In re Rash's Estate

• Decision Date: 04 December 1923
• Docket Number: No. 18231.,18231.
• Parties: In re RASH'S ESTATE. RASH v. RASH
• Court: Missouri Court of Appeals

256 S.W. 525

In re RASH'S ESTATE.

RASH v. RASH

No. 18231.

St. Louis Court of Appeals, Missouri.

December 4, 1923.

Appeal from Circuit Court, Shelby County; Vernon L. Drain, Judge.

"Not to be officially published."

In the matter of the estate of Notley M. Rash, deceased. Suit by C. W. Rash, as administrator of the estate of Mary Addah Rash, deceased, against Levi R. Rash, as executor of the estate of Notley M. Rash, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

James P. Boyd, of Paris, Mo., for appellant.

Harry J. Libby, of Shelbina, for respondent.

DAVIS, C.

This suit is here on appeal from the circuit court of Shelby county, on appeal there from the probate court. It is an action by the widow of Notley M. Rash for the absolute property allowed the widow by the provisions of sections 105, 106, and 107 of the Revised Statutes of Missouri 1919. Both the probate court and the circuit court, on appeal, in lieu of grain, meat, or other provisions not on hand at the time of taking the inventory, awarded the widow $2.000.

The sole issue in this cause is whether the allowance to the widow of $2,000 for the 12 months, in lieu of grain, meat, and other provisions not on hand, was unreasonable, excessive, and an abuse of discretion on the part of the trial court.

Sections of the Revised Statutes 1919, or parts thereof, by which we are to be guided in determining the questions raised, are as follows:

"See. 105. In addition to curtesy and dower, the widower or widow shall be entitled to keep as his or her absolute property * * * all grain, meat, vegetables, groceries, and other provisions on hand and provided and necessary for the sustenance of the widower or widow and family for twelve months."

"Sec. 106. If the grain, meat, or other provisions, allowed the widower or widow in the preceding section shall not be on hand at the time of the taking the inventory, the court shall make a reasonable appropriation out of the assets of the estate to supply such deficiency."

The evidence before the circuit court tended to show that Notley M. Rash died testate, in Shelby county, June 28, 1921. He left surviving him his widow and six adult children, all married except one, and, as his executor, his son, Levi R. Rash. His widow was of unsound mind, incapable of managing her affairs, and another son, Clarence W. Rash, was, by the probate court, appointed guardian of her person and estate. Pending this action the widow died March 9, 1922, and Clarence W. Rash, respondent herein, was appointed her administrator by the probate court, and this cause was revived in his name.

The estate of Notley M. Rash was appraised at $29,177, of which the real estate was valued at $15,500 and government bonds, notes, and cash at $13,520. The allowed demands were $2,398.25. The widow, at her husband's death, was 66 years old, was a senile epileptic, and had been for several years before his death, and had to be constantly watched. Before his death she was stricken with apoplexy, her lower limbs were palsied, and she was confined to her bed or a wheel chair, a helpless cripple, the worst her son ever saw or heard tell of, unable to turn over, requiring constant attention day and night, just alive, and that was all. After her husband's death she suffered a second stroke that palsied her tongue, so that she was unable to use her false teeth. While she partook of the ordinary foods, her diet was restricted, consisting principally of oatmeal, milk, meat, and vegetables, but the meat and vegetables had to be prepared in a soft or liquid form. Sometimes she partook of her meals in a wheel chair, but the greater part of the time in her bed. She occasionally ate pastry, but this she did not easily digest. Her bodily and mental ailments were such as to require nursing constantly, day and night, and her guardian, to provide for her care, employed two nurses to attend and minister to her. To this end he employed her two daughters, one single and living at her mother's home at the time of her father's death, and the other married and living with her husband in Monroe county. To secure the attention of the daughters the guardian agreed that both daughters were to be boarded and lodged in the mother's home, and that the husband of the one married was to live there. These four were constantly there. The other children came at intervals. The allowance of $2,000 was made in the probate court on December 28, 1921, and the cause was tried de novo in the circuit court, on appeal, after the death of the widow, on June 8, 1922. In the opinion of one witness, food for the widow alone would have amounted to from $200 to $250 for the year. The sum of $640 was actually spent in less than nine months in providing for the widow and household, including lights and fuel, but the amounts are not itemized.

I. Appellant insists that the cause is triable here de novo. To that we agree. As was said by our Supreme Court:

"The uniform unbroken practice in this state has been to try all controversies growing out of final settlements in the probate court, and concerning the widow's rights in personalty, by the court without a jury."

Again:

"We think it has been settled by this court that such cases are in the nature of suits in chancery and triable as such in the probate court and the circuit court, and de novo as such upon appeal to this court....