In re Rombauer Estate

Decision Date06 April 1923
Docket NumberNo. 23441.,23441.
Citation256 S.W. 1066
PartiesIN RE ROMBAUER ESTATE. KIRKSVILLE SAV. BANK v. CITIZENS' NAT. BANK.
CourtMissouri Supreme Court

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Petition by the Kirksville Savings Bank for sale of realty of the estate of R. G. Rombauer, deceased, opposed by the Citizens' National Bank. From a judgment aginst petitioner, it appeals. Affirmed.

J. B. Rieger and A. Doneghy, both of Kirksville, for appellant.

Campbell & Ellison and W. F. Frank, all of Kirksville, for respondent.

SMALL, C.

I. Appeal from the circuit court of Adair county.

The appellant, Kirksville Savings Bank, on August 17, 1921, filed a petition in the probate court of said county, stating: That the personal estate of R. G. Rombauer, deceased, whose estate was being administered in said probate court, was insufficient to pay his debts and legacies, and that his executors have made no application to said court, stating said facts, and "praying for the sale of real estate, or so much thereof, as will pay the debts and legacies of the said deceased, and that said R. G. Rombauer died seized of real estate in Adair county, Mo., described as lot 5, in block 4, Wilson's addition to the town, now city, of Kirksville, Mo., and the same was the homestead on which R. G. Rombauer resided with his family at the date of his death, and the said real estate is worth more than, and at the date of his death was worth more than $1,500, to wit, the sum of $3,000, and that said real estate consists of less than 5 acres of land, to wit, a tract 54 feet by 108 feet, and that said city contains less than 10,000 population, and that Rombauer left him surviving, a wife or widow, Jennie U. Rombauer," and Mathilda Henry, a daughter, who departed this life, after the death of said R. G. Rombauer, leaving two children, Eugene Henry and Guido Henry, who are the only heirs or devisees of said R. G. Rombauer residing in said county. That the said petitioner, Kirksville Savings Bank, was at the time of the decease of said Rombauer, a creditor of said Rombauer, and its claim for $200 has been duly presented and allowed against his estate, and the petitioner has given dud notice of its application to the executors of said Rombauer. That said real estate, exclusive of the homestead and dower rights of the widow and heirs of said Rombauer, is of the value of $1,000. "Wherefore, your petitioner prays an order of sale of the above described land or as much thereof as will pay the debts and legacies of the said R. G. Rombauer, deceased."

The Citizens' National Bank appeared in said probate court, and filed objections to said application to sell said property: First, because the circuit court of said county had theretofore directed the said land to be sold by the sheriff, and said sheriff did sell the same, and said Citizens' National Bank, being the highest and best bidder at said sale, purchased said land thereat, and received a sheriff's deed therefor, and is the owner thereof. Second, because, under the facts stated in petitioner's application for an order to sell said land, the probate court has no jurisdiction to make an order of sale, and said order, if made, would simply cloud the title, and cause said land to sell at a sacrifice.

The probate court, after a hearing, found against the petitioner, and rendered judgment accordingly. The petitioner thereupon appealed to the circuit court.

At the January term, 1922, of said circuit court, the Citizens' National Bank filed a general demurrer to said petition. Upon the filing of said demurrer, the petitioner, Kirksville Savings Bank, filed a motion to strike said demurrer from the files. The court overruled the motion to strike, sustained said demurrer, rendered final judgment against the petitioner, Kirksville Savings Bank, and refused its motion for new trial. Thereupon, said savings bank duly appealed to this court.

II. We think the court below was right. The probate court had no jurisdiction to sell the land sought to be sold for the payment of the debt allowed against the estate of R. G. Rombauer, because said property included the homestead of the deceased, and to the extent of $1,500 was exempt from execution in his lifetime, and at his death became, to that extent, the property of his widow and child. Dennis v. Gorman, 289 Mo. 1, 233 S. W. 50; Balance v. Gordon, 247 Mo. 119, 152 S. W. 358; Armor v. Lewis, 252 Mo. 568, 161 S. W. 251; In re Ehlers v. Potter (Mo. Sup.) 219 S. W. 915; Dalton v. Simpson, 270 Mo. 287, 193 S. W. 546. These authorities show that the homestead is not subject to sale under the general provisions of law relating to the administration of the estates of decedents, but that it can only be sold in pursuance of provisions of the Homestead Law; that the homestead is an estate sui generis, not governed by the general law relating to the descent and distribution of estates, but is governed wholly by the Homestead Law,...

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