In re Ulrici's Estate

• Decision Date: 04 November 1913
• Citation: 177 Mo. App. 584,160 S.W. 812
• Parties: In re ULRICI'S ESTATE. THOMPSON v. JOHNSTON.
• Court: Missouri Court of Appeals

160 S.W. 812

177 Mo. App. 584

In re ULRICI'S ESTATE.

THOMPSON v. JOHNSTON.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

Rehearing Denied November 18, 1913.

EXECUTORS AND ADMINISTRATORS (§ 182)— ALLOWANCE TO WIDOW—EXPENSES OF ADMINISTRATION.

Rev. St. 1909, § 114, provides that in addition to dower, the widow shall be allowed to keep, as her absolute property, books not to exceed $200, and family wearing apparel, provisions, furniture, etc., not to exceed $500 in value. Section 115 provides that if the provisions allowed be not on hand at the time of inventory, the court shall make reasonable appropriation out of the assets of the estate to supply the deficiency. Section 116 provides that in addition to the above the widow may take such personal property as she chooses, not to exceed $400 in value. Section 118 provides that if a widow does not receive the property so allowed, and it be sold by the administrator, the court shall order the money to be paid to the widow at any time before it is paid for debts or distributed. Administration Law (Rev. St. 1909) § 10, provides that if the estate be no greater than the amount allowed as the absolute property of the widow, administration shall be dispensed with. Held that a widow is entitled to have her absolute allowance paid out of her husband's estate before payment of the expenses of litigation by the administrator in an unsuccessful attempt to defeat her right to the statutory allowance.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Proceeding by William Thompson, administrator, against Erika Johnston, involving the estate of Charles R. Ulrici, deceased. From a judgment for defendant, plaintiff appeals. Affirmed.

Fred Armstrong, Jr., of St. Louis, for appellant. Stephen C. Rogers, of St. Louis, for respondent.

NORTONI, J.

This is an appeal by the administrator from a judgment sustaining exceptions preferred by the widow of his decedent against his final settlement.

The question for decision pertains to the right of the widow to have her absolute allowance satisfied from the estate of her husband first of the expense of administration, and especially of costs and expenses accrued in litigation through which the administrator attempts to defeat her right to the statutory absolute allowance.

It appears that Charles R. Ulrici departed this life in 1898, and that the exceptor, Erika Johnston, was his widow, though she has since remarried with Johnston, whose name she bears here. At the time of the death of exceptor's husband, Charles R. Ulrici, he left no estate of which his widow was advised. Because of this fact no application was made to the probate court touching the matter, either for an administration or an order for nonadministration. However, at the time of his death, Charles R. Ulrici owned a one-fourth interest in a paid-up policy of insurance on the life of his father, Rudolph W. Ulrici, which one-fourth interest amounted to $778. Subsequently, about nine years thereafter, in March or April, 1907, Rudolph W. Ulrici, the life insured, passed, and the policy thereon became payable to the beneficiaries therein stipulated. Thereupon the appellant, William B. Thompson, was appointed administrator of the estate of Charles R. Ulrici, decedent, in the probate court of the city of St. Louis for the purpose of collecting and distributing the one-fourth interest in the policy of life insurance then payable to Charles R. Ulrici's estate. There was paid to the administrator by the insurance company the one-fourth portion of the insurance money due under the policy to his decedent, amounting at the time to $778, which, together with accrued interest thereon, totaled $817.91. The administrator inventoried this, and charged himself with the amount stated as assets of the estate of Charles R. Ulrici, decedent, in the probate court. It seems that the decedent left no debts unpaid, or at least no demands on that account were filed against the estate. On June 7, 1907, the exceptor here, the widow of Charles R. Ulrici, filed a motion in the probate court praying that the widow's allowance in lieu of provisions be awarded to her under the statutes in the amount of $360, and furthermore that the widow's absolute allowance of $400 be likewise awarded to her out of the $817.91 then in the hands of the administrator. This matter came on for hearing in the probate court, and on September 21, 1907, that court awarded the widow $300 in lieu of provisions, but omitted entirely to make an order touching or to allow her claim for $400 as an absolute allowance. From the order awarding the widow $300 in lieu of provisions, the administrator appealed to the circuit court, and the matter was there litigated anew. The circuit court reduced the amount of the allowance in lieu of provisions, and awarded the widow $240 therefor. From this judgment of the circuit court the administrator prosecuted an appeal to this court, but the judgment was affirmed here, as will appear by reference to the case of Johnston v. Thompson, 145 Mo. App. 463, 122 S. W. 761. This amount, $240, allowed in lieu of provisions, together with $25 interest thereon, was finally paid by the administrator. During the interim while the case was pending on appeal, and on April 17, 1909, the widow filed a second motion in the probate court, praying that she be awarded her absolute allowance of $400 from the funds in the hands of the administrator, on which matter, though prayed in the former motion, the probate court had omitted to act. This motion for the absolute allowance, too, was opposed by the administrator, but unsuccessfully; for the probate court awarded the sum to the widow as prayed. From this judgment of the probate court, the administrator appealed to the circuit court for the purpose, it is said, of maintaining the matter in statu quo until the decision of this court on the widow's right to an allowance in lieu of provisions. Thereafter, on December 17, 1909, the circuit court affirmed the judgment of the probate court, and thereby ordered paid to the widow her absolute allowance of $400. No appeal was prosecuted from this judgment of the circuit court, and although its mandate was duly transmitted to the probate court without delay, the amount remained unpaid. From this it appears that though the widow's original claim for an allowance of $360 for provisions was reduced to $300 and allowed in the probate court, and by the circuit court reduced a second time to $240 and allowed, and that judgment affirmed on appeal here, which was paid, she was also allowed $400 as her absolute allowance or a sum total, adding the two together, of $640, to be paid from the funds in the hands of the administrator. In his first annual settlement exhibited in the probate court June 9, 1908, the administrator took credit for a number of items expended in and about this litigation and in his final settlement did likewise. In his annual and final settlement, the administrator took credit for and charged the estate with the expenses incident to the litigation and the several appeals therein, which were prosecuted to the end of defeating the allowances so made to the widow. Such items of expense so charged to the estate relate to the filing fee on appeal to the circuit court, bill of exceptions, docket fee, and transcript, printing abstract of record, and brief, costs in the circuit court in the first case, and costs in the circuit court pertaining to the $400 allowance, copy of testimony used in stipulations, attorney's fee, and an amount of $25.60 for interest on the allowance of $240 in lieu of provisions awarded to the widow. These items together total the sum of $205.35, and it is to the allowance of these as credits to the administrator and charges against the estate in the settlement that the...