In re Clute's Estate
| Citation | 161 S.W.2d 705,236 Mo.App. 1030 |
| Parties | IN RE: ESTATE OF G. V. CLUTE, DECEASED, GEORGE N. CLUTE, ADMINISTRATOR, RESPONDENT, v. WALTER F. CLUTE, APPELLANT |
| Decision Date | 06 April 1942 |
| Court | Kansas Court of Appeals |
Appeal from Clinton Circuit Court.--Hon. R. B. Bridgeman, Judge.
AFFIRMED.
Judgment affirmed.
R. H Musser for appellant.
(1) The probate court is not by law vested with jurisdiction to order the sale of the fee of a homestead subject to the rights of the widow, or to affect the rights of the homesteader's heirs or devisees. (a) Dennis v. Gorman, 289 Mo. 1 233 S.W. 50; Balance v. Gordon, 247 Mo. 124, 152 S.W. 358; Broyles v. Cox, 153 Mo. 242, 54 S.W. 488; Powell's Estate, 157 Mo. 156, 57 S.W. 717; Armour v Lewis, 252 Mo. 574, 161 S.W. 251; Ehlers v. Potter, 219 S.W. 916; Boward's Estate, 231 S.W. 600. (b) Sec. 618, R. S. Mo. 1939; Daniels v. Peck, 288 S.W. 84; Dalton v. Simpson, 270 Mo. 287, 193 S.W. 546; Rombauer Estate, 256 S.W. 1066; McMichael v. Reese, 194 Mo.App. 363, 190 S.W. 51; (c) Regan v. Ensley, 222 S.W. 773; Sec. 612, R. S. Mo. 1939; Maupin v. Longacre, 288 S.W. 54, 58; Bank of Hartsburg v. Sapp, 73 S.W.2d 294; Nettleton Bank v. McGaughey's Est., 2 S.W.2d 771; Same Case, 11 S.W.2d 1093; Kelley v. Parnman, 282 S.W. 755; Johnson v. Adams, 7 S.W.2d 1010. (d) Sec. 612, R. S. Mo. 1939; Moore v. Mansfield, 286 S.W. 353, 355; Jordan v. Rudliff, 264 Mo. 129, 174 S.W. 806; Smith v. Phillips, 289 Mo. 597, 233 S.W. 413; Hall v. Hall, 145 S.W.2d 752; Kaye v. Politte, 129 S.W. 864. (2) The court was without jurisdiction to direct the sale of the fee or entire homestead, there being no excess value shown to exist therein. (a) Sec. 106, R. S. Mo. 1939. (b) Walter v. Goodsill, 54 Mo.App. 634; Hall v. Morgan, 79 Mo. 52; Bredell v. Real Estate Co., 95 Mo.App. 676, 69 S.W. 635; 7 Words and Phrases (1 Ed.), sec. 6712; 4 Words and Phrases (2 Ser.), 733; Hannibal Trust Co. v. Elgea, 286 S.W. (5) 376; Gratz v. Scenic Ry. Co., 165 Mo. 219. (3) In overruling the appellant's motion for new trial, authorities hereinbefore cited. (4) The probate court nor the circuit court, are by law, vested with jurisdiction to order the sale of the fee of a homestead, subject to the rights of the widow, or to affect the rights of the homesteader's heirs or devisees. Dennis v. Gorman, 233 S.W. 50, 289 Mo. 1; Armour v. Lewis, 252 Mo. 582, 161 S.W. 254; Balance v. Gordon, 247 Mo. 124, 152 S.W. 358; Broyles v. Cox, 153 Mo. 242, 54 S.W. 488; Powell's Estate, 157 Mo. 156, 57 S.W. 717; Armour v. Lewis, 252 Mo. 574, 161 S.W. 251; Ehlers v. Potter, 219 S.W. 916; Boward's Estate, 231 S.W. 600. (b) Under Sec. 618, R. S. Mo. 1939, a homestead can only be sold by an order of the circuit court, being the only provisions of the law authorizing such a sale. Daniels v. Peck, 288 S.W. 84; Dalton v. Simpson, 270 Mo. 287, 193 S.W. 546; Rombauer Estate, 256 S.W. 1066; McMichael v. Reese, 194 Mo.App. 363, 190 S.W. 51; Regan v. Ensley, 222 S.W. 773; Maupin v. Longacre, 288 S.W. 54, 58; Bank of Hartsburg v. Sapp, 73 S.W.2d 294; Nettleton Bank v. McGaughey's Est., 2 S.W.2d 771; Same Case, 11 S.W.2d 1093; Kelley v. Parnman, 282 S.W. 755; Johnson v. Adams, 7 S.W.2d 1010. Sec. 612, R. S. Mo. 1939, the widow surviving the head of the family acquires a homestead during her natural life or widowhood, and, after her remarriage or death, this homestead passes to the heirs of the husband. Moore v. Mansfield, 286 S.W. 353, 355; Jordan v. Rudliff, 264 Mo. 1929, 174 S.W. 806; Smith v. Phillips, 289 Mo. 597, 233 S.W. 413; Hall v. Hall, 145 S.W.2d 752; Kaye v. Politte, 129 S.W. 864. The words, "subject to," mean that a deed with such words of qualification is affected by encumbrances. Hall v. Morgan, 79 Mo. 52; Bredell v. Real Estate Company, 69 S.W. 635, 95 Mo.App. 676; 7 Words and Phrases (1 Ed.), sec. 6712; 4 Words and Phrases (2 Ser.), sec. 733; Hannibal Trust Co. v. Elgea, 286 S.W. (5) 376; Gratz v. Scenic Ry. Co., 165 Mo. 219; Walker v. Goodsill, 54 Mo.App. 634.
Frank W. Armstrong for respondent.
(1) The administration law provides that the probate court can order a sale of the homestead tract subject to the widow's homestead rights to get funds to pay widow's allowance for support. Nettleton Bank v. McGaughey's Estate, 2 S.W.2d 771, 772; Sec. 106, R. S. 1919, as amended by Laws of 1921, p. 111. Sale for widow's allowance for support is probably good, subject to homestead rights. 11 S.W.2d 1093; Gill on Missouri Titles (3 Ed.), sec. 1083, p. 510, sec. 1161, p. 536; R. S. 1929, sec. 107; Acts 1921, sec. 111, 2 S.W.2d 771, 11 S.W.2d 1093. (2) The husband cannot, by will, deprive his surviving widow of the money allowed for her year's support. Sec. 106, R. S. 1939, as amended 1933, p. 164; Monahan v. Monahan's Estate, 89 S.W.2d 155, par. 1, and cases cited; Briscoe v. Merchants and Miners Bank, 102 S.W.2d 751, 754. An antenuptial contract does not bar the widow's bounties, unless the contract specifically covers the items in the bounty statutes. Cavener v. Cavener's Estate, 95 S.W.2d 341; Williams v. Schneider et al., 1 S.W.2d 230; Coulter v. Lyda, 102 Mo.App. 401; Lowe v. Lowe, 163 Mo.App. 209; Flynn v. Kinealy et al., 228 Mo.App. 1197, 67 S.W.2d 771. "The widow's rights are first even to the costs of administration." In re Estate Ulrici, 177 Mo.App. 592. (3) Since the amendment of the homestead law in 1907 homestead property can be sold, even to pay debts, where the heirs of the husband "be persons other than his children." Libby v. Boward, 288 Mo. 148, 155; Dennis v. Gorman, 289 Mo. 1; Kay v. Politte, 129 S.W.2d 865, p. 3; Laws 1907, p. 301. (4) Between 1875 and 1895, the homestead property could be sold subject to homestead rights to pay debts of the estate. Acts, 1875, pp. 60-1; Keene v. Wyatt, 160 Mo. 1; Robbins v. Boulware, 190 Mo. 33, 41; Libby v. Boward, 288 Mo. 148, 154; Wilson v. Wilson, 255 Mo. 535; Balance v. Gordon, 247 Mo. 128; Libby v. Boward, 288 Mo. 154, supra.
This is an appeal from a judgment ordering sale of 13 1/3 acres of land owned by the estate of G. V. Clute, deceased, said real estate being the sole assets of said estate and being the homestead of deceased and of Viola Clute, his widow.
G. V. Clute, deceased, died testate November 22, 1939, seized and possessed of the land in question. He left surviving, Viola Clute, his widow, and seven children, all of whom were past twenty-one years of age. His sole property consisted of personalty inventoried and sold for the sum of $ 19.96, and the land described in the judgment herein appealed from. The land is appraised and inventoried at the value of $ 416. Deceased left a will wherein his son, Walter F. Clute, was named as sole beneficiary, and deceased's widow and his remaining children were mentioned but received nothing under the terms of said will. The will was duly probated and a son of deceased, George N. Clute, was legally appointed, and thereafter duly qualified, as administrator.
Thereafter, the widow filed her petition in probate court alleging that she was deceased's widow and praying that allowance be made for her support for a year. The probate court, in due time, made and entered of record its order finding that the widow was entitled to an allowance for a year's support, and granted and ordered paid to her, out of the assets of said estate for that purpose, the sum of $ 600.
Thereafter, the administrator filed a partial settlement, which was duly approved by the court, wherein it was shown that the personal property had been sold and the proceeds entirely exhausted in paying administrative costs; called attention to the order of court concerning payment of the $ 600 cash allowance to the widow; recited that there were no assets from which said cash allowance could be realized excepting from the sale of the real estate; and suggested that the court, of its own motion, make and enter its order of sale of said real estate, subject to homestead rights, for the purpose of paying said widow's allowance.
Walter F. Clute filed an intervening plea and set up the fact that said real estate was the homestead of deceased during his lifetime and thereafter became, and then was, the homestead of the widow, Viola Clute. He alleged that he was the sole beneficiary under the will of deceased and he denied the power and jurisdiction of the probate court to order said homestead sold for the purpose of paying the cash allowance to the widow.
The probate court made and entered an order of sale, ordering said real estate sold for the above mentioned purpose, said sale, however, to be made subject to homestead rights. From this order Walter F. Clute, whom we shall refer to as appellant, appealed to the circuit court where, after trial duly had, that court found that the real estate here involved constituted a homestead and ordered same sold, subject to homestead rights, for the purpose of procuring funds with which to pay the widow's allowance of $ 600 aforementioned. From this judgment appellant appeals to this court.
It is conceded by both administrator and appellant that the real estate involved is a homestead and that its entire value is about $ 416. The sole question involved is whether or not the court has the power to order sale of real estate comprising a homestead, subject to the homestead rights, for the purpose of paying the statutory allowance duly made for maintenance of the widow, when the real estate involved is of a value not greater than $ 1500.
The rights of the widow, minor children, and creditors in the homestead is determined by the law in force at the time of the death of the homesteader. [Kay v. Politte, 129 S.W.2d 863, 864.] The rights of homesteaders, or of those entitled to homestead rights, have always been carefully guarded by...
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