In re Flynn's Estate

• Decision Date: 07 July 1936
• Citation: 95 S.W.2d 1208,232 Mo.App. 297
• Parties: IN THE MATTER OF THE ESTATE OF SARAH W. FLYNN, DECEASED, LAWRENCE C. FLYNN, PETITIONER, RESPONDENT, v. WILLIAM B. KINEALY, TRUSTEE, AND WINIFRED BRYAN, RESIDUARY LEGATEE, APPELLANTS
• Court: Missouri Court of Appeals

95 S.W.2d 1208

232 Mo.App. 297

IN THE MATTER OF THE ESTATE OF SARAH W. FLYNN, DECEASED, LAWRENCE C. FLYNN, PETITIONER, RESPONDENT, v. WILLIAM B. KINEALY, TRUSTEE, AND WINIFRED BRYAN, RESIDUARY LEGATEE, APPELLANTS

Court of Appeals of Missouri, St. Louis

July 7, 1936

Motion for Rehearing Overruled Juy 20, 1936.

Writ of Certiorari quashed by Supreme Court, March 24, 1937.

Appeal from the Circuit Court of City of St. Louis.--Hon. H. A Hamilton, Judge.

AFFIRMED AND REMANDED.

Judgment affirmed and cause remanded.

Geers & Geers for respondent.

(1) Estoppel. To constitute an estoppel, it must appear that the party acted with full knowledge of all the material facts and circumstances, and with knowledge of his legal rights, and that the position of the party invoking the doctrine would be changed if the matter was opened up. Garesche v Levering, 146 Mo. 436, l. c. 451. Widower held not estopped from renouncing will by accepting income of testamentary trust estate, nor by statement to executor that he would not renounce the will, where widower's conduct did not prejudice anyone. Parties interested in testatrix's estate held charged with constructive knowledge of widower's right to renounce the will during period of one year. In re Flynn's Estate, 67 S.W.2d 771; In re Goessling's Estate, 287 Mo 663. (2) Acceptance. No acceptance of the will is required by our statute. Our law says the widower shall be presumed to acquiesce in his wife's will unless within twelve months after its probate he chooses to renounce; his acceptance, however often repeated, amounts to nothing, unless by such acceptance the position of the parties has materially changed. Spratt v. Lawson, 176 Mo. 175; Bretz v. Matney, 60 Mo. 444; Garesche v. Levering, 146 Mo. 436; Loud v. St. L. U. T. Co., 298 Mo. 148; Register v. Hensley, 70 Mo. 195; Goessling's Estate, 287 Mo. 663; Flynn's Estate, 67 S.W.2d 771; Bank v. Cook, 74 S.W.2d 846. (3) Monies received. "The doctrine of election can have no application or relevancy where, as in this case, the property received is less than the widower is entitled to under the statute without reference to any will." Bugess v. Bowles, 99 Mo. 548; Ball v. Ball, 165 Mo. 327. (4) Statutes. Section 324, Revised Statutes of Missouri, 1929, provides as follows: "When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death absolutely, subject to the payment of the wife's debts." Section 329, Revised Statutes of Missouri, 1929, provides as follows: "Whenever the widow is entitled to an election under the provisions of this article, such election shall be made by declaration, in writing, acknowledged before some officer authorized to take the acknowledgment of deeds, and filed in the office of the clerk of the court in which letters testamentary or of administration shall have been granted within twelve months after the first publication of the notice of granting of the same; and such declaration shall also be filed in the recorder's office of the county in which the letters testamentary or of administration were granted within twelve months after the first publication of the notice of the granting of the same, otherwise she will be endowed under the provisions of the preceding sections of this article, . . ." Time allowed. Our statute gives the widow twelve months within which she can reject her husband's will and requires no formal election between the will and the law; she is entitled to the twelve months allowed her by the statute, although she may formerly have accepted the will every day in the year previous to the last. Bretz v. Matney, 60 Mo. 444; Collier v. Porter, 16 S.W.2d 49, l. c. 55. (5) Remanding. "If the instant case is for review the same as if here after final judgment, as we so hold, clearly under the statute (section 1063, Revised Statutes of Missouri, 1929) and the usual appellate procedure, we should, to lessen expense and end litigation, remand the cause and direct the trial court as to the disposition of the case. Cole v. Frisco Ry., 332 Mo. 999. As the statute allowing appeal from an order granting a motion for a new trial before final judgment made no change in the ordinary appellate procedure, in an equity case which the appellate court tried de novo the appellate court may either enter such judgment as may be dictated by the facts, or indicate to the court nisi what judgment should be entered and direct such court to enter it, and thus terminate the litigation. Scott v. Cowen, 274 Mo. 398.

William B. Kinealy and C. L. de Renthel for appellants.

(1) The motion for a new trial could not have been sustained on the first ground alleged in respondent's motion for a rehearing, towit, that the finding and judgment was against the evidence and against the weight of the evidence. (2) Respondent was estopped by his actions from renouncing the will of Sarah W. Flynn, deceased. Moseley v. Bogy, 272 Mo. 319, l. c. 329; Wood v. Trust Co., 265 Mo. 511, l. c. 525; Zook v. Welty, 156 Mo.App. 703, l. c. 714; Stone v. Cook, 179 Mo. 534, l. c. 541; In re Goessling's Estate, 230 S.W. 613, l. c. 615. (3) The two instructions of law given by the court at the request of the appellants were each a correct declaration of law applicable to this cause. See authorities above. (4) The court's finding and verdict was for the right party.

HOSTETTER, P. J. Becker, J., concurs; McCullen, J., not sitting.

OPINION

HOSTETTER, P. J.

--This case originated in the probate court of the city of St. Louis, Missouri, following the filing by Lawrence C. Flynn, widower of Sarah W. Flynn, deceased, of a petition for an order of partial distribution of the amount of $ 500 to him out of the estate of his deceased wife.

Sarah W. Flynn died on June 11, 1931, testate, leaving Lawrence C. Flynn, her husband, surviving and no lineal descendants. Her will was filed for probate in the probate court of the city of St. Louis on June 22, 1931, and letters testamentary were issued to William B. Kinealy, a surviving brother of decedent, as executor, without bond.

On April 4, 1932, being less than one year after the death of Sarah W. Flynn, and prior to any distribution of her estate, Lawrence C. Flynn, her widower, filed his declaration in writing renouncing her will and electing to take under the statute, said renunciation and election having been previously filed for record and recorded in the recorder's office of the city of St. Louis, in consonance with the provisions of section 329, Revised Statutes of Missouri, 1929.

At the December Term, 1932, of the probate court of the city of St. Louis, and more than one year after the beginning of administration on the estate of Sarah W. Flynn, the petition for the partial distribution of $ 500 to the widower, Lawrence C. Flynn, was filed in the probate court, and was heard on December 12, 1932, and judgment entered by said probate court directing William B. Kinealy, as such executor, to make partial distribution of the estate and pay to the widower, Lawrence C. Flynn, the sum of $ 500 as part of his distributive share under the statute.

Thereupon, Winifred Bryan, one of the residuary legatees under the will of Sarah W. Flynn, and William B. Kinealy, trustee, appealed from the decision of the probate court to the circuit court of the city of St. Louis. The cause was heard in said circuit court on June 13, 1933, and was taken under advisement by the trial judge until July 17, 1933, when judgment was rendered denying the petition for a partial distribution. In due time Lawrence C. Flynn filed his motion for a new trial and rehearing, which was sustained by the court on April 6, 1934.

Thereupon Winifred Bryan and William B. Kinealy perfected their appeal to the Supreme Court of Missouri. The record does not disclose upon what theory the appeal was sent to the Supreme Court instead of the St. Louis Court of Appeals, as the amount involved was only $ 500. It appeared in the testimony that the total valuation of the estate was $ 20,000, and that the real estate was inventoried at $ 5,800.

The Supreme Court, by an opinion filed on the 10th day of March, 1936 (92 S.W.2d 671, l. c. 674), held that title to real estate is not even remotely involved, and that "clearly the only amount in dispute which affirmatively appears from the whole record in this cause is $ 500."

Following is a synopsis of the contents of the will, as set out in the Supreme Court opinion, viz.:

" . . Paragraphs one to six, inclusive, of the will direct and make bequests as follows: That her just debts be paid; that $ 150 be paid to 'Father Baker's Home for Children;' that her executor 'pay $ 300 for masses;' a bequest of all her 'household furnishings, clothing and jewelry' and $ 1000 to her niece, Winifred Bryan; a bequest of $ 1000 to her grandniece Winifred Bryan, Jr.; that $ 1000 be set aside, 'loaned at interest,' and the income therefrom be used by the trustee named in the seventh paragraph 'for the care of my pet dog and upon the death of said dog' said sum to become a part of the trust fund created by the seventh paragraph. By the seventh paragraph she devised and bequeathed 'all the rest and residue of my estate, be it real, personal or mixed and wherever situated' to her brother William B. Kinealy (one of the appellants) 'in trust. . . . To hold, control, manage, invest and reinvest all or any part thereof, including the right to sell, mortgage or pledge and borrow money upon same, and pay the costs and expenses of managing the property and performing the trust, and to collect all of the rents, profits and income derived from the property and management of same, and pay over unto...