Hill v. Evans

• Decision Date: 04 December 1905
• Parties: HILL et al. v. EVANS.
• Court: Missouri Court of Appeals

91 S.W. 1022

114 Mo. App. 715

HILL et al. v. EVANS.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

1. EXECUTORS AND ADMINISTRATORS—ALLOWANCE TO SURVIVING WIFE—ELECTION.

Under Rev. St. 1899, § 2944, providing that, when the husband shall die leaving a child or children or other descendants, the widow, if she has a child or children by such husband living, may, in lieu of dower of the one-third part of the lands for life, elect to be endowed absolutely in a share of such lands equal to the share of a child of such deceased husband, the "share of the child" referred to means its share in the real estate, not its interest in the personalty, and the widow's exercise of her election to take a child's portion does not affect her right to the bounty provided by section 107, when it is applied for in the time prescribed by section 108.

2. SAME—LIABILITIES OF ESTATE — ATTORNEY'S FEES.

The services of an attorney for an administratrix, consisting of giving her advice, drawing leases and other legal instruments, ejecting nonpaying tenants, collecting doubtful demands due the estate, discovering assets, and investigating and adjusting disputed claims, are such as the estate is liable for, under Rev. St. 1899, § 223, providing for allowances for legal advice and services.

3. SAME—ALLOWANCE—EXCESSIVENESS.

Decedent left an estate consisting of about $7,000 in personalty and three large farms, besides several pieces of city property. He owed debts aggregating $9,000, and numerous debts of various degrees of collectibility were owing to him. The real estate was located in several different counties. His widow, who was appointed administratrix, had not been apprised of his business matters and had scant knowledge of his affairs. She employed an attorney, who for a period of about three years rendered services, consisting of giving advice to the administratrix, drawing leases and other legal instruments, ejecting nonpaying tenants, collecting doubtful demands due the estate, discovering assets, and investigating and adjusting disputed claims. Held, that an allowance of a fee of $400 paid to the attorney was not excessive.

4. SAME—LOSS OF ASSETS—LIABILITY OF ADMINISTRATRIX.

On exceptions to the report of an administratrix, evidence examined, and held sufficient to sustain a finding that the administratrix acted with due care and for the benefit of the estate in the employment of a certain person to act as agent in handling some of the property so that she was not chargeable with a loss sustained by the estate as the result of the agent's unauthorized and wrongful act.

5. SAME.

An administratrix stands in the position of a trustee to those interested in the estate, and is liable only for the want of due care and skill; and the measure of due care and skill is that which prudent persons exercise in the direction and management of their own affairs.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Exceptions by Martha A. Hill and others to report of Mahala Evans, administratrix of the estate of William Evans, deceased. Exceptions overruled, and exceptants appeal. Affirmed.

Frank Sheetz & Sons, for appellants. Lewis A. Chapman, for respondent.

JOHNSON, J.

William Evans died intestate in Livingston county in 1898, leaving his widow, the defendant, and their two married daughters, the plaintiff Martha A. Hill, and Mary J. Wilhite. He left personal property of the value of about $7,000, and a number of tracts of real estate. Shortly after his death, defendant was appointed administratrix of his estate by the probate court of Livingston county. In the discharge of her duties the administratrix made one annual settlement, and thereafter, in proper time, filed her final settlement. To this plaintiff filed certain exceptions, which were heard and determined by the circuit court upon appeal. Some of them were sustained, and with these we have no concern; but others were overruled, and we are besought by plaintiffs to reverse the judgment of the trial court upon them.

The first exception for our consideration relates to the allowance of $400 claimed by the widow under section 107, Rev. St. 1899. The personal estate was insufficient by several thousand dollars to pay the allowed debts of decedent. The widow in proper time made her election, under Rev. St. 1899, § 2944, to take in lieu of dower a child's part in the lands, whereof her husband died seised. It is claimed that in doing this she became a distributee of the personal, as well as the real, estate, and, as such, renounced the benefit conferred upon her under section 107. There is no merit in this contention. Section 2944 provides: "When the husband shall die leaving a child or children, or other descendants, the widow, if she has a child or children by such husband living, may, in lieu of dower of the one-third part of all lands whereof her husband died or shall die seized of an estate of inheritance, to hold and enjoy during her natural life, elect to be endowed absolutely in a share of such lands equal to the share of a child of such deceased husband. The provisions of this section shall be subject to the payment of her husband's debts." The "share of a child" referred to means its share in the real estate alone, not its interest in the personalty. The bounty provided by section 107 belongs absolutely to the widow (provided she applies for it in the time prescribed in section 108), regardless of the debts of her husband, and is unaffected by the exercise of her election to take a child's portion of the real estate. Glenn v. Gunn, 88 Mo. App. 423. What we have said is not at variance with the cases of Griffith v. Canning, 54 Mo. 284, and Newton v. Newton, 162 Mo. 186, 61 S. W. 881, relied upon by plaintiffs. They deal with an...