert C. Hilbert, Judge.

Action by Bertha Hax against Thomas O'Donnell, executor of the estate of Henry Hax, deceased, to obtain certain personalty in the estate set over to her absolutely on the ground that the personalty came into the possession of Henry Hax, deceased, with her written assent. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

S. H. Ellison, of Kirksville, for appellant.

J. C. Dorian and C. M. Smith, both of Edina, for respondent.

BENNICK, Commissioner.

This case arises in connection with the administration of the estate of Henry Hax, deceased, who died in Knox County, Missouri, on December 28, 1931. The particular matter in controversy is the question of whether plaintiff, the surviving widow, is entitled to have certain personal property in the estate set over to her absolutely upon the ground that the same came into her husband's possession with her written assent.

It appears that Mr. and Mrs. Hax were originally residents of the state of Nebraska, and that on August 1, 1916, while they were residing in that state, Mrs. Hax, the plaintiff herein, inherited the sum of $2,045 as her individual share of her mother's estate. The money came to her in the form of four checks which she promptly indorsed and handed over to her husband, who then himself indorsed them and cashed them at the bank upon which they were drawn. There was no denial of the fact that the deceased then and there reduced the proceeds of the checks to his own possession, and it is plaintiff's contention that her indorsement of the checks amounted to the giving of her "written assent" thereto. All this occurred, of course, while plaintiff and her husband were residents of Nebraska, a circumstance which is counted upon by the defendant executor as serving, along with other things, to defeat plaintiff's right to have the sum in question now set aside as her absolute property, not subject to the payment of her husband's debts.

Some two years after the deceased had reduced plaintiff's inheritance to his own possession the two of them moved to Missouri and established a residence in Knox County where they were residing at the time of the death of the deceased on December 28, 1931.

The deceased died testate, and thereafter, on January 16, 1932, the defendant herein, who had been nominated as executor in the will, was granted letters testamentary by the probate court of Knox County.

In due time there was filed an inventory and appraisement of the estate which disclosed that the deceased had died possessed of personal property appraised at $10,326.75, and of real estate in Knox County appraised at $1,000.

What provisions were made for plaintiff in the will does not appear, but evidently concluding that she could better herself by a renunciation of the will, she duly renounced the same, and caused her written renunciation to be filed in the probate court on October 11, 1932. By such instrument she not only signified her refusal to accept the provisions made for her in the will, but she also announced her election "to take one half of the estate of my deceased husband, which he owned at his death, together with all other property allowed me under the probate laws of the State of Missouri".

The deceased had died without any child or other descendants in being capable of inheriting, and in view of this circumstance, plaintiff's election was an exercise of the right given the widow by Section 327, R.S. Mo.1929, Mo.St.Ann. § 327, p. 215, to have her election to take common-law dower (a third part of her husband's lands to hold and enjoy during her natural life) as provided in Section 318, R.S.Mo.1929, Mo.St. Ann. § 318, p. 202, or else to take under the provisions of Section 325, R.S.Mo.1929, Mo. St.Ann. § 325, p. 212, which reads as follows:

"When the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: First, to all the real and personal estate which came to the husband in right of the marriage, and to all the personal property of the husband which came to his possession with the written assent of the wife, remaining undisposed of, absolutely, not subject to the payment of the husband's debts; second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband's debts."

Subsequently, on January 14, 1933, the instrument thus executed by plaintiff was filed in the office of the Recorder of Deeds for Knox County in compliance with the provision of Section 329, R.S.Mo.1929, Mo. St.Ann. § 329, p. 216. This requirement is for the reason that the widow's election as to what dower she shall take affects the title to realty (Brown v. Tucker's Estate, 135 Mo.App. 598, 117 S.W. 96), and in this case there is no question but that plaintiff's renunciation of the will and election as to dower were both made in due time and proper form.

On the same day, that is, on January 14, 1933, plaintiff filed in the probate court a further verified instrument in which, after setting up the fact that her husband had received and retained the amount of her inheritance from her mother's estate, she alleged that "said sum is due me from his estate, which I ask be paid me as provided in Sec. 325, probate laws of the State of Missouri, Statutes of 1929". In other words, what plaintiff was relying upon as the basis of her claim was so much of Section 325 as provides that when the husband shall die (as the deceased did) without any child or other descendants in being capable of inheriting, his widow shall be entitled to "all the personal property of the husband which came to his possession with the written assent of the wife, remaining undisposed of, absolutely, not subject to the payment of the husband's debts".

It appears that the probate court, perhaps at the suggestion of the defendant executor or his attorneys, erroneously chose to treat the paper thus filed by plaintiff as an ordinary creditor's demand against the estate, and so denominated and referred to it in whatever record entries were made in connection with it.

One of such record entries discloses that on January 17, 1933, the parties appeared in the probate court for a hearing on plaintiff's claim, and that on that occasion some one of them filed an affidavit to the effect that the probate judge was a material witness in the cause. Upon the filing of such affidavit the probate judge, under Section 2053, R.S.Mo. 1929, Mo.St.Ann. § 2053, p. 2646, became disqualified to sit in the case, and the same was thereupon certified to the circuit court of Knox County for that court to hear and determine the matter in the exercise of the same jurisdiction as the probate court would itself have exercised if the judge had not been disqualified by the filing of the affidavit.

When the case reached the circuit court the defendant executor appeared, and treating the claim as a creditor's demand against the estate, filed his motion to dismiss the same upon the ground, among others, that there had been no exhibition of the demand for allowance as required by Section 187, R.S.Mo.1929, Mo.St.Ann. § 187, p. 117. A timely and proper exhibition for allowance is of course jurisdictional in the case of a creditor's demand against an estate in process of administration (Schaefer v. Magel's Estate, Mo.App., 108 S.W.2d 608), and if the claim in question had been a mere demand against the estate as the defendant executor insisted that it was, there is no doubt that for want of an exhibition for allowance the court would have been without jurisdiction to have allowed it.

In due course the motion to dismiss was taken up by the court, and, "after being seen and examined", was sustained, and the clerk ordered to certify the action of the circuit court back to the probate court as required by Section 2053 to the end that the disposition of the matter might be made to appear in the records of the probate court in which the administration of the estate was then in progress.

There is a great deal said in the briefs about whether the action of the circuit court in sustaining the motion to dismiss was final and conclusive upon plaintiff's right to further prosecute the proceeding she had instituted to have the personal property in question set over to her absolutely out of her husband's estate. Defendant executor argues that it was final and res adjudicata, while plaintiff insists with equal earnestness to the contrary. Whatever the legal effect of the court's disposition of the motion may actually have been, it would at least appear that the court itself did not regard its decision as a finality, since after plaintiff's subsequent motion to set aside the order of dismissal was overruled, it denied her application to be allowed an appeal therefrom.

At this stage of the case plaintiff seems to have abandoned the proceeding which had been certified to the circuit court, and on May 5, 1934, instituted the suit now before us by filing in the circuit court of Knox County her purported bill in equity in which she named the executor of her deceased husband's estate as the party defendant.

In such petition she set up the facts relating to the death of the deceased without any child or other descendants in being capable of inheriting; her renunciation of the will and election to take under Section 325; the filing in the probate court of her claim for the amount of her inheritance which her husband had reduced to his possession with what was alleged to have been her written assent; and the refusal of the probate court, at the alleged instance of the defendant executor, to take cognizance of her claim upon the theory that the same was a demand against the estate and had not been exhibited to the executor for allowance within the...