In re Flynn's Estate

• Citation: 67 S.W.2d 771,228 Mo.App. 1197
• Parties: IN THE MATTER OF THE ESTATE OF SARAH W. FLYNN, DECEASED, LAWRENCE C. FLYNN, RESPONDENT, v. WILLIAM B. KINEALY, EXECUTOR OF THE LAST WILL OF SARAH W. FLYNN, DECEASED, AND WINIFRED BRYAN, A RESIDUARY LEGATEE, APPELLANTS
• Decision Date: 06 February 1934
• Court: Court of Appeal of Missouri (US)

67 S.W.2d 771

228 Mo.App. 1197

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

Court of Appeals of Missouri, St. Louis

February 6, 1934

Motion for rehearing overruled February 21, 1934.

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

Judgment affirmed.

Gerald B. O'Reilly for appellant, William B. Kinealy, Executor.

C. L de Renthel for appellant, Winifred Bryan.

(1) The court erred in holding that the will of Sarah W. Flynn deceased, did not provide for petitioner in exclusion of all statutory allowances. Schwatken v. Daudt, 53 Mo.App. 1; Pemberton v. Pemberton, 29 Mo. 408; Glenn v. Glenn, 88 Mo.App. 423. (2) The court erred in holding that petitioner was not estopped from renouncing the will of Sarah W. Flynn, deceased, and erred in entering the judgment and decree in favor of petitioner Lawrence C. Flynn. Mosley v. Bogy, 272 Mo. 319, l. c. 329; Wood v. Trust Co., 265 Mo. 511, l. c. 525; Zock 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; Gareche v. Levering Inv. Co., 146 Mo. 436. (3) The judgment and decree are excessive. Williams v. Schneider, 1 S.W.2d 230; In re Rash's Estate, 256 S.W. 525; See v. See, 66 Mo.App. 566.

Geers & Geers for respondent.

James Waters, Jr., of counsel.

(1) Widower shall be entitled to allowance from deceased wife's estate for sustenance, notwithstanding no family surviving the widow; his right to the allowance is absolute; it vests immediately on the death of his wife. This bounty is in reality an altogether different thing from dower; it is an improved substitute for dower; it is exempt from the claims of creditors and from testamentary disposition. R. S. 1929, secs. 106, 107; Nidy v. Rice, 44 S.W.2d 196; Bryant v. McCune, 49 Mo. 546; Glenn v. Gunn, 88 Mo.App. 423. (2) A provision in the will of the husband in favor of the wife will never be construed by implication to be in lieu of dower or any other interest given by law; the design to substitute one for the other must be unequivocally expressed. In re Klostermann, 6 Mo.App. 314; Bryant v. McCune, 49 Mo. 546; Mowser v. Mowser, 87 Mo. 437. (3) 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 been materially changed. Reddick v. Walsh, 15 Mo. 537; Spratt v. Lawson (Mo.), 75 S.W. 642; Bertz v. Matney, 60 Mo. 444; Goessling's Estate (Mo.), 230 S.W. 613; Eggers v. Eggers, 225 Mo. 116; Garesche v. Levering, 146 Mo. 436; Loud v. St. L. U. T. Co. (Mo.), 249 S.W. 629; Register v. Hensley, 70 Mo. 195. (4) The amount to be allowed under Sections 106 and 107, Revised Statutes of Missouri, 1929, is within the sound discretion of the court, guided by the circumstances of the case. Williams v. Schneider, 1 S.W.2d 230; Nidy v. Rice, 44 S.W.2d 196.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P.J.

This suit originated in the Probate Court of the City of St. Louis.

The facts are as follows: Sarah W. Flynn died in the City of St. Louis on June 11, 1931. She left the respondent, Lawrence C. Flynn, her husband, surviving, but left no lineal descendants, but did leave collaterals, one of whom was William B. Kinealy, her brother, who was named executor and trustee under her will. Her will was duly probated in the Probate Court of the City of St. Louis, on June 22, 1931, and letters were issued to her surviving brother, William B. Kinealy as Executor without bond.

The inventory disclosed that the estate of Sarah W. Flynn amounted to $ 20,316, of which $ 14,516.78, was personal property, and the remainder was real estate.

The will, after providing for the payment of her debts, made certain special bequests amounting to $ 2350. In the sixth clause of the will she gave to her brother, William B. Kinealy, or, in case of his death or inability to act, to her niece, Winifred Bryan, $ 1000 to be loaned out at interest and the interest used by the trustee for the care of her pet dog "Cutie," and, upon the death of the pet dog the $ 1000 was to become a part of the trust fund created in the following paragraph of the will. Said paragraph being the seventh clause of the will and being as follows:

"I give, devise and bequeath to my brother, William B. Kinealy, if he be alive at the time of my death, but if he be dead or unable to act, then to my niece, Winifred Bryan, all the rest and residue of my estate, be it real, personal or mixed and wherever situated that I may own or be entitled to at the time of my death, in trust, however, for the following uses and purposes, to-wit: 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 my husband, Lawrence C. Flynn, at such time as he wishes, the whole of the net income realized by the trustee during the continuance of this trust. The trustee shall have power to pay over to my said husband, or expend for him, any part of the principal of the trust fund, in case any emergency or necessity therefor should arise, which in the judgment of said trustee shall make such payment or expenditure advisable. The beneficiary of this trust shall not encumber, sell or convey or in any manner anticipate his interest in this trust fund, principal or income, and any such sale, transfer, assignment or incumbrance shall be void and non-enforceable; and if any creditor shall attempt by suit or otherwise to subject the interest of the beneficiary herein to the payment of any debts of such beneficiary, then and thereafter the trustee shall not be obliged to make the payments, as hereinbefore provided, to such beneficiary, but during the rest of the period during which the trust is to continue may at his discretion apply said income, or such part thereof, as he thinks best, for the support or maintenance of the beneficiary. This trust shall continue during the life of my husband, and at his death this trust shall terminate and the trustee shall pay over to my brother, William B. Kinealy, the sum of One Thousand Dollars, and said trustee shall divide the remaining part of said trust fund, both principal and interest then on hand, into eight equal parts, and shall pay over and deliver two of said parts to each of my nieces, Winifred Bryan, Grace Pearson and Virginia Jackson, or their heirs per stirpes, and shall pay over and deliver one of said parts to my niece Sarah Wentworth, and one of said parts to my grandniece, Patricia Kinealy."

In the eighth clause she appointed William B. Kinealy, her executor.

Her widower, Lawrence C. Flynn, on the 4th day of April, 1932, filed his renunciation of the will and his election to take under the law, and on the 21st day of June, 1932, he filed his motions, one for allowance of a reasonable appropriation out of the personal assets of the estate under the provisions of Section 107, Revised Statutes of Missouri, 1929 (1 Mo. Stat. Ann. 69), in lieu of a deficiency in the grain, meat, vegetables, groceries, etc., mentioned in the preceding Section 106, and the other for the allowance of $ 400 under the provisions of Section 108, Revised Statutes of Missouri, 1929 (1 Mo. Stat. Ann. 70).

Upon a hearing in the probate court the sum of $ 900 was allowed in the widower's favor for his year's provision and $ 400 as absolute property under the provisions of said Section 108. From this action of the probate court in allowing said sum of $ 900 as year's provision the executor and Winifred Bryan, one of the residuary legatees under the will, appealed to the circuit court.

Upon a hearing de novo in the circuit court, that court likewise allowed the sum of $ 900 in favor of the widower for his year's provision and $ 400 as absolute property and from this judgment of $ 900 allowance the executor and Winifred Bryan, a residuary legatee, both perfected their appeal to this court.

Appellants make three assignments of error. The first one is that the trial erred in holding that the will did not provide for the widower in exclusion of all statutory allowances. The second one is that the widower was estopped from renouncing the will and the third is that the judgment was excessive.

The testimony of Lawrence C. Flynn, the widower, was substantially as follows: That he lived in Belleview, Iron County, Missouri; that it cost him about $ 900 a year to live in the manner in which he did live; that a part of the time he boarded, at a cost of one dollar a day that that included his meales but not his room, that he paid rent for the house, and paid for his washing and clothes and everything else; that he paid $ 30 a month board; that the personal property and real estate of his deceased wife inventoried around $ 20,316; that he filed a motion in the probate court asking for $ 900 allowance and also for $ 400 allowance; that he had been getting small checks from Mr. Kinealy, which he supposed were from the rent of houses, that is what Mr. Kinealy reported to him; that Mr. Kinealy took a fourth out of the rents that he collected, that is what Mr. Kinealy told him; that he cashed these checks for about nine or ten months and finally sent one check back; that...