In re Boward's Estate

• Decision Date: 26 May 1921
• Docket Number: No. 22097.,22097.
• Citation: 288 Mo. 148,231 S.W. 600
• Parties: In re BOWARD'S ESTATE. LIBBY v. BOWARD.
• Court: Missouri Supreme Court

231 S.W. 600

288 Mo. 148

In re BOWARD'S ESTATE LIBBY v. BOWARD.

No. 22097.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Appeal from Circuit Court, Linn. County; Fred Lamb, Judge.

In the matter of the estate of C. T. Boward, deceased, wherein O. F. Libby, as administrator, petitioned for order of sale of certain homestead property to pay a claim, H. W. Boward contesting. From an order of sale, contestant appealed to the circuit court, which sustained the order, and contestant appeals. Reversed without remand.

Both counsel for appellant and respondent have filed clear and intelligent statements in this court, and there appears to be no disagreement between them as to the facts. We accordingly adopt respondent's statement, which reads as follows:

"Charles F. Boward died intestate in Linn county, Mo., on August 8, 1900, leaving surviving him Sophrona E. Boward, his widow, and one minor son, H. W. Boward, the appellant herein, and seized and possessed of a house and lot in the city of Brookfield, in said Linn county, which premises then as well as now were of about the value of $1,000. The title to said premises was acquired, and the deed thereto recorded some time prior to the death of said Boward. From the time said premises were acquired and up to the time of the death of said Boward, he, with his wife and minor son, occupied the same as a homestead, and after his death the same passed to and was occupied as a homestead by the widow and minor son until the son attained his legal majority, and thereafter by the widow until her death, which occurred in August, 1918. After the homestead was acquired and the deed thereto recorded, the said Charles F. Boward became indebted to one Con Yagel, which indebtedness was still outstanding and unpaid at the time of the death of said Boward in the year 1900.

"After the death of said Boward, the respondent herein, O. F Libby, was by the probate court of Linn county, Mo., appointed administrator of the estate of the deceased, duly qualified, and since which time has been, and is now, so acting. The administrator upon assuming the duties of his office ascertained that the deceased left no personal estate except his household goods and furniture, which were claimed by the widow and were turned over to her as her absolute property. It was also ascertained by the administrator that the said Boward owned no real estate at the time of his death except the house and lot which was then his homestead.

"The debt due from the deceased to the said Con Yagel, was duly presented to and allowed by the probate court as a demand against the estate of said deceased and assigned to the fifth class of demands. There were no other debts or demands allowed against said estate. The administrator believed that under the homestead law then in force (Session Laws of 1895, p. 185; section 3620, R. S. Mo. 1899) the sale of said property to pay said allowed demand would have to be postponed until the termination of the homestead therein by the minor reaching his majority and the death of the widow.

"The widow died at Linn county, Mo., in August, 1918, and the son, who is the appellant herein, having become 21 years of age some years prior to the death of his mother, the homestead interest in said premises was thereby terminated, and soon thereafter the administrator filed his petition in the probate court for an order of sale of said real estate for the purpose of paying the demand of Yagel. The Petition for the sale was duly sustained, and the sale ordered by the probate court. From this order the said H. W. Boward appealed to the circuit court of Linn county, Mo., and upon a hearing of the matter in that court the order of sale made by the probate court was in all things sustained, and the appellant brings the case to this court by appeal. It is conceded by the appellant that the proceedings in the probate court for the sale were in all respects regular and are not called in question."

Letters of administration were granted to Mr. Libby by the probate court of Linn county, Mo., on September 13, 1905.

The demand of Con Yagel was allowed in the probate court on December 13, 1905, for $428.50.

A petition for the sale of the property in controversy was filed in the probate court of Linn county, Mo., at the November adjourned term, 1918. The order of sale was made by the probate court on February 24, 1919.

Appellant alleges in his statement that no question arises as to the regularity of the proceedings, and all the facts are admitted in the record, so that there is presented on this appeal but two questions: First. Was the claim so stale as to preclude the order of sale? Second. Did the property which was the homestead of Charles F. Boward in his lifetime upon the death of his widow become subject to the payment of his debts or immediately pass to his son, Henry F. Boward?

Judgment was entered in behalf of respondent on June 25, 1919. Defendant in due time filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.

Bailey & Hart, of Brookfield, for appellant.

C. C. Bigger and O. F. Libby, both of Laclede, for respondent.

RAILEY, C. (after stating the facts as above).

I. It is conceded that Charles F. Boward, the owner of the land in controversy, died on August 8, 1900; that at the time the Con Yagel debt in question was contracted, as well as prior thereto, said Charles F. Boward, with his wife and this defendant, who was then a minor, held and occupied the land aforesaid, worth about $1,000, as their homestead; that the Yagel debt was not secured by a lien of any kind on said land.

It is contended by both parties to this litigation that the rights of all the parties in interest must be determined by the law which was in force on August 8, 1000, when Charles F. Boward died. This contention is sound and supported by our former rulings, some of which are as follows: Brown v. Brown's Adm'r, 88 Mo. loc. cit. 390; Register v. Hensley, 70 Mo. loc. cit. 194; Davidson v. Davis, 86 Mo. 440; Burgess 17. Bowles, 99 Mo. 543, 12 S. W. 341, 13 S. W. 99; Quinn v. Kinyon, 100 Mo. loc. cit. 553, 13 S. W. 873; Linville et al. v. Hartley, 130 Mo. 252, 32 S. W. 652; Keene v. Wyatt, 160 Mo. loc. cit. 9, 60 S. W. 1037, 63 S. W. 116; Brewington v. Brewington, 211 Mo. 48, 109 S. W. 723; Bushnell v. Loomis, 234 Mo. loc. cit. 384, 385, 137 S. W. 257, 36 L. R. A. (N. S.) 1029; Balance v. Gordon, 247 Mo. loc. cit. 131, 152 S. W. 358; Wright v. Hetherlin, 277 Mo. loc. cit. 112, 209 S. W. 871; Regan v. Ensley, 222 S. W. loc. cit. 774.

In Balance v. Gordon, 247 Mo. loc. cit. 131, 152 S. W. 361, Judge Lamm, in clear and explicit language, declared the law of this state in respect to above matter as follows

"Under the doctrine of the Bushnell-Loomis Case, we hold that the rights of creditors, as well as those of the widow and minor children, must be measured by the law in existence at the death of the householder."

Pursuing this subject further, we will endeavor to point out in the succeeding proposition the law as it existed in this state on August 8, 1900, when Charles F. Boward died.

2. In 1895 the General...