In re Fritch's Estate

• Decision Date: 31 December 1913
• Citation: 164 S.W. 659,179 Mo. App. 434
• Parties: In re FRITCH'S ESTATE. FRITCH v. FRITCH.
• Court: Missouri Court of Appeals

164 S.W. 659

179 Mo. App. 434

In re FRITCH'S ESTATE.

FRITCH v. FRITCH.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

Rehearing Denied January 20, 1914.

1. EXECUTORS AND ADMINISTRATORS (§ 194)— ALLOWANCE TO WIDOW IN LIEU OF PROVISIONS.

Under Rev. St. 1909, §§ 114, 115, allowing a widow an award of money in lieu of a year's provisions, an award may be made ex parte, and, in case the widow is administering the estate, without the appointment of administrator ad litem, or without notice to creditors, as the year's provisions is the widow's absolute property, and the award is also her absolute property, and in no sense a demand against the estate, as shown by Rev. St. 1909, § 289, allowing an appeal from allowances to the widow separate from appeals from demands against the estate.

2. EXECUTORS AND ADMINISTRATORS (§ 194)— ALLOWANCE TO WIDOW—AMENDMENT OF ORDER AFTER TERM.

The action of the probate court in allowing a widow a sum of money in lieu of a year's provisions, authorized by Rev. St. 1909, § 115, is a final judgment, as shown by Rev. St. 1909, § 289, allowing an appeal therefrom and under section 290, providing that an appeal must be taken within 10 days after the term, and such judgment cannot be modified by the probate court at a subsequent term; no appeal having been taken.

3. EXECUTORS AND ADMINISTRATORS (§ 194)— ALLOWANCE TO WIDOW IN LIEU OF PROVISIONS —VACATION OF ORDER.

Rev. St. 1909, § 220, authorizing probate courts to vacate an order allowing a demand against an estate within 4 months after the allowance thereof, is inapplicable to the allowance of a sum of money in lieu of a year's support, as provided for in Rev. St. 1909, § 115.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

In the matter of the estate of George W. Fritch, deceased. From an order authorizing an allowance to Elizabeth Fritch, administratrix, Letitia L. Fritch, intervening creditor, appeals. Affirmed.

Rassieur, Kammerer & Rassieur, of St. Louis, for appellant. Karl M. Vetsburg and Chas. H. Franck, both of St. Louis, for respondent.

ALLEN, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis reversing and setting aside a certain order of the probate court of said city.

The respondent, Elizabeth Fritch, is the widow of George W. Fritch, deceased, and is the administratrix of the estate of her deceased husband. On January 9, 1911, at the December term, 1910, of said probate court, and while the estate was in process of administration therein, respondent, as the said widow of the deceased, made application to the court for an allowance to her in lieu of provisions out of the funds on hand in said estate, under the provisions of sections 114 and 115 of the Revised Statutes of 1909. Acting upon said application, the probate court did, on the same day, enter an order appropriating to respondent the sum of $600 in lieu of the grain, meat, vegetables, groceries, and other provisions mentioned in section 114, supra, necessary for the subsistence of the widow for 12 months, and which were not on hand at the time of taking the inventory. Thereafter, to wit, on June 16, 1911, and at the June term, 1911, of said probate court, the appellant, Letitia L. Fritch, a creditor of said estate, filed a motion in the probate court praying for an order reducing the said allowance to respondent from $600 to $200, upon the ground that the allowance made was excessive, that the estate was insolvent, and that respondent, as widow, had received her "absolute dower" of $400, and her dower in the real estate, and should be satisfied with the amount of $200, as an allowance in lieu of provisions. Thereafter, on July 10, 1911, and at the same June term of said probate court, the latter made and entered an order reducing said allowance to respondent from $600 to the sum of $300. Thereupon the respondent appealed therefrom to the circuit court, and, upon a trial there de novo, the latter court, by its judgment, vacated and set aside said order of the probate court of July 10, 1911, from which judgment, Letitia L. Fritch, the intervening creditor, prosecutes this appeal.

The only question involved is whether the probate court had jurisdiction at a subsequent term to reduce the allowance originally made to the respondent, as the widow of the deceased.

Appellant contends that the original order, made at the December term, 1910, of the probate court, was void, or at least voidable, for the reason that it was made ex parte, without either the appointment of an administrator ad litem, or notice to creditors or others interested in the estate, and that in any event it was not a final judgment, but was subject to review and correction at any time during the course of administration, prior to the final settlement of the estate.

It will be well, in the first place, to notice the statutory provisions concerning such an allowance to a widow, and the rule of decision prevailing with respect to the construction of these sections.

Section 114, Revised Statutes 1909, provides as follows: "In addition to dower, the widow shall be allowed to keep as her absolute property a family Bible and other books, not to exceed two hundred dollars; all the wearing apparel of the family, her wheels, looms and other implements of industry; all yarns, cloth and clothing made up in the family for their own use; all grain, meat, vegetables, groceries and other provisions on hand provided and necessary for the subsistence of the widow and her family for twelve months; her household, kitchen and table furniture, including beds, bedsteads and bedding, not to exceed the value of five hundred dollars."

The next succeeding section, viz., section 115, is as follows: "If the grain, meat or other provisions allowed the widow in the preceding section shall not be on hand at the time of taking the inventory, the court shall make a reasonable appropriation out of the assets of the estate to supply such deficiency."

These sections have been frequently construed by our courts with regard to the right of the widow in respect to the property mentioned in section 114, and the allowance to her provided by section 115. In Campbell v. Whitsett, 66 Mo. App. 444, decided by the Kansas City Court of Appeals, in treating of the nature of the allowance provided to the widow in lieu of provisions, the court said: "The year's provision allowed her is her absolute property. So, if it be not on hand, the money in lieu thereof would be hers as her absolute property, and not depending upon her place of residence after her husband's death. We deem this to be the logical result of the cases of Cummings v. Cummings, 51 Mo. 261, and Hastings v. Myers, 21 Mo. 519. * * * A judgment for the widow under this statute should be no more than a judgment establishing the claim, or an order appropriating assets, ascertained to be unappropriated, to the payment of the claim, and ordering it paid." In Waters v. Herboth, 178 Mo. 166, 172, 77 S. W. 305, 306, in treating of what are now sections 114 and 115, supra, and section 116, which allows to the widow additional personal property not exceeding $400 in value as her absolute property, the Supreme Court said: "Those sections were not designed to affect the final distribution; but the idea was to allow the widow to have those articles in the beginning. They were to be separated from the estate that was to be administered, to form no part of it, neither for the creditors nor the distributees; they were to be given to the widow in the first place, and it was only what was left after those articles were given to the widow that was to be treated as the estate to be administered. This is further shown by section 2, in the same chapter, which is to the effect that, if there is no more in the estate than those articles and that amount of money, there shall be no administration."

We are not, of course, directly concerned with the absolute property of the widow, of the value of $400, allowed her under section 116, supra; but it is quite clear that the property mentioned in section 114 is the absolute property of the widow, as well as that mentioned in section 116, and, from the language employed by the Supreme Court in the opinion just referred to, it is equally clear that the allowance in lieu of the provisions mentioned in section 115 is to take the place of the latter, and is likewise regarded as her absolute property. If the grain, meat, vegetables, groceries, and other provisions be on hand for the subsistence of the widow and her family for 12...