In re Means' Estate

• Decision Date: 27 May 1926
• Docket Number: No. 4027.,4027.
• Citation: 284 S.W. 186
• Parties: In re MEANS' ESTATE. MEANS v. MEANS.
• Court: Missouri Court of Appeals

284 S.W. 186

In re MEANS' ESTATE.

MEANS v. MEANS.

No. 4027.

Springfield Court of Appeals. Missouri.

May 27, 1926.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Petition by Carl W. Means to disallow the claim of Dora L. Means, as the widow of Harry J. Means, deceased, against the latter's "estate, of which she was administratrix. From a judgment allowing the claim, petitioner appeals. Affirmed.

Halliburton & Birkhead, of Carthage, for appellant.

W. R. Robertson and A. M. Baird, both of Joplin, for respondent.

BAILEY, J.

This is a suit in which an intervening petitioner, a creditor, seeks to have disallowed the claim of Dora Means for $400 absolute property and an allowance for a year's support, as the widow of Harry J. Means, deceased. The cause was first tried in the probate court of Jasper county, where the widow was adjudged to recover from the estate of Harry J. Means, deceased, the stun of $400 as her statutory allowance and also $400 in lieu of provisions. The cause was tried anew on appeal to the circuit court of Jasper county, with the same result. The intervening petitioner has perfected his ,appeal to this court.

The petition of appellant, among other things, alleges that he has a demand against the estate of Harry J. Means in the sum of $560 for funeral expenses and $18 for a grave marker; that the total value of the estate does not exceed the sum of $750 and is less than the amount of the demands against the estate; that Harry J. Means, during his lifetime, entered into an agreement with Dora Means, his wife, wherein they agreed to a separation and division of property in full settlement of their property rights; and that by reason of said contract the said Dora Means has received all of the property to which she is entitled, and is estopped from claiming any rights in said estate either as widow or heir at law of Harry J. Means.

At the trial in circuit court, the following admission was made in the record":

"It is admitted in this case that Derr L. Means is the widow of Harry J. Means deceased, and that Harry J. Means, deceased, died October 17, 1924, intestate, leaving no children; his wife, Dora L. Means, was appointed administratrix of his estate; that the estate of Harry J. Means, at the time of his death, consisted of a contract for a deed for lot 1 in Villa Heights addition to the city of Joplin which contract provided for monthly payments, and on which had been paid approximately $500; that in addition there was cash of the value of $118.45, and a damaged Ford car, which was appraised at $10 and afterwards sold for $75, which was all of the property of said estate; that the widow, Dora L. Means, filed her application for the statutory allowance of $400 and for provisions for one year, and also filed an election to take one-half of the real and personal property belonging to the estate, subject to the payment of the husband's debts; that Carl W. Means is a brother and heir at law of.Harry J. Means, deceased, and has filed and had allowed in the probate court of Jasper county, a demand of more than $500, $578 against said estate; that the application for the allowance made by the widow and the election as filed in court are reasonable and just, and were made and allowed by the probate court, from which this appeal was taken, that the only issue in this case is whether or not the widow is estopped or has abandoned her dower right by reason of the contract and the facts and circumstances surrounding same."

The intervener then introduced in evidence the separation agreement, which is in words and figures as follows:

"Whereas, it no longer is possible for the undersigned husband and wife to live together amicably, and the undersigned Harry J. Means has this day filed a petition for divorce, and as to property matters the undersigned have agreed upon a division which shall be in lieu of any and all alimony that might by any possibility be allowed by the court upon a trial of said divorce proceedings:

"Now, therefore, this is to witnesseth: Dora L. Means is to take and to have as her own Property all the household goods at the late residence of the undersigned at 716 Range Line, Joplin, Missouri, together with the new Ford touring car recently purchased by Harry J. Means; Dora L. Means is to assign to Harry J Means, or to whomsoever he may direct, all her interest in the contract for the purchase of the place at 716 Range Line.

                "Dated May 19, 1924.         Harry J. Means
                                            "Dora L. Means
                   "I acknowledge receipt of the Ford car which
                is to-day sold back to Harry J. Means, I receiving
                $300.00 in full therefor
                                   "Mrs. Dora L. Means."
                

The attorney for Harry J. Means testified that the agreement above set out was prepared in his office with both Mr. Means and his wife, Dora L. Means present; that they told him they had decided to separate and wanted to make an agreement with reference to their property rights; that at the time the receipt, shown at the end of the instrument, was signed by Dora L. Means, she was paid $300 by Mr. Means. On cross-examination, he testified:

That he thought the payment was made in money. That he was employed by Mr. Means to file divorce proceedings at that time. That "they told me that they had agreed to separate on a property division. It is one of those things that always comes up about an agreed divorce. She didn't agree to the divorce but agreed on a division of the property. They both agreed it was impossible for them to live together any more. I didn't know how to bring the suit. He decided he would bring it because he could pay the costs better than she could; they both came up to see me in that respect. I think the suit was brought before the contract. I don't know whether it was or not. It was about the same time. It was not said there at that time that they had decided to get a divorce or words to that effect. I don't remember the details of the arrangement about the divorce. I know they talked about the divorce but could not even agree. They both wanted to be separated, but could not agree as to which one should bring the suit. Finally he insisted on bringing it or she insisted on him bringing it because he could pay the costs of it. This contract was executed there in a view of a divorce being granted. It seems to me the divorce suit was brought, and they had the sheriff come down there in the office and serve the summons on her. I think it was in my office. I did and did not represent her. It was a kind of a family settlement. I did not represent her in the divorce suit. I filed the petition for him. It was understood and agreed that there would be simply a suit brought, and she was not going to enter an appearance or anything. She might have an attorney if she wanted one."

He further testified:

"That the agreement was not that, if she would give him this property, he could have the divorce, but was merely a settlement of all property rights;" that the divorce matter was to take care of itself.

Over the objection of the intervener in this case, the administratrix was permitted to introduce in evidence the files in the divorce case consisting of the petition of Harry J. Means and the answer and cross-bill of Dora L. Means.

It was admitted that the divorce case was dismissed after the death of Mr. Means; hence no divorce was granted. Mr. Means was killed in an automobile accident a few days prior to the date the divorce case was set for trial, on October 17, 1924.

Mr. W. N. Andrews testified that he was attorney for Dora L. Means in the divorce matter, and, over the objection of the intervener, further testified: That Mr. Means' attorney came to his office after the divorce suit was brought and the cross-bill filed "to settle about the alimony and property rights between the parties." That afterwards another attorney, Mr. Bradley, representing Mr. Means, made a proposition in settlement of the property rights by which Mrs. Means was to receive a house and lot and the household goods, an automobile, and some money. This proposition was not submitted to Mrs. Means on account 'of the untimely death of her husband. This testimony was offered for the purpose of showing that the alleged separation agreement had been abandoned by both parties.

Mr. Bradley testified that he thought Mr. Means authorized him to let Mrs. Means have the house they were buying, $100 or $150, and an automobile.

Dora L. Means, the administratrix, testified, over intervener's objection, that she signed the contract under duress; that in regard to signing the contract her husband told her that, "I will break your neck if you don't go and sign this." She also testified that he stood in front of her with a loaded shotgun, and that she signed the contract because he threatened her life. As to receiving the $300, she testified that he gave her a check for that amount, which check afterwards turned out to be payable to him, and that she could not cash it; that she never...